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:

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

Court" is hereby amended to read as follows:

     8-2-39.3. Superior court diversion.

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

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

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

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

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

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

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

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

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

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

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

recidivism.

     (b) Definitions:

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

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

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

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

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

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

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

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

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

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

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

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

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

this subsection.

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

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

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

offense, as defined in this section;

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

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

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

and the time of commission of the present felony);

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

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

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

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

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

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

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

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

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

and regulations

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

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

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

the state.

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

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admitted into the program.

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

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

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

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

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

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

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

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

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

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

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

limitations and/or right to a speedy trial.

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

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

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

court criminal calendar in the county that the case originated.

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

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

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

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

standards and procedures governing the judicial diversion program.

     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

diversion program.

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