Prosecutor-led diversion and the legislature's new law: The legal issues

Megan B. Benton
Megan B. Benton is an assistant prosecuting attorney in Platte County. Licensed in Missouri and California, she previously was an associate in a Kansas City litigation firm after clerking for two years with the Superior Court of Los Angeles County for Judge Barbara Marie Scheper and Judge Ralph W. Dau.

Prosecutor-Led Diversion
The new law, codified in § 557.014, authorizes each prosecuting attorney (including the circuit attorney for the City of St. Louis) to divert a criminal case to a “prosecution diversion program” for a period of six months to two years.⁵ This can occur either before or after a “warrant of arrest, information, or indictment” is filed.⁶ If the participant completes the program, the participant is “entitled” to a “dismissal or alternative disposition” of the charges.⁷

Section 557.014 repeatedly emphasizes the prosecutor’s control of the diversion program. The new law defines “diversionary screening” as the “discretionary power” of the prosecutor to “suspend” all formal proceedings.⁸ It defines “prosecution diversion” as the “imposition” of conditions by the prosecutor upon a participant.⁹ The prosecutor is the “sole authority” to develop program requirements (beyond the minimum requirements).¹⁰ The “responsibility and authority” to divert cases is “within the sole judgment and discretion” of the prosecutor.¹¹ The prosecutor, “in his or her judgment,” may reinitiate criminal proceedings “at any point.”¹² “Completion” of the diversion program is “to the satisfaction of the prosecuting attorney.”¹³ Even after completion, it is “in the discretion of the prosecuting attorney” whether the participant has committed further crimes sufficient to reinstitute proceedings for the diverted offenses.¹⁴ The new law says, “The decision of the prosecuting attorney regarding diversion shall not be subject to appeal.”¹⁵
 

Entry to and Exit from Prosecutor-Led Diversion
Despite the breadth and repetition of these statements in § 557.014, a prosecutor’s decisions, even about the most basic decision to divert/prosecute, are subject to review for constitutional violations. A “decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights.”¹⁶ The Court of Appeals for the District of Columbia found a prima facie case of selective prosecution where the prosecutor had a policy of denying pretrial diversion to political protestors, burdening First Amendment rights.¹⁷ However, judicial review of selective prosecution is narrow. The Supreme Court of Missouri has stated, specifically about selective prosecution claims: “Because discretion is essential to the criminal justice process, courts require ‘exceptionally clear proof’ before finding that the prosecutor’s discretion has been abused.”¹⁸

Aside from constitutional violations, Missouri prosecutors have “wide” and “sole” discretion not to file charges, so long as they decide with “honest,” “good faith” discretion.¹⁹ Once prosecutors file charges, their discretion to continue cases is limited, but only by the court’s “inherent power to dismiss without prejudice for failure to prosecute.”²⁰ The Supreme Court of Missouri would probably agree with the Florida Supreme Court, which held that “the pretrial diversion decision of the state attorney is prosecutorial in nature and, thus, is not subject to judicial review.”²¹ The Florida court emphasized the “statutory scheme,” especially the state attorney’s discretion to reinstate prosecution if the defendant is not meeting the obligations under the program.²²

Involuntary exit (termination) from prosecutor-led diversion is a disputed issue in other jurisdictions, especially the degree of due process (if any) required. On one side are courts like the Court of Appeals for the District of Columbia, which hold that “when diversion is terminated pursuant to the patent terms of an agreement, the divertee is simply returned to participation in the criminal process to stand trial instead of performing community service and possibly providing restitution. In our view, it cannot be said that a divertee who is terminated in strict compliance with such an agreement suffers a loss of liberty that rises to a constitutional level requiring procedural due process.”²³

On the other side, some courts “have gone so far as to find that diversionary program participants who entered a diversionary program prior to pleading to an offense are entitled to the same due process as probationers or parolees.”²⁴

Because § 557.014 says that completion is “to the satisfaction of the prosecuting attorney,” the safest prediction is that Missouri would align with the “no due-process right” states, so long as the prosecutor meets the traditional standard of “honest,” “good faith” discretion.
 

Minimum Statutory Requirements for Prosecutor-Led Diversion
True, § 557.014 gives the prosecutor the “sole authority” for the program requirements.²⁵ But the very same sentence continues and immediately limits that authority by setting “minimum requirements.”²⁶ Statutory requirements must be followed. One month after the new law’s effective date, a prosecutor (successfully) challenged a circuit judge’s compliance with the authorizing statute for treatment courts. The Missouri Court of Appeals held: “[W]hen a circuit court ‘establishes and uses a [treatment] court, it is exercising a special statutory power. In doing so, it is confined strictly to the authority given by the [authorizing] statute[,]’ as well as the restrictions imposed by Missouri Court Rules, local rules, governing case law, and regulatory provisions.”²⁷ Just as the court of appeals allowed the prosecutor to enforce the treatment-court statute, those involved with prosecutor-led diversion may have standing to compel compliance with the minimum requirements in § 557.014.

The minimum requirements – not individually defined in § 557.014 – are:

(1) The suspected offense must be “nonviolent.” The corrections and sentencing statutes define “nonviolent offender”²⁸ as all offenses, except: murder in the first or second degree; involuntary manslaughter (and in the first or second degree); kidnapping (and in the first degree); rape in the first degree (and forcible rape); forcible rape; sodomy in the first degree (and forcible sodomy); robbery in the first degree; and assault in the first degree.²⁹

Because the Department of Corrections and judges use this definition to determine eligibility for long-term substance-abuse treatment programs,³⁰ it probably is the General Assembly’s intent for the similarly motivated prosecution-led diversion.

(2) The suspected offense must be “nonsexual.” Though this word is not defined in any statute, the General Assembly has defined “sexual” offense and “sex” offenses as those listed in the state and federal Sex Offender Registration and Notification Acts (or comparable offenses).³¹ Logically, “nonsexual” offenses for prosecutor-led diversion are any offenses not listed, or not like those, in the SORNAs.³²

(3) The suspected offense must not involve a “child victim.” Many statutes define “child” as “a person under seventeen.”³³ “Victim” is defined in the Crime Victims Act as “a natural person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime . . . .”³⁴

(4) The suspected offense must not involve “possession of an unlawful weapon.” In the key Missouri statutes on weapons offenses, the word “unlawful” appears immediately before “possession,” not before “weapon.”³⁵ Because § 557.014 puts “unlawful” before “weapon,” the General Assembly in § 557.014 did not mean “unlawful possession” under the key weapons statutes. Though the exact phrase “unlawful weapon” does not appear in any other Missouri statute, there are weapons that are unlawful to possess.³⁶ Although subject to debate, the policy of treatment and rehabilitation (and the general discretion in prosecutor-led diversion) favor this narrow interpretation of “possession of an unlawful weapon.”

(5) The suspected offense must not violate a “current condition of probation or parole,” which refers to conditions set by a court or the Board of Probation and Parole.³⁷

(6) The suspected offense must not be a traffic offense by a commercial driver license holder, or involving a commercial motor vehicle, which is a requirement of state and federal law.³⁸
 

Victims’ Rights During Prosecutor-Led Diversion
Section 557.014 does not mention victims’ rights during the diversion program. The Missouri Constitution³⁹ and the implementing statute⁴⁰ give victims the right to be present at all “criminal justice proceedings” where the “defendant” has the right to be present.⁴¹

The first issue is whether “criminal justice proceedings” include the “prosecution diversion proceedings” of § 557.014. The constitution and victims’ rights statute do not define “criminal justice proceedings.” Section 557.014 does not define “prosecution diversion proceedings.” The General Assembly has declared that victims’ rights are the “paramount” policy of the state,⁴² and the courts consistently interpret “criminal justice proceedings” as “all proceedings” where the defendant is entitled to be present.⁴³ Section 557.014’s prosecution diversion proceedings probably are “criminal justice proceedings.”

The second, tougher issue occurs when the participant is not charged, but only “accused.” Section 557.014 defines two terms: “accused” as “not yet charged,” and “defendant” as “charged.”⁴⁴ Under the constitution and victims’ rights statute, the victim’s right to be present requires a “defendant.”⁴⁵ Based on the language of the constitution and both statutes, the victim does not appear to have the right to be present at prosecution diversion proceedings until the defendant is charged.

The victims’ rights statute does give victims several other rights. One – to be informed of the status of the case and the availability of victim compensation⁴⁶ – applies even “where no charge decision has yet been made,”⁴⁷ so this “notice” requirement applies to all prosecution diversion proceedings. Another victim’s right is to be told of any “final decision” by the prosecutor not to file charges.⁴⁸ This right applies to diversion proceedings, but only at the very end of a diversion. Between the initial “notice” and a “final decision,” the victims’ rights statute does not appear to apply to prosecution diversion proceedings – when the participant is only “accused.”
 

Satisfactory Completion Means?
If the prosecutor decides that the participant has satisfactorily completed the program, the participant is “entitled to a dismissal or alternative disposition” of the charges.⁴⁹

Section 557.014 says that a “dismissal” may be with or without prejudice, in the prosecutor’s discretion.⁵⁰ And, formal proceedings may be reinstituted within the statute of limitations if the accused commits “subsequent criminal activity.”⁵¹ Section 557.014’s dismissal option thus aligns with the specific statute on dismissals by the prosecutor, and decisions of the Supreme Court of Missouri.⁵²

The term “alternative disposition” is not defined in § 557.014 or in any other statute. Literally, it could mean any disposition that is an alternative to “dismissal,” which means any other disposition. This literal interpretation seems wrong. First, it is contrary to the General Assembly’s purpose to treat and rehabilitate, not to punish and deter, by an “alternative method.”⁵³ Second, the treatment courts section of the same act that authorizes prosecutor-led diversion describes those courts in phrases that mean “alternative disposition.”⁵⁴ The term “alternative disposition” in § 577.014 probably means that a participant may then proceed to the treatment courts listed in Chapter 478.⁵⁵
 

Costs, Fees, and Restitution in Prosecutor-Led Diversion
Section 557.014 provides, “Any other provision of law notwithstanding, such individual shall be required to pay any associated costs prior to dismissal of pending charges.”⁵⁶ This plainly says “pending charges,” which means cases where charges have been filed against a “defendant,” with attendant court costs.

An “accused” diversion participant, with no charges filed (and maybe never filed), does not have to pay costs as referenced in § 577.014. However, a defender or prosecutor may propose that the agreement require the participant to pay fees as part of pretrial diversion. Section 557.014 does not mention fees. It does allow “other criteria established by the prosecuting attorney,”⁵⁷ which could include fees. Fees must be handled carefully. The Indiana Court of Appeals held that “precluding [the defendants] from participating in the Prosecutor’s pretrial diversion program based solely on their asserted inability to pay the $230 in fees violated their rights under the United States Constitution.”⁵⁸ The Indiana court suggested that “a prosecutor . . . exercise his or her discretion independently to waive payment of any or all fees. . . . This could take the form of complete waiver of the fee, partial waiver, implementation of a reasonable payment schedule, replacement of the fee with a non-financial (but reasonable) requirement such as community service, or some combination of partial waiver and a non-financial requirement.”⁵⁹

Section 557.014 does anticipate that the agreement may include payment of restitution.⁶⁰ The same issues arise with restitution as with fees. The New Mexico Supreme Court held that “the state may terminate a diversion agreement, even if the sole ground is the defendant’s non-willful failure to make restitution, but only if there are no adequate alternatives to termination which will meet the state’s legitimate penological interests.”⁶¹ That court then detailed “alternatives” – partial payment, delayed payment, and community service – like the Indiana court’s approach to fees.⁶² Missouri defenders and prosecutors would be wise to follow the out-of-state cases about restitution and fees.
 

Speedy Trial, Statute of Limitations, and Prosecutor-Led Diversion
Section 557.014 does not address the right to a speedy trial under the Speedy Trial Act,⁶³ or the federal and state constitutional provisions.⁶⁴ Other states’ laws and rules require that a diversion agreement include a waiver of the right to a speedy trial during the period of diversions⁶⁵ This is not relevant, of course, for a Missouri diversion participant who’s an “accused,” not yet charged, who has no speedy trial rights.⁶⁶ Even for a participant who’s a charged “defendant,” the delay during the period of diversion seems like a “neutral” reason that weighs “not heavily” against the government.⁶⁷

Section 557.014 allows “any statute of limitations” to be “tolled” for the period of diversion “alone.”⁶⁸ Because the tolling is for a specific period, a later prosecution could depend on the precise dates of the period of diversion, when it begins, when it ends, when it is extended, etc. Section 557.014 does say that a prosecutor’s decision “regarding diversion” cannot be raised as a defense in any prosecution.⁶⁹ Accordingly, a prosecutor could argue that determining the precise dates of diversion is a decision “regarding diversion” and thus cannot be raised in a statute-of-limitation defense. This argument has two flaws. First, the “tolling” provision, also in § 557.014, recognizes the statute-of-limitation defense, thus anticipating that it can be raised.⁷⁰ Second, deciding the beginning and ending dates of a statute of limitation is “an objective test decided as a matter of law by the judge.”⁷¹
 

Agreements to Prosecutor-Led Diversion: Required (With Options)
Section 557.014 requires a written agreement between the prosecutor and the participant, detailing a prosecution diversion plan.⁷² Section 557.014 appears to require that the plan include the “minimum requirements” outlined above. Based on this article’s analysis, the agreement should also include:

• The prosecutor’s agreement to forego and suspend continued prosecution during the specified period (plus extensions), as an alternative to proceeding on a complaint, information, or indictment.
• The participant’s acknowledgment to remain free of any criminal behavior during the entire period of diversion, and that newly discovered criminal behavior forfeits continued participation in the program (at the sole discretion of the prosecutor), as authorized by § 557.014.
• The “specified period” of the diversion, including the beginning and ending dates, up to a total period of two years.
• The reasons the period may be extended, as a “disciplinary measure” or to complete the diversion, including payment of restitution, for up to two more years.
• The acknowledgment that the statute of limitations is tolled during the diversion period.
• The acknowledgment that the prosecutor’s decision “regarding diversion” is not subject to appeal and may not be a defense in any prosecution.
• The “other criteria” or “conditions of behavior and conduct” that the prosecutor establishes for the safety and well-being of the community and the participant.
• The acknowledgment that the participant may insist on criminal prosecution at any time and may have counsel present during all phases of diversion (though none is required, with counsel at the participant’s expense), as permitted by § 557.014.7.
• The acknowledgment that the prosecutor may reinitiate criminal proceedings at any time, in his or her sole judgment.
• The acknowledgment of the immunity of the supervisors and administrators of any part of diversion (except for intentional torts or gross negligence), as detailed in § 577.014.9.
• The acknowledgment that completion of the program is determined by the prosecutor, but if satisfactory, entitles the participant to dismissal or alternative disposition of charges, with (1) a charged defendant’s payment of costs before any dismissal, and (2) any dismissal to be without prejudice to new criminal proceedings, within the statute of limitations, if the participant re-offends.

Based on this article’s discussion, the agreement should also include:

• Definitions and acknowledgment of the minimum requirements for diversion.
• Acknowledgment of the scope of victims’ rights.
• An express voluntary and intelligent waiver of speedy trial rights for the diversion period, or at least an agreement that any delay during the diversion period is a “neutral reason” for the delay.
• Fees for the program, with provision for inability to pay.
• Restitution to victims, with provision for inability to pay.

If the prosecutor and participant wish to consider “other criteria” or “conditions of behavior and conduct,” lists of conditions and sample diversion agreements are available on the internet.⁷³ In addition, some statutes in other states have long lists of potential “other criteria,” with wide differences among those states. For example, the Alabama statute lists 27 types of conditions.⁷⁴ Among them is a controversial point: An Alabama prosecutor may require that the participant “provide a statement admitting his or her participation in, and responsibility for, the offense which is the subject of the application for entry into the pretrial diversion program.”⁷⁵ A California statute, on the other hand, says that pretrial diversion requires a “not guilty” plea to the charges and that the participation in pretrial diversion is not “an admission of guilt for any purpose.”⁷⁶

As for interpretation of the diversion agreement, other states’ courts analogize them to plea agreements.⁷⁷ If Missouri agrees, then a diversion agreement is a binding contract,⁷⁸ interpreted by “objective,” “contract-law” standards.”⁷⁹
 

Conclusion
This article has attempted to analyze the legal issues accompanying the growing use of prosecutor-led diversion. These issues range from simple to complex, from settled to unresolved. The Missouri General Assembly and many Missourians believe prosecutor-led diversion reflects the future of the criminal justice system, focusing more on treating and rehabilitating, outside traditional criminal justice proceedings. The accompanying issues thus are critical issues for prosecutors, defense counsel, judges, and, over time, all Missourians.
 

Endnotes
1 Megan B. Benton is an assistant prosecuting attorney in Platte County. Licensed in Missouri and California, she previously was an associate in a Kansas City litigation firm after clerking for two years with the Superior Court of Los Angeles County for Judge Barbara Marie Scheper and Judge Ralph W. Dau. 

2  Prosecutor-Led Diversion, https://www.stlouiscountyprosecutingattorney.com/prosecutor-led-diversion (last visited Aug. 14, 2020); Rebecca Rivas, Felony diversion in St. Louis – and its discontents, St. Louis American (describing circuit attorney’s “Felony Redirect” program), http://www.stlamerican.com/news/local_news/felony-diversion-in-st-louis-and-its-discontents/article_a22448e4-3275-11ea-97b0-a3d06b95880f.html (Jan. 10, 2020); Jackson County Prosecutor 2019 Annual Report, pp. 16-19 (describing “New Start” program), https://www.jacksoncountyprosecutor.com/DocumentCenter/View/1438/2019-Annual-Report.

3 Joel Currier, Federal grants to fund diversion programs at St. Louis city and county prosecutors’ offices, St. Louis Post-Dispatch (Oct. 18, 2019), https://www.stltoday.com/news/local/crime-and-courts/federal-grants-to-fund-diversion-programs-at-st-louis-city-and-county-prosecutors-offices/article_8f242fb9-d476-5598-b699-a48a70bccb90.html.

4 Section 557.014, RSMo Supp. 2019, enacted by H.B. 547, 2019 Gen. Assemb., 100th Sess. (Mo. 2019).

5 Section 557.014.2, RSMo Supp. 2019.

6 Sections 557.014.1(1), 557.014.4, RSMo Supp. 2019.

7 Section 557.014.11, RSMo Supp. 2019.

8 Section 557.014.1(5), RSMo Supp. 2019.

9 Section 557.014.1(6), RSMo Supp. 2019.

10 Section 557.014.4, RSMo Supp. 2019.

11 Section 557.014.6, RSMo Supp. 2019.

12 Section 557.014.8, RSMo Supp. 2019.

13 Section 557.014.11, RSMo Supp. 2019.

14. Id.

15 Section 557.014.6, RSMo Supp. 2019.

16 Wayte v. United States, 470 U.S. 598, 608 (1985) (citations omitted).

17 Fedorov v. United States, 600 A.2d 370, 381-82 (D.C. Ct. App. 1991) (en banc).

18 State v. Anderson, 79 S.W.3d 420, 444 (Mo. banc 2002) (quoting McClesky v. Kemp, 481 U.S. 279, 297 (1987)).

19 State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 986-88 (Mo. banc 1939) (describing prosecutor’s discretion as “wide,” if exercised in an “honest,” “good faith” manner); State ex rel. Norwood v. Drumm, 691 S.W.2d 238, 240 (Mo. banc 1985) (stating that prosecutor has “sole discretion” whether to initiate prosecution).

20 State v. Honeycutt, 96 S.W.3d 85, 89 (Mo. banc 2003) (holding of the case) (emphasis in original).

21 Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982).

22 Id.

23 Wood v. United States, 622 A.2d 67, 72 (D.C. Ct. App. 1993). See also Lee v. State, 560 S.W.3d 768, 773 (Tex. App. 2018) (holding that “a court does not have authority to require the State to keep a defendant on pretrial intervention after the State determines that a defendant has violated the agreement. Thus, a defendant placed on pretrial intervention does not have a liberty interest requiring a hearing for due process purposes.”); Deurloo v. State, 690 N.E.2d 1210, 1213 (Ind. Ct. App. 1998) (same).

24 State v. Rogers, 170 P.3d 881, 884-85 & n.4 (Idaho 2007) (citing Washington and New Jersey cases) (emphasis in original).

25 Section 557.014.4, RSMo Supp. 2019.

26 Id.

27 State ex rel. Patterson v. Holden, 592 S.W.3d 1, 7 (Mo. App. S.D. 2019) (citations omitted, bold and brackets in original) (opinion earlier cites the “treatment courts” sections of the same act that authorizes prosecutor-led diversion, 592 S.W.3d at 4, 6). The supreme courts of Kansas and Nebraska ruled that prosecutors must follow their diversion statutes, even after considering their traditional discretion in charging. Polikov v. Neth, 699 N.W. 2d 802, 809 (Neb. 2005); State v. Greenlee, 620 P.2d 1132, 1138 (Kan. 1980). Both supreme courts, however, held that the prosecutors’ failure to follow their statutes does not empower courts to order admission to diversion. Polikov, 699 N.W. 2d at 810; Greenlee, 620 P.2d at 1138.

28 Section 217.010(11), RSMo Supp. 2019.

29 Id.

30 Sections 217.362.1, 217.364, RSMo Supp. 2019.

31 Sections 556.037.2, 589.404(7), RSMo Supp. 2019.

32 Section 589.414.5-.7, RSMo Supp. 2019.

33 E.g., Sections 455.010(3), 491.678, RSMo (2016); 211.021.1(2), 565.002(2), RSMo Supp. 2019.

34 Section 595.200(6), RSMo 2016.

35 Sections 571.070, 571.072, RSMo 2016.

36 Sections 571.020 (listing federal- and state-prohibited weapons), 571.050 (defaced firearm), RSMo 2016.

37 Sections 217.650 (4), (7), 559.100.2, RSMo 2016; Sections 217.690.4, 217.690.10-11, RSMo Supp. 2019.

38 Section 302.345, RSMo 2016; 49 C.F.R. § 384.226.

39 Mo. Const. art. I, § 32.1(1).

40 Section 595.209.1(1), RSMo 2016.

41 State v. Moore, 366 S.W.3d 647, 651 (Mo. App. E.D. 2012).

42 Section 595.209.5, RSMo 2016.

43 State v. Moore, 366 S.W.3d at 651 (Mo. App. E.D. 2012).

44 Section 557.014.1(2), (3), RSMo Supp. 2019

45 Mo. Const. art. I, § 32.1(1); Section 595.209.1(1), RSMo 2016.

46 Section 595.209.1(10), RSMo 2016.

47 Id.

48 Id.

49 Section 557.014.11, RSMo Supp. 2019.

50 Id.

51 Id.

52 Sections 56.087, RSMo 2016; State v. Sisco, 458 S.W.3d 304, 310 (Mo. banc 2015); State v. Honeycutt, 96 S.W.3d at 89 (Mo. banc 2003).

53 Title of  H.B. 547, supra note 4 (“To enact. . . four new sections relating to alternative methods for the disposal of cases in the justice system”).

54 H.B. 547, supra note 4, see §§ 478.001.2 (treatment court division – “an alternative for the judicial system to dispose of cases which stem from, or are otherwise impacted by, substance use”); 478.001.3 (adult treatment court –“an alternative for the judicial system to dispose of cases”); 478.001.4 (DWI court – “an alternative for the judicial system to dispose of cases”); 478.001.7 (veterans court – twice: first, “an alternative method for the disposal of cases”; second, “an alternative for the judicial system to dispose of cases”). See also § 478.007.1 RSMo Supp. 2019 (DWI court – “an alternative for the judicial system to dispose of cases”).

55 Over the last 20 years, the General Assembly has authorized – in the judicial branch – DWI courts, drug courts, family treatment courts, adult treatment courts, juvenile treatment courts, and veteran’s treatment courts. Sections 478.001-478.009, RSMo Supp. 2019. Now, “more than 100 counties” are “served by more than 120 treatment courts – adult, juvenile, family and DWI courts.” Hon. George W. Draper III, Chief Justice Delivers State of Judiciary Address, 76 J. Mo. B. 72, 74 (2020) (delivered January 22, 2020). Each circuit court in Missouri must have a “treatment court division” by August 28, 2021, which may include the previously authorized courts. Section 478.001.2, RSMo Supp. 2019.

56 Section 557.014.11, RSMo Supp. 2019.

57 Section 557.014.4(6), RSMo Supp. 2019.

58 Mueller v. State, 837 N.E.2d 198, 204-05 (Ind. Ct. App. 2005). In addition to United States Supreme Court cases stating the constitutional rules, the Mueller court follows Moody v. State, 716 So.2d 562, 565 (Miss. 1998) (same holding as Mueller).

59 Mueller, 837 N.E.2d at 205 (Ind. Ct. App. 2005).

60 Section 557.014.2, RSMo Supp. 2019 (“The period of diversion may be extended by the prosecuting attorney as a disciplinary measure or to allow sufficient time for completion of any portion of the prosecution diversion including restitution.” (emphasis added).

61 State v. Jimenez, 810 P.2d 801, 803 (N.M. 1991).

62 Id. at 807.

63 Section 547.780, RSMo 2016.

64 U.S. Const. amend 6; Mo. Const. art. I, § 18(a).

65 E.g., Ala. Code § 12-17-226.5(a)(1); Colo. Rev. Stat. § 18-1.3-101(9)(b); Minn. R. Crim. P. 27.05, subd.1(2); N.D. R. Crim. P. 32.2(a)(1); Wash. Rev. Code § 10.05.020(3)(b).

66 State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010) (“[T]he protections of the speedy trial provisions attach when there is a ‘formal indictment or information’ or when ‘actual restraints [are] imposed by arrest and holding to answer a criminal charge.’”).

67 See generally State v. Sisco, 458 S.W.3d at 314 (Mo. banc 2015) (describing different weights for different reasons for delay).

68 Section 557.014.2, RSMo Supp. 2019.

69 Section 557.014.6, RSMo Supp. 2019.

70 Section 557.014.2, RSMo Supp. 2019.

71 Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 684 S.W.2d 858, 861 (Mo. App. W.D. 1984).

72 Section 557.014.4, RSMo Supp. 2019.

73 Among the many websites, the most comprehensive is Association of Prosecuting Attorneys, Prosecutor-Led Diversion Toolkit, https://www.diversiontoolkit.org/ (last visited Aug. 14, 2020). See also Dr. Carrie Pettus-Davis, Dr. Matthew Epperson; Annie Grier; Megan Kraatz [St. Louis City Circuit Attorney’s office]; Leon Sawh; and Dr. Stephanie Kennedy, Deferred Prosecution Programs: An Implementation Guide, Inst. for Just. Res. & Dev.(2018), https://www.researchgate.net/profile/Stephanie_Kennedy2/publication/333244841_Deferred_Prosecution_Programs_An_Implementation_Guide/links/5ce3f78ca6fdccc9ddc2c362/Deferred-Prosecution-Programs-An-Implementation-Guide.pdf (last visited Aug. 14, 2020).

74 Ala. Code § 12-17-226.10(b).

75 Id. § 12-17-226.10(b)(18).

76 Cal. Penal Code § 1000.1(a)(3), (d). Cf.  § 478.005.2, RSMo Supp. 2019 (any “condition” or “criteria” of any judicial-branch, treatment-court program is subject to the statute that: “Any statement made by a participant . . . or any report made by the staff . . . shall not be admissible as evidence against the participant in any criminal, juvenile or civil proceeding.” However, “termination . . . and the reasons for termination may be considered in sentencing or disposition.”).

77 State v. Dempsey, 916 So. 2d 856, 859 (Fla. Dist. Ct. App. 2005).

78 See Evans v. State, 28 S.W.3d 434, 439 (Mo. App. S.D. 2000) (“A plea agreement is a binding contract  ….”).

79 State v. Jones, 789 S.W.2d 856, 858 (Mo. App. S.D. 1990) (recognizing standards).