In a mental health diversion request, the prosecutor wants two things answered before saying yes: is there a real diagnosis, and is there a treatment plan that will keep the community safe. I have answered those questions for clients for more than 25 years in Hillsborough County courtrooms, including as a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys and saw how many cases began with an untreated illness. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Our attorneys build the evaluation, the treatment plan, and the written request that diversion requires.

What Is the Tristin Murphy Act?

The Tristin Murphy Act is a 2025 Florida law that creates model pretrial diversion programs for people with mental illness charged with misdemeanors or lower-level felonies. Governor DeSantis signed SB 168 in Tampa on June 25, 2025, and it became chapter 2025-180, Laws of Florida, effective October 1, 2025. The law is named for Tristin Murphy, a 37-year-old father diagnosed with schizophrenia who was serving a prison term for littering more than 500 pounds after driving his truck into a retention pond. He died by suicide on September 16, 2021, while on a work assignment at a state prison, according to the Florida Senate staff analysis of SB 168.

Who Qualifies for Felony Mental Health Diversion in Florida?

A defendant charged with a second- or third-degree felony may qualify for diversion under section 916.136, Florida Statutes, if he or she meets four criteria:

1. Has a mental illness.
2. Has no more than three prior felony convictions in the past five years.
3. Is not charged with a violent felony.
4. Does not have a significant history of violence.

Meeting the criteria does not guarantee entry. The statute gives the state attorney “the sole discretion to determine a defendant’s eligibility,” and it also lets the state attorney waive the criteria “in extenuating circumstances” when doing so “is in the interest of justice.” First-degree felonies are not covered. To participate, the defendant signs a consent form agreeing to treatment, to release of the records needed to prove compliance, and to waive the right to a speedy trial.

Florida courts treat a prosecutor’s diversion decision as off-limits to judges. In Cleveland v. State, 417 So. 2d 653 (Fla. 1982), a woman charged with felony welfare fraud met every statutory requirement for pretrial intervention, but the state attorney refused to consent; the trial judge ordered her admitted anyway. The Florida Supreme Court held that “the pretrial diversion decision of the state attorney is prosecutorial in nature and, thus, is not subject to judicial review.” Under section 916.136, that means the persuasion has to happen with the prosecutor, which is why our attorneys present the evaluation and treatment plan before the State makes its decision.

How Does Misdemeanor Mental Health Diversion Work?

Under section 916.135, a person charged only with a misdemeanor or ordinance violation can be screened for mental illness within 24 hours of booking and then evaluated and assessed for treatment. The state attorney, the defense attorney, or the court may request screening “at any stage of the criminal proceedings.” If the person completes all treatment recommendations, “the state attorney must consider dismissal of the charges,” and if dismissal is not appropriate, may refer the case to mental health court. When a defendant falls short on treatment, the court may “exhaust therapeutic interventions” before considering a return to jail.

Both new sections describe a model process. Each community may adapt it to local resources, and the law encourages counties to apply for state reinvestment grants to fund programs. Whether a program operates in a given county, and how it runs, depends on the local state attorney, public defender, sheriff, court, and treatment providers.

Is Mental Health Court a Better Option Than the New Diversion Law?

Sometimes, because Florida’s older mental health court statute does not leave admission solely to the prosecutor. Under section 948.08(8), a defendant identified as having a mental illness and charged with a nonviolent felony is eligible for a pretrial mental health court program “upon motion of either party or the court’s own motion.” The State and the officer must consent only for resisting an officer with violence or battery on a law enforcement officer, and the State and the victim for aggravated assault. At the end of the program, “the court shall dismiss the charges upon a finding that the defendant has successfully completed” it.

The 13th Judicial Circuit lists an Adult Mental Health Treatment Court among its problem-solving courts in Hillsborough County. In our experience, the best route depends on the charge, the record, and the diagnosis, and our attorneys often present both options so the case lands in the program most likely to end in a dismissal. Our Tampa criminal mental health lawyer page explains how we handle these cases.

How Common Is Mental Illness Among People in Prison?

Common enough that diversion affects a large share of criminal cases. About 43 percent of state prisoners reported a history of a mental health problem in the 2016 Survey of Prison Inmates, according to a 2021 report by the U.S. Bureau of Justice Statistics, and about 14 percent reported serious psychological distress in the 30 days before the interview. In Florida, the Department of Corrections estimates that nearly 60 percent of incarcerated people have a substance use disorder and only about one-third of them receive services, as reported in the 2025 Senate staff analysis of SB 168.

Research supports treatment-based courts. A study published in the American Journal of Psychiatry, Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence (McNiel and Binder, 2007), compared 170 people who entered a San Francisco mental health court with 8,067 other adults with mental disorders booked into the county jail. Participation was associated with a longer time without any new criminal charges or new charges for violent crimes, and graduates kept those reductions after court supervision ended.

What Is the Forensic Hospital Diversion Pilot in Hillsborough County?

It is a community treatment alternative to a state forensic hospital, and the Tristin Murphy Act added Hillsborough County to it. Under section 916.185, the Department of Children and Families may run the pilot in Hillsborough County with the 13th Judicial Circuit, alongside Okaloosa, Duval, Broward, and Miami-Dade Counties, “if existing resources are available to do so on a recurring basis.” It is limited to adults charged with second- or third-degree felonies who have no significant history of violent offenses, who have been adjudicated incompetent to proceed or not guilty by reason of insanity, and who would otherwise be committed to a state facility.

The pilot is modeled on the Miami-Dade Forensic Alternative Center. The Eleventh Judicial Circuit reports that its participants are ready for discharge from forensic commitment an average of 52 days sooner, spend an average of 31 fewer days under commitment, and cost about 32 percent less than people served in state forensic facilities, according to the Senate staff analysis, which projected a Hillsborough pilot cost of about $1.5 million per year. For how competency is decided in the first place, see our post on competency to proceed.

How Do You Get Into Mental Health Diversion in Florida?

You get in by documenting the illness, building a treatment plan, and asking early. These are the steps our attorneys take:

1. Get a qualified evaluation. A psychiatrist or psychologist confirms the diagnosis and links it to the conduct charged. Jail screening under the new law is a start, but a full evaluation carries more weight.
2. Collect the treatment history. Prior hospitalizations, Baker Act records, prescriptions, and provider letters show the illness predates the arrest.
3. Line up a provider. A local treatment center ready to assess and treat the client answers the prosecutor’s safety question.
4. Choose the program. We compare section 916.136 diversion, mental health court under section 948.08(8), and ordinary pretrial intervention for the specific charge and record.
5. Make the written request. We present the evaluation and plan to the State Attorney’s Office, or file the motion for mental health court, before plea negotiations harden.
6. Track compliance. Completion records are what turn treatment into a dismissal.

When diversion is refused, the same work still matters. A documented mental illness can support a downward departure at sentencing, and our mitigation report and autism downward departure posts explain how. For how felony cases move through the courthouse, see our Hillsborough County criminal defense attorney page.

Frequently Asked Questions About Florida Mental Health Diversion

Does the Tristin Murphy Act apply to violent felonies?

No, felony diversion under section 916.136 excludes anyone charged with a violent felony or with a significant history of violence, though the state attorney may waive the criteria in extenuating circumstances. The Brancato Law Firm looks at whether mental health court under section 948.08(8), which allows some listed charges with consent, is a better fit.

Can a judge order me into mental health diversion if the prosecutor says no?

Not under section 916.136, because the state attorney has sole discretion and Cleveland v. State holds that diversion decisions are not subject to judicial review. Our attorneys at The Brancato Law Firm can ask the court for pretrial mental health court under section 948.08(8), which allows admission on motion of either party.

Will my charges be dismissed if I finish the program?

Under the Tristin Murphy Act, the state attorney must consider dismissal, but dismissal is not automatic. The Brancato Law Firm documents every completed treatment step so the request for dismissal is hard to refuse; see our criminal mental health defense page.

Do I give up my right to a speedy trial in mental health diversion?

Yes, the consent form under both new sections includes an agreement to waive the right to a speedy trial. Our attorneys at The Brancato Law Firm explain that trade-off before a client signs, because the case can return to the trial docket if the program is revoked.

Does autism or an intellectual disability qualify for felony diversion under the new law?

Section 916.136 uses the term “mental illness,” and the statute does not define autism or intellectual disability as covered. The Brancato Law Firm raises those conditions through other routes, including a downward departure and competency proceedings; see our autism downward departure guide.

Can a family member ask for mental health diversion for a loved one in jail?

A family member cannot file the request, but the state attorney, the defense attorney, or the court can request screening at any stage of a misdemeanor case under section 916.135. The Brancato Law Firm works with families to gather the treatment records that support a diversion request.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Talk to a Tampa Defense Attorney About Mental Health Diversion

Start before the first plea offer, because diversion is easiest to win before the State settles on a plan. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review the charge, the record, and the diagnosis to find the program that fits. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

For more about our defense strategies, visit our Tampa Criminal Mental Health Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, I have seen what years inside that office build in a trial lawyer. In that role I oversaw a staff of over 100 attorneys, including the felony and major crimes divisions, and I kept trying major felony cases myself. I have now practiced for more than 25 years in Hillsborough County courtrooms and tried more than 150 jury trials to verdict. Our attorneys use that background to prepare every serious case as though it will be tried, starting with the first read of the arrest report.

What does a public defender’s office do in Florida?

A Florida public defender’s office represents people charged with crimes who cannot afford a lawyer. Each judicial circuit elects its own public defender to a four-year term under Article V, Section 18 of the Florida Constitution, and that public defender appoints the assistant public defenders who handle the cases. Under section 27.51, Florida Statutes, the office must represent any person found indigent who is under arrest for, or charged with, a felony, along with many misdemeanor and juvenile cases.

The right behind this system comes from a Florida case. In Gideon v. Wainwright, 372 U.S. 335 (1963), Clarence Earl Gideon was charged in Florida with breaking and entering, asked the trial court for a lawyer, was refused, and had to defend himself. The U.S. Supreme Court held that a state must provide a lawyer to a felony defendant who cannot afford one. A 2013 Florida Bar Journal column describes Gideon as the decision that sparked the creation of Florida’s public defender system.

The workload in Hillsborough County is large. From October 2024 through January 2025, the Hillsborough County Clerk of Court opened 6,032 new felony cases, about 1,500 a month, according to the Clerk’s monthly outputs report for county fiscal year 2024-2025. The Office of the Public Defender for the Thirteenth Judicial Circuit reports a team of about 200 employees, including more than 120 attorneys. Lawyers in that office learn by handling those felony cases in front of judges and juries, and that training is what a former public defender brings to private practice at our firm.

What experience does a former public defender bring to your case?

A former public defender brings felony trial experience, familiarity with serious cases, and practical knowledge of how the local courthouse moves a case from first appearance to verdict. How much of each depends on how long the lawyer stayed and which units they worked in. For the most serious charges, such as murder and manslaughter, that experience is the foundation of the defense described on our Tampa homicide attorney page.

Research supports the value of institutional defense experience. In a 2012 study, “How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes,” 122 Yale L.J. 154, James M. Anderson and Paul Heaton examined Philadelphia murder cases in which one in five indigent defendants was randomly assigned to the public defender. Compared with court-appointed counsel in the same system, the public defenders reduced their clients’ murder conviction rate by 19 percent and reduced expected time served in prison by 24 percent. The authors tied the gap to institutional factors, including the office’s practice of staffing every case with two lawyers and one or more investigators.

Our firm carries that habit into private practice. We investigate before we advise, and we bring in experts when the evidence calls for one.

Is “former public defender” enough to judge a lawyer?

No single title tells you enough. “Former public defender” can describe a lawyer who spent two years in misdemeanor court or one who spent a decade trying homicide cases, so the details matter more than the label. Ask these six questions before you hire any defense lawyer, and expect direct answers.

Here is how I answer those questions. I have tried more than 150 jury trials to verdict. I worked as a Major Crimes Unit trial attorney on homicide, sex crime, child abuse, DUI manslaughter, and death penalty cases, and I meet the Fla. R. Crim. P. 3.112 qualifications to defend capital cases. I also served as a police academy instructor, teaching criminal procedure and courtroom testimony. Our guide on how to choose a criminal defense attorney in Tampa covers the rest of the hiring checklist, and my book, How to Choose a Major Crimes Attorney – or Any Criminal Defense Attorney for That Matter, is available as a free ebook.

How did leading the Hillsborough Public Defender’s Office shape our firm’s approach?

Leading the office taught me how cases actually move through the Thirteenth Judicial Circuit, the court system for Hillsborough County. As Chief Operations Officer, I oversaw the felony and major crimes divisions, mentored senior trial lawyers, and worked on policy and problem-solving court initiatives with judges, prosecutors, and court administrators. I also served on the Problem-Solving Courts Oversight Committee from 2012 to 2023 and chaired the 13th Judicial Circuit Juvenile Justice Board from 2022 to 2024.

That work matters to clients because the circuit’s website lists eight problem-solving treatment courts, including Adult Drug Treatment Court, Adult Mental Health Treatment Court, and Veterans Treatment Court. According to the court, completing the mental health or veterans program leads to dismissal of the charges. Adult Drug Treatment Court is designed for people whose drug or alcohol problems led to a third-degree felony charge. Our attorneys review every new case for these programs at the start, so a client who qualifies does not miss the option.

Small procedural facts also change a client’s experience. In our experience, the Hillsborough County Sheriff’s Office handles bond walkthroughs at the Orient Road Jail on weekdays only, from about 9:00 a.m. to 3:00 p.m., and only on warrants where a judge has already set a bond. A walkthrough booking usually takes about 30 minutes to 2 hours, compared with 8 to 12 hours or more for a regular booking. These are the details our Hillsborough County criminal defense work depends on.

How is a former public defender in private practice different from an appointed public defender?

The main differences are timing, eligibility, and choice. A court appoints the public defender, usually at first appearance or arraignment, and only for a person the clerk finds indigent under section 27.52, Florida Statutes. That statute treats an applicant as indigent when household income is equal to or below 200 percent of the federal poverty guidelines. The applicant owes a $50 application fee, but no one found indigent can be refused counsel for failing to pay it.

A private lawyer can start before charges are filed. That allows representation before charges are filed, where our attorneys contact the prosecutor while the case is still under review. You also choose your lawyer. Under section 27.51(2), the court cannot appoint the public defender to represent a person who is not indigent, or to serve on a case at the same time as private counsel the defendant has retained.

Assistant public defenders carry demanding caseloads and gain trial experience early in their careers. Our post on public defender vs. private attorney in Tampa compares the two paths in detail, so you can decide which one fits your situation.

How do our attorneys put this experience to work on your case?

Our attorneys follow the same sequence on every serious case, starting the day you hire us.

1. Confirm the charges, bond status, and every court date and deadline.
2. If no charges are filed yet, contact the assigned prosecutor through pre-file advocacy.
3. Collect the evidence, including police reports, body camera video, records, and the State’s discovery.
4. Retain experts when the science or medicine is contested, such as a forensic pathologist or digital analyst.
5. Depose the State’s key witnesses, including law enforcement officers and expert witnesses.
6. Screen the case for diversion and problem-solving court eligibility.
7. Prepare the case for trial, so any plea decision is made from a position of strength.

When should you hire a defense attorney after an arrest or investigation?

Hire a defense attorney as early as possible, ideally before the State Attorney’s Office files formal charges. Once charges are filed, the chance to influence the charging decision has passed. Evidence such as surveillance video can be overwritten, and witnesses become harder to find as weeks go by. Our step-by-step guide on what to do after being arrested in Tampa lists the first moves to make, and our attorneys can start on your case as soon as you hire us.

Frequently Asked Questions

Are former public defenders good trial lawyers?

Many are, because assistant public defenders often try felony cases to juries early in their careers. At The Brancato Law Firm, we measure trial skill by cases tried to verdict, and our founder has tried more than 150. Ask any lawyer you consider for that number.

What did Rocky Brancato do as Chief Operations Officer of the Hillsborough County Public Defender’s Office?

He oversaw the felony and major crimes divisions of an office with a staff of over 100 attorneys, mentored senior trial lawyers, and kept his own major felony trial caseload. The Brancato Law Firm applies that same case-review discipline to every file our attorneys open. His attorney profile lists his full background.

Does a former public defender have special influence with judges or prosecutors?

No, and no lawyer should promise influence with a judge or prosecutor. Our attorneys at The Brancato Law Firm rely on knowledge of local procedure instead, such as how scheduling, discovery, and plea timing work in the 13th Circuit. A lawyer who claims a personal relationship will fix your case is showing you a red flag.

Can I hire a private attorney if a public defender already represents me?

Yes, you can retain a private attorney at any point in the case. When you hire The Brancato Law Firm, our attorneys file a notice of appearance and coordinate with the public defender so the file and deadlines transfer without a gap. Florida law does not allow the court to appoint the public defender on the same case as retained private counsel. Our homicide defense team in Tampa handles these transitions on serious felony cases.

Who qualifies for a public defender in Hillsborough County?

A person qualifies when the clerk finds them indigent, which generally means household income at or below 200 percent of the federal poverty guidelines. The Brancato Law Firm can walk you through how that test applies if you are unsure which path fits your situation. Our public defender vs. private attorney comparison explains the eligibility rules in more detail.

How can I check a former public defender’s experience before hiring?

Ask the lawyer directly for trials to verdict, the units they worked in, and the roles they held, then confirm their standing with The Florida Bar. The Brancato Law Firm answers those questions in the first consultation. Our founder’s book on choosing a defense lawyer is free to download.

Can a former public defender help me before I am charged?

Yes, once that lawyer is in private practice. A public defender is appointed only after an arrest, while our attorneys at The Brancato Law Firm can contact the prosecutor during the investigation through pre-file advocacy. Early contact can give the prosecutor information to weigh before deciding what, if anything, to file.

Talk to Our Tampa Defense Attorneys Today

Our attorneys will start by reviewing your arrest report, bond status, and every deadline already running, then tell you plainly what the State must prove and where its case is weakest. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our team includes attorney Jean-Luc Adrien, who speaks Haitian Creole and French, along with Spanish-speaking staff. The best time to act is before the State Attorney’s Office files formal charges, so call (813) 727-7159 today. You can call us at any hour.

For more about our defense strategies, visit our Homicide Defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.