2019 -- S 0962 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE--COURTS -- SUPERIOR COURT

     

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: June 06, 2019

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 8-2-39.3 of the General Laws in Chapter 8-2 entitled "Superior

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Court" is hereby amended to read as follows:

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     8-2-39.3. Superior court diversion.

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     (a) In accordance with § 8-6-2, the superior court may create, with the approval of the

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supreme court, rules for a superior court diversion program (the "program"). The presiding justice

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may assign a justice or magistrate to administer the diversion program, in which the defendant

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enters a plea to the pending matter and agrees to written contractual conditions of diversion with

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the justice or magistrate, including reporting to the court as instructed for reviews, until such time

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as the defendant has completed the diversion program to the court's satisfaction and all reviews

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are completed. Contractual conditions may include, but are not limited to, compliance with

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counseling, community service, and restitution obligations. The program is designed to offer an

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alternative to traditional conviction, sentencing, and incarceration by providing eligible

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defendants with a framework of supervision and services in lieu of incarceration and/or probation

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to help them make informed decisions, engage in positive behavior, and reduce the risk of

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recidivism.

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     (b) Definitions:

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     (1) "Disqualifying offense" includes murder, manslaughter, first-degree arson,

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kidnapping with intent to extort, robbery, felony assault-serious bodily injury, larceny from the

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person, burglary, entering a dwelling house with intent to commit murder, robbery, sexual assault,

 

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any domestic violence offense as defined in chapter 29 of title 12, felony driving while

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intoxicated, driving while intoxicated-death resulting, driving while intoxicated-serious bodily

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injury resulting, possession of greater than one ounce (1 oz.) or greater than one kilogram (1 kg.)

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of a controlled substance, excluding marijuana, possession of greater than five kilograms (5 kg.)

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of marijuana, any offense requiring sex offender registration pursuant to chapter 37.l of title 11;

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and child abuse as defined in § 11-9-5.3; all firearms offenses, as defined in chapter 47 of title 11,

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with the exception of: § 11-47-6, mental incompetents and drug addicts prohibited from

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possession of firearms; § 11-47-8, license or permit required for carrying pistol-possession of

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machine gun; § 11-47-52, carrying of weapon while under the influence of liquor or drugs. The

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definition shall also include any attempt or conspiracy to commit any of the offenses included in

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this subsection.

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     (2) "Eligible defendant" means any person who stands charged in a district court

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complaint, superior court indictment or a superior court information for a felony offense and:

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     (i) Has not been previously convicted of or plead nolo contendere to a disqualifying

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offense, as defined in this section;

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     (ii) Has not been previously convicted of or plead nolo contendere previously to two (2)

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or more felony offenses within the last five (5) years (excluding any time during which the

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offender was incarcerated for any reason between the time of commission of the previous felony

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and the time of commission of the present felony);

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     (iii) Has not been charged with a disqualifying offense as defined in this section.

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     (c) The procedure for referral and admission into the program shall be as follows:

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     (1) At any time after the arraignment of an eligible defendant, either in the district court

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or superior court, but prior to the entry of a plea of guilty or the commencement of trial, a referral

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may be made to the judicial diversion program's sentencing case manager. The referral may be

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made by a representative of the department of the attorney general, or counsel entered on behalf

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of a defendant or upon request by a justice of the superior or district court.

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     (2) The judicial diversion sentencing case manager shall ensure that the individual is an

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eligible defendant and satisfies any additional criteria established by the court through its rules

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and regulations

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     (3) The judicial diversion sentencing case manager shall submit his or her report to the

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justice or magistrate assigned to the program, indicating acceptance or rejection into the program.

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Upon receipt of the report, the court shall confer with counsel for the defendant and counsel for

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the state.

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     (4) Either party may request a hearing on the issue of whether the defendant should be

 

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admitted into the program.

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     (5) The superior court magistrate or justice assigned to the program shall make the final

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determination as to whether a defendant is admitted into the program.

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     (d) Notwithstanding the above provisions, if counsel for the department of attorney

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general and the counsel for the defendant agree that the defendant should be admitted to the

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program, he or she shall be deemed "eligible" and may be granted admission.

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     (e) Once the defendant has been accepted into the program, the defendant shall sign a

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contract. The contract will detail the requirements of the program, which requirements shall be

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consistent with the rules and regulations promulgated by the court. The defendant will be bound

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by the terms of the contract, which will set forth the court's expectations; the conditions imposed

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upon and the responsibilities of the defendant; and the treatment plan goals and strategies. In

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addition, by signing the contract, the defendant agrees to waive any applicable statute of

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limitations and/or right to a speedy trial.

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     (f) If a defendant fails to abide by the program's conditions and orders, he or she may be

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terminated from the program by the magistrate or justice assigned to the program. If a defendant

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is terminated from the program then he or she shall have his or her case placed on the superior

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court criminal calendar in the county that the case originated.

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     (g) The superior court may make such rules and regulations for the administration and

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enforcement of this chapter as it may deem necessary. Provided, further, notwithstanding any

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provision of the general or public laws to the contrary, the superior court shall have the power to

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adopt by rule or regulation, in whole or in part, any standards, rules, regulations, or other

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standards and procedures governing the judicial diversion program.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE--COURTS -- SUPERIOR COURT

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     This act would allow the presiding justice of the superior court, to create a superior court

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diversion program.

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