“Innocent Until Proven Guilty”? Not in Pretrial Diversion.

By: John Guidry

There’s a couple of things you should know about human nature before we delve into the case law today. First, there’s Murphy’s Law: “Sh** Happens.” Second, once the government gets involved in your life, you are operating under Murphy’s Law, not the fuzzy, positive laws of the universe.

The Good News: Florida offers Pretrial Diversion (PTD) or Pretrial Intervention (PTI) for first-time offenders.

• The Deal: You jump through a few hoops (community service, classes), and the State dismisses your case. It is a beautiful thing.
• The Catch: What happens if you get arrested again while in the program?

The Question: Does “Innocent Until Proven Guilty” apply to your new arrest? Can they kick you out of the program just because a cop accused you of something new?

Did you get kicked out of Diversion because of a bogus new arrest?

The State holds all the cards. Call John today at (407) 423-1117.

The Case: Harris v. Ryan (The Contract Trap)

This exact issue was fought in Harris v. Ryan (Fla. 3rd DCA 2014).

• The Scenario: Three defendants were in Pretrial Intervention. All three were arrested for new crimes while in the program.
• The Result: The State Attorney immediately kicked them out of PTI and put their original cases back on the trial docket.
• The Lawsuit: The defendants sued, arguing that because they hadn’t been convicted of the new crimes yet, it was unfair to kick them out. They claimed “Innocent Until Proven Guilty.”

The Ruling: The Court sided with the State.

• The Logic: PTI is the State’s program. They own it. They get to say who gets in and who gets out.
• The Contract: The Court pointed to the contract every defendant signs. It usually says participation will be terminated if the defendant is “re-arrested for any criminal offense.”
  • It does not say “convicted.”
  • It says “arrested.”

The Result: Because the defendants signed the contract, they waived their right to the presumption of innocence regarding the program status. A mere arrest—even a bogus one—is a breach of contract.

The Strategy: Beat the Clock

So, how do we get around this? My advice to clients is simple: Speed matters. If you are arrested while in PTI, you are in a race against the docket.

1. Finish the Conditions: Immediately complete every single requirement of the (now revoked) PTI program (classes, hours, fees).
2. The Hail Mary: We go to the prosecutor and say, “Look, he messed up and got arrested, but he has finished everything for the original case. Can we nolle pros (drop) the charges anyway?”
   • This works about half the time, but it is your best shot.

John’s 2026 Update: The “Zero Tolerance” Algorithm

Note: In 2014, a prosecutor decided to kick you out. In 2026, a computer does it.

1. Automated Revocation In 2026, most State Attorney’s Offices use integrated case management software.

• The 2026 Reality: When your name pops up in the daily arrest feed, the software automatically flags your active PTI case and generates a “Termination Letter.”
• The Danger: There is no human reviewing the “fairness” of the new arrest. The revocation happens at the speed of data. You might be kicked out of PTI before you even bond out on the new charge.

2. The “Pre-Arrest” Diversion Loophole Some counties now offer “Adult Civil Citations” or pre-arrest diversion.

• The Nuance: If you mess up one of these pre-arrest programs, there is no “revocation” because charges were never filed. instead, the State just files the original charge for the first time.
• The Defense: We argue that because the “Speedy Trial” clock started ticking the day you were detained, the State might have waited too long to file the charge after you failed the program.

3. Specialized Courts are Safer While standard PTI is strict, Mental Health Court and Veterans Court have become more robust.

• The Difference: These are statutory programs (run by the Judge), not just discretionary programs (run by the Prosecutor).
• The Benefit: If you get re-arrested while in Veterans Court, the Judge has the power to keep you in the program and just add more sanctions (like rehab), rather than automatically kicking you out like the Prosecutor would in PTI.

Read the Fine Print

Diversion is a contract, not a right. When you sign that paper, you are agreeing that a police officer’s opinion (an arrest) is enough to breach the deal. Walk the line, or you will find yourself back at square one.

Call me at (407) 423-1117. Let’s try to salvage the deal.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.