Fla. Stat. § 916.135 — Florida Code / Title XLVII / Chapter 916 / Part II / Section 916.135
916.135 Misdemeanor or ordinance violation mental health diversion program.
Status: in_force

(1) As used in this section, the term: (a) “Court” means a circuit court, a county court, or any court presiding over felony, misdemeanor, or ordinance violations under the laws of this state or any of its political subdivisions. (b) “Defendant” means a person who has been charged as an adult by a law enforcement agency or a state attorney solely with a misdemeanor offense or an ordinance violation under the laws of this state or any of its political subdivisions. (c) “Qualified mental health professional” means a physician, a physician assistant, a clinical psychologist, a psychiatric nurse, an advanced practice registered nurse registered under s. 464.0123, or a mental health counselor, a marriage and family therapist, or a clinical social worker, as those terms are defined in s. 394.455. (d) “Receiving facility” has the same meaning as in s. 394.455.

(2) A community desiring to establish a misdemeanor or ordinance violation mental health diversion program to divert clinically appropriate defendants from jails to treatment is encouraged to apply for the Criminal Justice, Mental Health, and Substance Abuse Reinvestment Grant Program under s. 394.656 for the purpose of obtaining funds to plan, implement, or expand such mental health diversion programs. This section provides a model process for diverting such defendants to treatment, but the process may be modified according to each community’s particular resources. A community that obtains a grant pursuant to s. 394.658 must adhere to the processes in this section to the extent that local resources are available to do so. (a) The local sheriff’s department, the state attorney, the public defender, the court, and local treatment providers may collaborate to establish policies and procedures to meet the specific needs of each community and to develop a form that a defendant must sign to consent to treatment. (b) A consent form must include the defendant’s consent to treatment and to the release of any records necessary to demonstrate compliance with and completion of treatment. Additionally, the consent form must include that the defendant agrees to waive his or her right to a speedy trial by participating in the diversion program. A defendant must sign the consent form to participate in the diversion program.

(3) Within 24 hours after a defendant is booked into a jail, the jail’s corrections or medical staff may screen the defendant using a standardized, validated mental health screening instrument to determine if there is an indication of a mental illness. If there is an indication of a mental illness, the defendant may be promptly evaluated for involuntary examination under chapter 394 by a qualified mental health professional. In conducting this evaluation, the qualified mental health professional may evaluate the defendant as if he or she is at liberty in the community and may not rely on the person’s incarcerated status to defeat the involuntary examination criteria provided for in s. 394.463. (a) If the evaluation demonstrates that the defendant meets the criteria for involuntary examination under s. 394.463, the qualified mental health professional may issue a professional certificate referring the defendant to a receiving facility. (b) Upon the issuance of a professional certificate, the defendant must be transported within 72 hours to a receiving facility for further evaluation for involuntary examination under chapter 394. Such transport may be made with a hold for jail custody notation so that the receiving facility may only release the defendant back to jail custody. Alternatively, the court may request on the transport order that the defendant be transported back to appear before the court, depending upon the outcome of the evaluation at the receiving facility, the court’s availability of other resources and diversion programs, and the willingness of the defendant to receive treatment. (c) Once at the receiving facility, the defendant may be assessed and evaluated to determine whether he or she meets the criteria for involuntary services under chapter 394. If the criteria are met, the receiving facility may forward the court a discharge plan when the defendant no longer meets criteria for inpatient treatment, or an outpatient treatment plan, as appropriate, as soon as such a plan is developed. If the defendant does not meet the criteria for involuntary services, the receiving facility may issue an outpatient treatment plan and forward it to the court as soon as such plan is developed. If appropriate, the receiving facility may notify the court that no treatment is necessary. (d) Upon receipt of a discharge plan or an outpatient treatment plan, the court may consider releasing the defendant on his or her own recognizance on the condition that he or she comply fully with the discharge plan or outpatient treatment plan. The state attorney and the defense attorney must have an opportunity to be heard before the court releases the defendant. (e) If a professional certificate is not issued under paragraph (a), but the defendant has a mental illness, the court must order that the defendant be assessed for outpatient treatment by a local mental health treatment center. This assessment may be completed: 1. At the jail via telehealth assessment by the local mental health treatment center; 2. At the local mental health treatment center after the sheriff or jail authorities transport the defendant to and from the treatment center; or 3. By releasing the defendant on his or her own recognizance on the conditions that the assessment be completed at the local mental health treatment center within 48 hours after his or her release and that all treatment recommendations be followed. If the assessment under this paragraph results in an outpatient treatment plan, and the defendant has not already been released, the defendant may be released on his or her own recognizance on the condition that all treatment recommendations must be followed. The state attorney and the defense attorney must have an opportunity to be heard before the court releases the defendant. (f) If the defendant is released from the custody of the jail on pretrial release at any point before the completion of the process in this section, evaluation or assessment of the defendant under this section by a qualified mental health professional may be initiated at any time by order of the court at the request of the state attorney or the defense attorney, or on the court’s own motion. If this process results in the creation of a discharge plan by a receiving facility or an outpatient treatment plan by the local mental health treatment center, the court may set as a condition of the defendant’s continued pretrial release compliance with all of the terms of the discharge plan or outpatient treatment plan.

(4) If a defendant has not been referred to the diversion program under this section, the state attorney, the defense attorney, or the court may, at any stage of the criminal proceedings, request that the defendant be screened pursuant to subsection (3) to determine if there is an indication of mental illness. If the defendant is no longer in custody, the defendant may be evaluated or assessed pursuant to paragraph (3)(f).

(5) Upon the defendant’s successful completion of all of the treatment recommendations from any mental health evaluation or assessment completed pursuant to this section, the state attorney must consider dismissal of the charges. If dismissal is deemed inappropriate by the state attorney, the state attorney may consider referral of the defendant’s case to mental health court or another available mental health diversion program.

(6) If the defendant fails to comply with any aspect of his or her discharge or outpatient treatment plan under this section, the court may exhaust therapeutic interventions aimed at improving compliance before considering returning the defendant to the jail.

History: s. 4, ch. 2025-180.