State v. ClevelandState v. Cleveland
This is a petition for writs of common law certiorari and prohibition wherein the State of Florida seeks review of an order entered by the Circuit Court requiring the Department of Corrections to accept defendant into the pretrial intervention program created
(1) The department shall supervise pretrial intervention programs for persons chargеd with a crime, before or after any information has been filed or an indictment has been returned in the Circuit Court. Such programs shall provide appropriate counseling, education, supervision, and medical and psychological treatment as available and when appropriate for the persons released to such programs.
(2) Any first offender who is charged with any misdemeanor or fеlony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the State Attorney, and the judge who presided at the initial appearance hearing of the offender. In no case, however, shall any individual be so released unless, after consultation with his attorney or one made available to him if he is indigent, he has voluntarily agreed to such program and has knowingly and intelligently waived his right to a speedy trial for the period of his diversion. In no case shall the defendant or his immediate family personally contact the victim or his immediate family to acquire the victim‘s consent under the provisions of this act.
The defendant was charged with welfare fraud, a third degree felony under
This office does not consent to any person charged with the instant offense [welfare fraud] being admitted into the pretrial intervention program duе to the serious and widespread nature of said offense and the impact said offense has on the general taxpayer and public at large.
At the defendant‘s request and over the State‘s objеction, the trial court held a hearing to review the State Attorney‘s reasons as stated above and found them to be “... wholly subjective and inarticulate, without basis in law, contrary to legislative intent, and therefore, arbitrary, capricious and without legal reason or justification.” In so concluding, we find that the trial court departed from the essential requirements of law and acted outside of his appropriate jurisdiction.
The determinative issue is whether diversion into the Florida pretrial intervention program is a prosecutorial or a judicial decision. We conclude that the program as established by the Legislature is within the prosecutorial rather than the judicial realm; therefore, the State Attorney‘s reason for denying consent may not be reviewed by the Circuit Court. In reaching this conclusion we аre aware of the Second District‘s contrary result in State v. Eash, 367 So.2d 661 (Fla. 2d DCA 1979), cert. denied, 374 So.2d 101 (Fla. 1979).
A review of
In reaching a contrary result, the trial court relied upon State v. Eash, supra, the only authority in this State dealing with a similar question. In Eash, the trial court examined the portion of the pretrial intervention statute requiring that the admittee waive his right to speedy trial for the period оf diversion. The trial court construed that nature and extent of the necessary waiver document in a specific order interpreting the statute. The State disagreed with the Court‘s interpretation but instead оf seeking review of the interpretative order, simply refused to consent, asserting that the trial court‘s order was wrong. The trial court later ordered the Department of Offender Rehabilitation to admit the defendant or, in the alternative, the case would be dismissed. Eventually, after the State further refused to consent, the trial court dismissed the information. On appeal, the Second District affirmed the trial cоurt‘s finding that the State‘s action had been arbitrary and capricious but reversed the dismissal of the charges. In doing so, the Second District further held that the consents of all concerned must be rationally exercised consistent with the legislative purpose and that the trial court can properly determine whether the State Attorney has lawfully exercised his consensual discretion. We respectfully disagree and hold that the exercise of consensual discretion by the State Attorney under such circumstances is a matter which may not be reviewed by the Circuit Court with trial jurisdiction over the case.
Furthermore, sinсe our statute requires consent from the victim, it is difficult for us to theorize how the trial court could review the victim‘s refusal to consent for irrationality. We have been directed to similar pretrial interventiоn programs existing in the states of New Jersey, Pennsylvania, and California for precedent on the subject, but none of these out-of-state programs contain victim consent as a requirement. See State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976), aff‘d and clarified on rehearing, 73 N.J. 360, 375 A.2d 607 (1977); Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977); People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal. Rptr. 21, 520 P.2d 405 (1974). The requirement of victim consent in our statute compels us to conclude that the trial court does not have the power to overrule the victim if he chooses not to consent.1
Consent from the judge who presided at the defendant‘s initial appearance hearing is also required under the statute. Contrary to Eash, we construe this statutory consent as applicable to the judge presiding at the defendant‘s first appearance hearing as defined by
The Florida pretrial intervention program, unlike the California plan, does not contemplate judicial review of the consents of those required. In California the District Attorney scrеens offenders for eligibility and the probation department investigates the facts. The trial court then makes the ultimate decision on whether a defendant should enter the diversion program. See People v. Superior Court of San Mateo County, supra. Similarly, in State v. Leonardis, supra, the Nеw Jersey Supreme Court ruled that their state pretrial intervention program was subject to judicial supervision. Unlike the Florida plan, however, the New Jersey plan was adopted pursuant to court rulе. The Florida statute vests no authority directly in the trial judge to review the determinations of entry into the program. As the Pennsylvania court held in Commonwealth v. Kindness, supra,2 the Court simply does not possess the power to overrule the prosecutor and order pretrial diversion.
We believe the decision to divert a defendant into the Florida pretrial intervention program, as stated in the statute, is basically within the prosecutor‘s funсtion of charging and prosecuting. If the prosecutor refuses to consent to an applicant‘s entry into the program, that defendant may not seek review in the Circuit Court on the theory of an arbitrаry and capricious decision by the State Attorney. The system is one of balancing. If the prosecutor takes the case to trial and the defendant is found guilty, the trial judge has the discretion under the law to sentence the defendant in whatever fashion the trial court sees fit. Indeed, the Eash case makes it clear that the State Attorney must still make the final determination as to whether prosecution will continuе.
We conclude that the trial court acted beyond the scope of its jurisdiction in reviewing the reasons for the prosecutor‘s refusal to consent. The order below is quashed and the cause rеmanded for further proceedings.
QUASHED AND REMANDED.
LETTS, C.J., and GLICKSTEIN, J., concur.