Stephen G. Cobb - Florida Criminal Defense Lawyer

Comparison Between A Negotiated Dismissal And A Diversion Program


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Let’s compare a negotiated dismissal with a diversion program. This is the setup for when a prosecutor has an overconfident defendant wandering into court and representing themselves. A diversion program seems like a really good deal but involves the following conditions. Number one, you will have to enter a plea of no contest. Prosecution will be deferred for an entire year. During that period of time, if everything is completed, the plea agreement is withdrawn, and the charges will be dismissed. But there is a key difference right away, such as the difference between a few days versus a year, but there’s more. There will be a monthly report to a probation officer, and each and every monthly report is going to cost $50 plus a 4% monthly surcharge. That’s $52 a month. Right away, you are looking at $650 over the course of a year. That’s more than twice what a negotiated dismissal will normally cost.

In addition to that, there will be domestic violence counseling every single week for approximately six months. It’s going to be a long period of time, and that counseling will cost $700 to a $1,000. There will also be the cost of prosecution, which will be $5,200. Most diversion programs have a very strict requirement of no alcohol at all, not a drop for a year, plus you have to pay to be randomly breath-tested. There you are, living your life, doing your own thing. Hey! Stop what you are doing right now! Come on down and take a breath test. If you don’t, you get kicked out of the diversion program, you proceed directly to sentencing, and the judge can sentence you up to a year because you have already entered a plea of no contest. It’s a very rigged system, to say the very least.

In addition to no alcohol, there is regular, random drug testing. If, God forbid, you turn up positive on one of these tests, you have to pay for that drug testing separately as well. This is going to run a lot of money over the course of a year, ranging from $100 to $300. And what about court costs? Those total $662. This is the reality, and any violation of this “really good diversion program” means free room and board, no bond and sentencing up to a year. This is the realistic difference between a negotiated dismissal done by your private lawyer and a diversion program that the state attorney pretends that he is reluctantly giving you.

The reason he is doing that is because he is setting you up to fail. Why would this happen? Why would a prosecutor that sounds so sincere in the courtroom do something like this? It’s called politics. The state’s attorney in 20 different districts of Florida is an elected politician. This individual runs by party preference, which means that in an area that’s dominated by Democrats, you are going to have a Democrat running for prosecutor. In an area that’s dominated by Republicans, you will have a Republican running for prosecutor. In an area that is pretty close, there are going to be some very careful judgement calls being made in decisions because crime and politics are intertwined very tightly, and no prosecutor runs on a platform of let’s be smart on the problem of crime.

Instead, prosecutors run on the tried and true formula of scaring people and being tough on crime. What we need instead is a smarter way to do things, such as when people are charged with an assault and battery charge, whether it’s domestic or non-domestic they should do the smartest thing possible, which is to treat it like you would a heart attack or brain cancer. This means getting the very best certified expert that you can who will deliver you the best service possible, and that way you’ll have the greatest odds and likelihood of having a successful outcome as opposed to paying all that money and spending all that time for an entire year with what feels like a sword hanging over your head ready to cut your life apart.

Does Someone Need A Lawyer If The Opposing Party Is Willing To Drop Charges?

The answer to that common question is absolutely because when the complaining witness goes down to the prosecutor’s office, they meet with someone with a wonderful title, “the victim’s advocate,” which means that they are on their side, right? Somebody trots down to the prosecutor’s office and sits down with the victim’s advocate, who seems so nice. Would you like a cup of coffee? Can I get you a soda? Some water? They are just really nice, but there is some strange guy in that room as well with what looks to be a law enforcement badge hanging off a belt buckle. There is also someone in civilian clothes, who just happens to be carrying a gun as well.

As the interview goes on, the victim’s advocate will say, “We don’t want you to go to court and say something that is not true under oath. That would be a felony.” The complaining witness, whom the state will always call a victim, will say, “Yeah. I don’t want to commit a felony.” They are thinking, this isn’t going to be so bad. That’s when the victim’s advocate says,”I want you to meet so and so here. So and so works with our office and is a real certified Florida law enforcement officer. Take a real good look at your statement because, just as we don’t want you to go to court and say something that’s not true, if you say anything different from what’s on this form right here, you are going to jail immediately.” What do you think happens in that scenario?

The person is sitting there thinking, “I don’t want to prosecute because I love the person, and we are going to counseling,” as well as, “Oh my God! That guy has a big gun, and he’ll take me to jail.” In other words, all the testimony that would be in the request to drop charges, which would actually result in the state’s case being damaged, has been instead enhanced so that the state’s case is actually stronger. A defense attorney has an entirely different protocol, and there have been lawyers, who should have known better, telling complaining witnesses that they should go down to the state attorney’s office and request to drop charges. This is exactly the wrong thing to do.

Defense attorneys have a way to get that information and give it to the prosecutor’s office without getting anybody in any undue risk and certainly protecting their client because when people self-represent, they may be overconfident. For example, their partner or friend may have had an argument with them and will run down to the prosecutor’s office; however, instead of the defendant’s case being stronger and more likely to result in a dismissal, just the opposite happens. This is another example of how people can be well meaning but do something where what they meant to help their case can actually hurt their case terribly.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Negotiated Dismissal Vs. Diversion Program, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

Get your questions answered - call me for your free, 20 min phone consultation (850) 466-1522

Related Articles

Related Topics