23-23.006: Conditional Release Definitions
23-23.007: Victim Information
23-23.008: Conditional Release Evaluation Procedure
23-23.010: Conditional Release Supervision
23-23.011: Revocation of Conditional Release
PURPOSE AND EFFECT: The Commission proposes to update rules to conform to current practices and procedures, deleting obsolete rules, practices and procedures, and standardizing to conform to other types of Commission supervision.
SUMMARY: The proposed changes conforms the standard conditions of conditional release supervision to other forms of supervision. The hearing and revocation procedures are also updated to clarify current practice and conform to other forms of supervision.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 947.06, 947.07, 947.1405, 947.20 FS.
LAW IMPLEMENTED: 947.1405; 947.141 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: January 7, 2010, 9:00 a.m.
PLACE: Florida Parole Commission, 2601 Blair Stone Road, Bldg C., Hearing Room A, Tallahassee, FL 32399
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Sarah J. Rumph, General Counsel, 2601 Blair Stone Road, Bldg. C, Tallahassee, Florida 32399 If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sarah J. Rumph, General Counsel, 2601 Blair Stone Road, Bldg. C, Tallahassee, Florida 32399
THE FULL TEXT OF THE PROPOSED RULE IS:
23-23.006 Conditional Release Definitions.
(1) Chair – is the Chair of the Florida Parole Commission.
(2) Conditional Release – means the release of:
(a) Any inmate who is convicted of a crime committed on or after October 1, 1988, but prior to October 1, 1989; and
1. Which crime is contained in category 1, 2, 3, or 4 of Rule 3.701 and Rule 3.988, Florida Rules of Criminal Procedure, and who has served at least one prior felony commitment at a state or federal correctional institution; or
2. Is sentenced as a habitual or violent habitual offender pursuant to Section 775.084, Florida Statutes F.S; and upon reaching the tentative release date as established by the Department of Corrections, will be released under supervision subject to specified terms and conditions established by the Commission for such release.
(b) Or an inmate who is convicted of a crime committed on or after October 1, 1989; and
1. Which crime is contained in category 1, 2, 3, or 4 of Rule 3.701 and Rule 3.988, Florida Rules of Criminal Procedure, and who has served at least one prior felony commitment at a state or federal correctional institution; or
2. Is sentenced as a habitual or violent habitual offender pursuant to Section 775.084, Florida Statutes, and upon reaching the tentative release date or provisional release date, whichever is earlier, established by the Department of Corrections, will be released under supervision subject to specified terms and conditions established by the Commission for such release. In the event any inmate placed on conditional release supervision is also subject to probation or community control, the inmate will be determined to be ineligible for conditional release supervision and the Department of Corrections shall supervise such person according to the conditions imposed by the court.
(3) through (9) No change.
(10) Parole Examiner – for purposes of these rules, means an employee of the Florida Parole Commission who performs the following conditional release functions:
(a) Conducts interviews of eligible inmates committed to the Department of Corrections and submits the case material with a professional case analysis and recommendation to the Commission;
(a)(b) Conducts violation hearings and makes findings of fact and recommendations to the Commission;
(c) Conducts investigations regarding restitution or reparation and other relevant consequences of the offense.
(b)(d) Performs other related duties as assigned by the Chair.
(11)(a) Felony Commitment – means an the incarceration served in this state, any other state, or federal institution portion of a prison sentence for a felony offense. resulting from a Uniform Commitment to Custody of the Department of Corrections or the incarceration portion of a prison sentence for a felony offense served in any other state or federal correctional institution.
(b) Prior Felony Commitment – means any felony commitment served prior to a subsequent felony commitment even though both may have resulted from the same criminal offense.
(12) through (19) No change.
Rulemaking Specific Authority 947.07, 947.1405(9) FS. Law Implemented 947.1405(2)(a) FS. History–New 10-20-91, Amended 1-5-94, 5-29-02,________.
23-23.007 Victim Information.
(1) The Directors of Parole Grant and Field Services/Revocations shall cause an investigation to determine the following:
(a) The amount of reparation or restitution.
(b) The consequences of the offense as reported by the aggrieved party.
(c) The aggrieved party’s fear of the inmate or concerns about the release of the inmate.
(2) The Commission shall provide to the aggrieved party information regarding the manner in which notice of any developments concerning the status of the inmate during the term of conditional release may be requested.
(1)(3) The Commission shall provide the opportunity to victims to have input into the Commission decisions:
(a) through (b) No change.
Rulemaking Specific Authority 947.06, 947.07, 947.20 FS. Law Implemented 947.1405, 947.141 FS. History–New 10-20-91, Amended 1-5-94,________.
23-23.008 Conditional Release Evaluation Procedure.
(1) Within 180 days prior to an inmate’s Tentative Release Date or Provisional Release Date PRD whichever is earlier, as established by the Department of Corrections, the Department Director of Field Services/Revocations shall cause a Hearing Examiner to review the inmate’s program participation, disciplinary record, psychological and medical records, and any other information pertinent to the pending release. The Department shall and to interview the inmate for conditional release. The Hearing Examiner shall interview the inmate and shall request the inmate to present his/her conditional release plan. The Department shall gather and compile information necessary for the Commission to make the determinations set forth in Sections 947.1405(3) and (5), Florida Statutes. At the close of the conditional release interview, the inmate shall be requested to sign an acknowledgment of presence at the conditional release interview.
(2) The Hearing Examiner shall reduce his findings regarding the inmate’s conditional release interview to writing and forward those findings to the Commission.
(2)(3) Within 60 days from the receipt of the interview, of the examiner’s findings, a panel of no fewer than two Commissioners shall review the recommendations of the Department, and such other information as it deems relevant, and conducts a review of the inmate's record for the purpose of establishing the terms and conditions of the conditional release. The Commission imposes any special conditions it considers warranted shall review the material and the conditional release date as scheduled by the Department, and shall establish the terms and conditions of such release.
Rulemaking Specific Authority 947.07, 947.20 FS. Law Implemented 947.1405 FS. History–New 10-20-91, Amended 8-18-98,________.
23-23.010 Conditional Release Supervision.
(1) Prior to an inmate being released by conditional release, the Commission shall determine the terms and conditions of supervision which shall include the cost of supervision.
(2) Florida felony probation/community control will substitute for conditional release supervision for all conditional release eligible offenses occurring before July 1, 2001. This applies to cases involving split sentences, as well as to cases involving probation/community control relating to an offense that is not part of the current sentence structure, regardless of the offense date of the unrelated sentence. For conditional release eligible offenses occurring on or after July 1, 2001, conditional release supervision will defer to and run concurrent with the Florida felony probation/community control supervision upon the offender’s release. Section 947.1405(2), F.S., provides that the Department of Corrections shall supervise the offender according to the conditions imposed by the court and the Commission shall defer to such supervision. Upon expiration of the court imposed supervision, the offender will be subject to the conditions of conditional release supervision until the maximum period of conditional release supervision expires. If an inmate has received a term of probation or community control supervision to be served after release from incarceration, he is not eligible for conditional release supervision.
(3) through (4) No change.
(5) All persons placed solely on conditional release supervision shall initially be subject to the standard conditions of conditional release upon their release from incarceration.
(a) The standard conditions of conditional release shall be the following:
1. Promptly upon being released on Conditional Release, you will proceed to your planned place of residence identified on page one. You shall report in person to the probation and parole office in __________ County, Florida, as instructed by the release officer, on ___________at ___________. (address), where you will reside. If no specific report date/time is given, you shall report within 72 hours of your release. Immediately upon your arrival, you will report by personal visit to the Conditional Release Supervisor under whose supervision you are to be released. The Conditional Release Supervisor’s name and address is:
2. No change.
3. You shall submit a full and truthful report to your Conditional Release Supervisor before the fifth of each month in writing on the forms provided or in person, as directed by your Conditional Release Supervisor.
4. You shall not:
a. Use or possess alcohol or intoxicants of any kind to excess,
b. Use or possess narcotics, drugs, or marijuana unless prescribed by a physician.
c. Enter any business establishment whose primary purpose is the sale/consumption of alcoholic beverages.
5. You shall not knowingly associate with any person(s) who is engaging in any criminal activity, a criminal gang member, or person(s) associated with criminal gang members.
6. through 7. No change.
8. You shall:
a. No change
b. Waive extradition back to the State of Florida if you are wanted for return as an alleged conditional release violator,
c. through d. No change.
9. through 11. No change.
12. I agree to pay any court ordered payments such as child support, restitution, or civil liens resulting from restitution orders cost of supervision and rehabilitation as calculated and assessed by the Department of Corrections as provided and required in Section 948.09, Florida Statutes.
13. You shall execute and provide authorizations to release records to your Conditional Release Supervisor and the Commission so that your progress and participation in required programs can be monitored and documented.
(b) Standard conditions of conditional release for a person found to be a sexual predator shall also include:
1. Promptly, upon being released on conditional release, you shall, within 48 hours after entering the county of permanent or temporary residence, register as a sexual predator with the Department of Law Enforcement and, once registered, must notify the Department of any change in permanent or temporary residence within 48 hours after arrival at the new place of permanent or temporary residence.
2. Your failure to register or be registered or your failure, after registration, to provide required notification of location, shall be in violation of the conditions of your supervised release.
(b)(c) In addition to these standard conditions, the Commission shall require such special conditions of conditional release supervision as it deems necessary, which may include restitution.
(6) through (8) No change.
(9) The panel may shall give specific instructions reflecting whether the personal contact is to take place in a formal setting or in the setting to be determined by the conditional release supervisor parole officer. The Commission shall also give specific instructions establishing the method of payment of cost of supervision.
(10) No change.
Rulemaking Specific Authority 947.07, 947.20 FS. Law Implemented 947.1405, 947.141 FS. History–New 10-20-91, Amended 1-5-94,________.
23-23.011 Revocation of Conditional Release.
(1) Warrants.
(a) A warrant for the arrest of a conditional releasee shall be executed only by a Commissioner, except in the case of an emergency warrant as provided in subsection (2) herein. The decision to issue a warrant shall be based on evidence which indicates reasonable grounds to believe a releasee has violated a condition of conditional release. The issuance of a warrant is discretionary. In the case of a sexual predator, the warrant is not discretionary and must be issued, pursuant to Section 947.141(1), Florida Statutes, provided reasonable grounds exist that a violation has occurred.
(b) All warrant requests will be reviewed by staff for sufficiency of information and if found sufficient, staff shall submit either:1. Submit the warrant request to a Commissioner for a decision regarding issuance of a warrant.
2. If approved by the revocations administrator or his designee, docket the warrant request for a decision by a panel of no fewer than two Commissioners rather than placing the request before a single Commissioner.
(c) through (d) No change.
(e) Should a warrant be issued, such will be transmitted to the requesting agency for appropriate service or filing. Alleged violators of conditional release will be entered into the Florida Crime Information Center and National Crime Information Center databases, unless in custody. The Commission has authority to pursue extradition of alleged violators from other jurisdictions.
(f) Should a warrant be issued, and a dismissal of the warrant is requested by the Revocation Administrator or his designee, the signing Commissioner or Chair is authorized to dismiss the warrant for good cause or have the dismissal request placed on the docket before a panel of no fewer than two (2) Commissioners for a decision.
(2) No change.
(3) Release on Recognizance.
(a) The Commission, or a Commissioner or a duly authorized representative of the Commission may, at any time during the violation process, release a conditional releasee on recognizance bond, conditioned upon the conditional releasee’s appearance at any hearings noticed by the Commission or until further order of the Commission. However, any release on recognizance bond authorized by a hearing officer who is not a Commissioner, shall be with the approval of the revocation administrator or his designee.
(b) through (d) No change.
(4) Conditional Release Violation Hearing.
(a) through (b) No change.
(c) Any conditional release violation hearing may be waived by the conditional releasee after an explanation of the consequences of a waiver. The waiver shall be in writing and shall be executed before a Commissioner or duly authorized representative of the Commission. The conditional releasee may withdraw the waiver by submitting a written request which waives all time constraints. The waiver withdrawal request must be appropriately witnessed, and postmarked received at the Commission headquarters within 14 days after the execution of the waiver. Upon receipt of a timely the waiver withdrawal request, a conditional release violation hearing shall be convened after appropriate notice.
(d) The conditional releasee is entitled to request that his conditional release violation hearing be postponed until such time as any pending criminal charges that are listed on the Commission’s warrant or notice of hearing have been resolved or upon a showing of good cause. The request for postponement or continuance may be submitted to the person conducting the hearing in writing prior to convening the hearing, provided that the reasons for the request are outlined with specificity. The granting of a continuance or postponement on behalf of the conditional releasee constitutes a waiver by the conditional releasee of all time constraints, and any requirement for a local hearing, and shall postpone disposition of the violations until notification is received by the Commission that the pending criminal charges have been resolved or the Releasee elects to proceed with or waive the hearing. If there are also pending technical violations, the granting of the postponement also postpones disposition of the technical violations until such time as the criminal charges are resolved. In the event that the conditional release violation hearing has been convened, such may be postponed or continued beyond 45 days as provided by statute, on the motion of the conditional releasee, the Commission or duly authorized representative of the Commission, provided the record reflects a good cause reason for such continuance or postponement.
(e) If there is a judicial order of incompetency, a written psychiatric or psychological determination of incompetency, or a commitment to a mental institution in the 90 days prior to the violation then an attorney shall be appointed. Once an attorney is appointed for questions of competency or if a previously appointed/retained attorney raises competency issues, then evidence of mental competency/incompetency shall be gathered and forwarded to the Commission for review. Once received by the Commission, the case shall be docketed. At the Commission meeting, the Commission may either order the violation process proceed, that the violation process be placed in abeyance, or such other order as it considers proper.
(f)(e) The conditional release violation hearing shall be convened within 45 days of receipt of written notification from the Department of Corrections that the alleged violator has been returned to the custody of the Department from another jurisdiction.
(g)(f) Subpoenas and subpoenas duces tecum for the conditional releasee and the Commission shall be issued by a Commissioner or duly authorized representative of the Commission on behalf of the State or the conditional releasee. The Commission, a Commissioner or a duly authorized representative of the Commission will decline a request to subpoena a witness whose testimony is found to be cumulative, irrelevant or nonprobative. The party requesting the subpoenas shall furnish to the Commission, a Commissioner or a duly authorized representative of the Commission the names and addresses of his proposed witnesses at least 14 days prior to the hearing date.
(h)(g) At the hearing, the accused violator may waive representation by an attorney, provided the waiver is reflected clearly in writing or in the record of the proceeding. Should the conditional releasee desire, retained counsel may represent the conditional releasee at the hearing. In the event the conditional releasee desires counsel and has not retained one, the following procedure shall apply:
1. The person conducting the hearing shall determine the conditional releasee’s financial ability to retain private counsel. When the person conducting the hearing determines a conditional releasee has the ability to retain private counsel, reasonable time shall be permitted for the conditional releasee to secure counsel, if the conditional releasee so desires.
2. If the person conducting the hearing concludes the conditional releasee is unable to secure counsel by reason of indigency, the person conducting the hearing shall then proceed to determine if the conditional releasee is eligible for appointed counsel as provided in the guidelines outlined in Gagnon v. Scarpelli, 411 U. S. 778 (1973). If a request for counsel is denied, the grounds for the denial shall be stated in the record.
(i)(h) During a conditional release violation hearing, the person conducting the hearing has authority to entertain arguments of counsel or the conditional releasee. The person conducting the hearing has authority to elect to rule on such matters during the course of the hearing or may elect to withhold ruling pending consultation with counsel or staff. Arguments of counsel of a legal nature must be reduced to writing, and, if possible, presented prior to the hearing.
(j)(i) Based on evidence presented at the violation hearing, or received by stipulation, the person conducting the hearing shall make findings of fact regarding the alleged violations, with a written recommendation to the Commission. When the Commission finds that the conditional releasee has committed one or more violations, the Commission shall within a reasonable time enter an order revoking the conditional release, restoring the conditional releasee to supervision or such other order as deemed appropriate. Notification by copy of the Commission order shall be provided to the conditional releasee. If the decision of the Commission is to revoke, the order entered shall contain the evidence relied upon and the reasons for the revocation.
(k)(j) The person conducting the hearing has authority to elect to receive information following the violation hearing if the conditional releasee stipulates to the receipt of such information and such stipulation is reflected in the record.
(l)(k) When a panel of no fewer than two (2) Commissioners commissioners revokes conditional release, the conditional releasee shall be entitled to credit for time spent in custody prior to the violation hearing for all charges that appear on the warrant and/or notice of hearing. Time spent in another jurisdiction as a result of intervening sentence(s) shall be considered. Credit for time in custody as decided by the panel shall be reflected in the order of revocation of conditional release.
(m) The Commission shall consider the credit for time served on conditional release in each case. The actual award of such credit is discretionary with the Commission. Credit for time served on conditional release shall be reflected in the Commission’s order.
(n) Pursuant to the United States Supreme Court’s decision in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998), the Commission may consider evidence that has been excluded in a criminal proceeding as the result of the application of the federal exclusionary rule.
Rulemaking Specific Authority 947.07, 947.20 FS. Law Implemented 947.1405, 947.141 FS. History–New 10-20-91, Amended 1-5-94, 4-20-94,________.