Florida Statutes authorize two kinds of "drug courts": 1) pretrial intervention programs under Florida Statute §948.08 (1993); 2) probationary programs under Florida Statute §948-034 (1993). Defendants can be eligible for drug court under two different provisions of §948.08, while §948-034 lists numerous categories of eligible defendants.

Most drug courts currently operating in Florida were implemented under the criteria set forth in §948-08, which was significantly amended in 1993. The amendment was added to the existing statute, thereby creating two different sets of criteria for admission to and implementation of drug courts. The purpose of §948.08, which is to authorize the use of "counseling, education, supervision, and medical and psychological treatment" for persons believed to have drug problems and charged with a specified criminal offense, however, did not change with the amendment. Fla. Stat. §948-08(l)(1993). The two relevant provisions under §948.08 will be described separately.
 
 

Section 948.08(2) provides that, "Any person who is charged with any nonviolent felony of the third degree is eligible for release to the pretrial intervention program...." The phrase "nonviolent felony" is defined and subsections (2)-(5) include the following key points:
 

· Consent for admission to the program must be obtained from the victim, state attorney, and judge who presided at the initial appearance.

· Defendant must agree to enter the program and waive speedy trial,

· Criminal charges against defendant are continued for 90 days initially and can be continued for an additional 90 days.

· Criminal proceedings against defendant shall resume whenever the state attorney or program administrator determines that the defendant is not fulfilling the program obligations or the public' Interest so requires.

· At the end of the intervention period, the administrator recommends that: 1) prosecution resume; 2) defendant continue in program; or 3) charges be dismissed without prejudice.

· The state attorney makes final determination as to whether prosecution shall continue.

Under this subsection, which is the 1993 amendment referred to above, the criteria for admission to a pretrial diversion program are different from those in §948.08(2)-(S).

"Notwithstanding any provision in this section, a person who is charged with a felony of the second or third degree for purchase or possession of a controlled substance under Chapter 893... is eligible for admission into a pretrial substance abuse education and treatment intervention program...... Fla. Stat. §948.08(6)(a)(1993).
 

Key components of Section 948.08(6) are as follows:

· Defendant cannot have any felony conviction or previously have been in a pretrial program referred to in the section.

· Program must be approved by the chief judge of the circuit.

· Defendant.is admitted to program for not less than one year.

· Admission may be on court's own motion or on motion of either party.

· State attorney can oppose admission and court shall deny admission if state attorney establishes at a preadmission hearing by a preponderance of the evidence that defendant was dealing in and selling controlled substances.

· At the end of the pretrial intervention period, court shall determine whether defendant successfully completed the program after considering the adminis-@rator's and state attorney's recommendations.

· The Court: 1) may order defendant to continue in program; 2) may order case referred to normal channels for prosecution; 3) shall dismiss charges if defendant successfully completes the program.

The primary difference between §948.08(2)-(5) and the 1993 amendment, 5948. 08 (6) , is the role of the state attorney and the court. In the former, the state attorney must consent to the defendant's admission arid has the final authority to decide whether the defendant will be prosecuted after participating in the intervention program.

On the other hand, the 1993 amendment authorizes the chief judge of a court to approve a pretrial intervention program and a defendant may be a admitted to the program on the court's own motion. In addition, the court must consider the state attorney's recommendation as to whether the defendant has successfully completed the program, but the court determines whether or not the defendant will remain in the program. The 1993 amendment has provided more flexibility for Florida jurisdictions that are interested in implementing a pretrial intervention drug court program.
 
 

This section authorizes the court to require defendants who violate Florida Statute S893.13(l)(a)l, (1)(d)l, (1)(a)2, or (1)(d)2, to complete a term of probation in lieu of serving a term of imprisonment. Section .893.13(l)() provides that "...it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." The specific provisions cited above designate the severity of the controlled substance offense charged. The requirements that must be fulfilled by the defendant during the term of probation are specifically set forth according to whether the defendant committed a first, second, or third degree felony and whether he or she had previously been convicted of the same felonies enumerated in the statute. All defendants who are required to complete probation under this section may be ordered to receive substance abuse education and treatment, thereby rendering this statute a "drug court" alternative.

The first category of defendants who may be sentenced to probation under §948.034 are those'who have violated Florida Statute §893.13(l)(a)l, a second degree felony, or Section 893.13(i)(d)l, a first degree felony. A person who has not previously been convicted of these offenses may be sentenced as follows:

Florida Statute Section 948-034(l)(a)(1993)-

· Adjudication withheld.

· Probation for not less than 18 months, as a condition of which the court shall require offender to reside at a community residential drug punishment center for 90 days.

· Placement into center subject to budgetary considerations and availability of bed space.

· If required to reside at center, court shall also require one or more of the following:

- $500 to $iO,000 fine

- attendance in and completion of a substance abuse education or treatment program, as well as a substance abuse evaluation.

- l00 hours or more of public service

- drug testing
 

- participation in self-help group, such as Narcotics, Alcoholics, or Cocaine Anonymous.

A person who has been previously convicted of one felony violation of Section 893-13(l)(a)l or (1)(d)l may be sentenced as follows:
 

Florida Statute Section 948.034(l)(b)(1993)

· Adjudication may not be withheld.

· Probation for not less than 24 months, with 180 days in a residential center.

· Placement into center subject to budgetary and bed space limitation.

· If required to reside at center, court shall also require one or more.of the following:

- $1,000 - $10,000 fine
- substance abuse evaluation, education, treatment

- 300 hours or more of community service
- drug testing

- participation in self-help group.

A person who has been previously convicted of two felony violations of Section 893.13(l)(a)l or (1)(d)l may be sentenced as follows:

Florida Statute Section 948.034(l)(c)(1993)-

· Adjudication may not be withheld.

· Probation for not less than 36 months, with 360 days in a residential center.

· Placement into center subject to budget and space limitations.

· If required to reside at center, court shall also require one or more of the following:

- $1,500

- $10,000 fine
- substance abuse evaluation/ education, treatment

- drug testing
- participation in self help group.

The second category of defendants who may be sentenced to probation under §948.034 are those who have violated Florida Statute §893 .13 (1) (a) 2, a third degree felony, or h893. 13 (1) (d) 2, a second degree felony. The sanctions that may be imposed during the term of probation for these violations become more severe with each previous conviction, as with the sanctions under §948.034(l)(a), (b), and (c). The sanctions themselves are also very similar to those described above, so they are not set forth here. The full text of §948.034 is included at the end of the appendix. Please refer to §948-034(2)(a), (2)(b), (2)(c), (2)(d) and (2)(e).

It should be noted that the Florida legislature revised portions of §893.L3 pursuant to the "Safe Streets Initiative of 1994, without revising §948-034 to make it conform to the changes in §893-13. Therefore, there are references in 9948-034 to §893- 13 (1) (e) 2, (1) ( i) 2, and (1) (f) , ,4hich are no longer in §893-13 in the same form. Until the legislature addresses this discrepancy, there will be some Uncertainty as to the applicability of revised portions of 9893.13 to §948.034.

In addition to other statutes discussed here, Florida Statute §§948-001 and 946.04 are relevant to the probationary "drug court". Section 948.001(4) defines "Drug offender probation," while §948.001(6) defines "CorrLmunity residential drug punishment center."The statute designates the Department of Corrections as theagency that will adoot rules as necessary to define and operatesuch centers. Section 948.04 indicates that defendants placed on probation pursuant to §948.034 are not restricted to a two-year term of probation, as are most other defendants.