Title 8
Courts and Civil Procedure — Courts

Chapter 2
Superior Court

§ 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 presiding justice may assign a justice or magistrate to administer the diversion program. 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 37.1 of title 11; and child abuse as defined in § 11-9-5.3; and 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; and § 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 or for a misdemeanor offense in violation of § 21-28-4.01(c)(2)(i) and:

(i) Has not been previously convicted of or pleaded nolo contendere to a disqualifying offense, as defined in this section;

(ii) Has not been previously convicted of or pleaded 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); and

(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 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.