Rhode Island Superior Court Diversion Program: An Alternative Route to Felony Prosecution

When a person is charged with a felony in Rhode Island and is facing prosecution in Rhode Island Superior Court, there are many potential consequences such as payment of fines and serving terms of probation or imprisonment, or both combination of each, if convicted.  However, for those who are eligible, a new alternative option has been created.  This option is called the Rhode Island Superior Court Diversion Program.

What is the Rhode Island Superior Court Diversion Program?

The Rhode Island Superior Court Diversion Program (hereinafter “Diversion Program”) provides an opportunity for eligible defendants to defer prosecution of the charged offenses.  If referred to the program, each participate must fulfill certain conditions and requirements.  Upon successfully completing the Diversion Program, a defendant’s case is dismissed and becomes eligible to be sealed from his or her record.

The Diversion Program is administered by a justice or magistrate of the Rhode Island Superior Court and is assisted by a case manager.  Approval for a defendant’s acceptance into the diversion program rests with the judge or magistrate presiding over it.  Referral to the program may be made at any time after arraignment but before to entry of a guilty or nolo plea or the start of a trial.   Referrals may be made by the District Court or Superior Court, a representative of the Department of the Attorney General or counsel for the defendant.

Once a referral is made, the Diversion Program manager will determine the defendant’s eligibility.  The manager will then submit the report to the Superior Court that indicates acceptance or rejection.  The Superior Court will then confer with counsel for both the Defense and the State.  If both parties agree on eligibility the defendant shall be deemed eligible. If either party disagrees regarding a defendant’s eligibility, a request for a hearing may be made by either party for the Court to decide the issue of eligibility.  

If ultimately approved for acceptance into the Diversion Program, the defendant will sign a contract containing the details and requirements for his or her participation.  These shall include the duration for participation, conditions imposed upon and responsibilities of the defendant, and treatment plan goals and strategies, if applicable.  If all conditions are met within the prescribed time period, the defendant will successfully complete the Diversion Program, be rewarded with the dismissal of all charges, and thereafter, be eligible to have his case sealed.

Eligibility Requirements

The Rhode Island Superior Court Diversion Program is available to any defendant who is charged via District Court complaint, Superior Court indictment, or a Superior Court criminal information with a qualifying felony offense.  

Factors that may disqualify a defendant from eligibility include a prior conviction or nolo contendere plea to a disqualifying felony offense; a prior conviction or nolo contendere plea to two (2) or more felony offenses within the last five (5) years (excluding any the defendant was incarcerated for any reason between the time of commission of the prior felony and the time of commission of the present felony); or if the present offense is a disqualifying felony offense.

Disqualifying Offenses

While many felony offenses are eligible for the Rhode Island Superior Court Diversion Program, there are many that are not.   Disqualifying felony offenses include:

• homicide offenses;
• arson;
• kidnapping;
• robbery;
• felony assault;
• larceny from a person;
• burglary;
• sexual assault;
• any domestic violence offense;
• driving while intoxicated resulting in death or serious bodily harm;
• possession of greater than one ounce or greater than one kilogram of a controlled substance;
• possession of greater than five kilograms of marijuana;
• any offense requiring sex offender registration;
• child abuse;
• and almost all firearms offenses.  

Any attempt or conspiracy to commit any of these offenses also constitutes disqualifying offenses.

Termination from the Diversion Program

If a defendant fails to complete with any of the Diversion Program’s conditions and orders, he or she may be involuntary terminated from the Program by the Court upon notice and after a hearing.  The defendant has a right to have counsel present at the termination hearing and to contest involuntary termination.  

If a defendant is terminated from the Diversion Program, regardless of reason, his or her case shall be placed back on the Superior Court daily criminal calendar for traditional prosecution.  A defendant may also voluntarily terminate his or her participation in the Diversion Program at any time and for any reason by simply notifying the case manager and attending a hearing.  Once terminated, the case returns to the normal criminal calendar to resume traditional prosecution. 

Completion of the Diversion Program

After a defendant is accepted into the Rhode Island Superior Court Diversion Program, the Court will set a period of time for the defendant to complete the Program. Generally, this period does not exceed one (1) year, but in certain instances, the Court may authorize a longer period.  If a defendant successfully completes the Program, the case and its charge(s) will be dismissed.  

Once dismissed, the defendant may file a motion to seal the case.  If granted, all judicial records related to the matter will be removed from public record and all law enforcement records will be destroyed.  However, the motion to seal will not destroy any records relating the defendant’s participation in the Diversion Program.  These records are confidential and maintained separate and apart from the defendant’s superior court criminal case file.

If you have been charged with a felony offense in Rhode Island and/or wish to explore eligibility to participate in the Adult Diversion Program, contact the Law Office of John L. Calcagni III, Inc. today at (401) 351-5100 for a free consultation.