Fla. Stat. § 916.136 — Florida Code / Title XLVII / Chapter 916 / Part II / Section 916.136
916.136 Pretrial felony mental health diversion program.
Status: in_force

(1) As used in this section, the term: (a) “Conviction” means a determination of guilt that is the result of a plea agreement, including a plea of nolo contendere, or trial. For purposes of this section, a conviction does not include an offense for which an adjudication of guilt was withheld. (b) “Court” means a circuit court or any court presiding over felony violations under the laws of this state or any of its political subdivisions. (c) “Defendant” means a person who has been charged as an adult by a law enforcement agency or a state attorney with a felony of the second degree or felony of the third degree, and who is eligible for the diversion program as provided in subsection (3). (d) “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.

(2) A community desiring to establish a pretrial felony 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 programs. This section provides a model process for diverting such defendants to treatment, but this process may be modified according to each community’s particular resources. (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, such 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) A defendant may be eligible for the pretrial felony mental health diversion program under this section if he or she meets the following criteria: (a) Has a mental illness; (b) Has no more than three prior felony convictions in the past 5 years; (c) Is not charged with a violent felony; and (d) Does not have a significant history of violence. The state attorney has the sole discretion to determine a defendant’s eligibility for the pretrial felony mental health diversion program. Meeting the criteria in this subsection does not guarantee eligibility. Additionally, the state attorney may, in extenuating circumstances, waive the criteria in this subsection if he or she finds that it is in the interest of justice.

(4) At any stage in the pretrial process, the state attorney may recommend that a defendant be screened using a standardized, validated mental health screening instrument to determine if there is an indication of mental illness. Such screening may be completed by the jail’s corrections or medical staff or by any qualified mental health professional. The results of such screening must be forwarded to the state attorney and the defense attorney.

(5) If there is an indication of mental illness, the state attorney may consider an offer of pretrial felony mental health diversion under this section. Entry into the diversion program is voluntary, and the defendant must sign the consent form as described in subsection (2) before participating in the program.

(6) Upon the defendant agreeing to participate in pretrial felony mental health diversion under this section, the defendant must be assessed for outpatient treatment by a local mental health treatment center. This assessment may be completed: (a) At the jail via telehealth assessment by the local mental health treatment center; (b) At the local mental health treatment center after the sheriff or jail authorities transport the defendant to and from the treatment center; or (c) 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 subsection 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 be followed.

(7) Upon the defendant’s successful completion of all treatment recommendations from the mental health evaluation or assessment completed pursuant to this section, the state attorney must consider dismissal of the charges.

(8) If the defendant fails to comply with pretrial release or with any aspect of his or her treatment plan under this section, the state attorney may revoke the defendant’s participation in the pretrial felony mental health diversion program.

History: s. 5, ch. 2025-180.