33-601.101: Incentive Gain Time
PURPOSE AND EFFECT: The purpose and effect of the proposed rulemaking is to clarify when an inmate may be ineligible for gain time.
SUMMARY: The proposed rule clarifies when an inmate is ineligible to earn incentive gain time following receipt of a disciplinary report.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
Based on analysis from the Bureau of Classification and Central Records indicating that the rule change only impacts internal operations of the Department’s classification system and would not have an impact on small business or the private sector, the rule is not expected to require legislative ratification.
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.
RULEMAKING AUTHORITY: 944.09, 944.275, 944.281 FS.
LAW IMPLEMENTED: 944.09, 944.275, 944.281, 944.801(3)(i)5. FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kendra Jowers, 501 South Calhoun Street, Tallahassee, Florida 32399-2500
THE FULL TEXT OF THE PROPOSED RULE IS:
33-601.101 Incentive Gain Time.
(1) through (2) No change.
(3) How credited. For inmates eligible to receive consideration under this section, the following procedures shall be used.
(a) Each inmate eligible for consideration for award of incentive gain time shall receive gain time evaluations based upon his institutional adjustment as reflected in evaluations from security, work and program components, if assigned. If it becomes necessary to make corrections to the inmate’s monthly security, work or program evaluations after the evaluations have already been submitted, the request for correction along with the reasons for the correction shall be submitted in writing to the department head for approval. The approved corrections shall be submitted to the classification correctional probation officer or his designee who shall make the necessary changes.
1. through 4. No change.
(b) The classification correctional probation officer or designee shall evaluate the security and performance ratings which reflect the inmate’s institutional adjustment for the month. The final determination of an award of incentive gain time shall be determined by the classification correctional probation officer or designee and shall be based on the inmate’s overall monthly activities. When the classification correctional probation officer or designee concurs with the preliminary base gain time recommendation being applied no modification is required. The preliminary base gain time recommendation may be modified by the classification correctional probation officer as reflected by the inmates overall institutional adjustment and level of work and program participation for the month. The classification correctional probation officer or designee may modify the preliminary base gain time recommendation upward or downward from 1 to 4 days not to exceed the maximum eligible award. Any time the classification correctional probation officer or designee modifies the preliminary base gain time recommendation, the reason for the modification shall be noted. These modifications will be applied to the preliminary base gain time recommendation reflective of the overall rating derived from the security and performance evaluation or security evaluation alone. Reasons for modification of the preliminary base gain time recommendation include:
1. through (5) No change.
(6) Inmates in disciplinary confinement status are not eligible for a work/program rating even if assigned to work or programs while in disciplinary confinement. Inmates in disciplinary confinement are eligible for a security rating award which can be modified by the classification correctional probation officer in accordance with paragraph 33-601.101(3)(b), F.A.C.
(a) Disciplinary or court action. An inmate is not eligible to receive incentive gain time for the month in which there is an infraction of the rules of the Department or the laws of the State for which he is found guilty. Additionally, those inmates on escape status and detained by other agencies may not be awarded incentive gain time for the period of time out of custody even though lodged in another confinement facility. Any inmate who is found guilty of a disciplinary report on or after July 15, 2009 and who is serving a sentence imposed for an offense committed on or after October 1, 1995 shall be eligible to earn incentive gain time as follows:
1. For disciplinary reports in which the final approved action is not confinement or loss of gain time or where the final recommended action is probation, pursuant to paragraph 33-601.308(3)(b), F.A.C., the inmate shall be eligible to earn incentive gain time the month following the month in which the disciplinary infraction occurred. However, if the inmate violates the probation and the original penalty meets the requirements of subparagraphs 2. and 3. below, the inmate is then subject to the limitations on earning incentive gain time as noted.
2. For disciplinary reports in which the final approved action is less than or equal to 30 days confinement or less than or equal to 30 days loss of gain time, the inmate shall not be eligible to earn incentive gain time for one month following the month in which the disciplinary infraction occurred. The one month period of ineligibility shall not begin to run until the inmate is in the department’s custody and would be otherwise eligible to earn gain time but for the disciplinary action or new offense.
3. For disciplinary reports in which the final approved action is greater than 30 days confinement or greater than 30 days loss of gain time, or where the inmate was convicted of an offense occurring while committed to the Department of Corrections, the inmate shall not be eligible to earn incentive gain time for two months following the month in which the disciplinary infraction or offense occurred. The two month period of ineligibility shall not begin to run until the inmate is in the department’s custody and would be otherwise eligible to earn gain time but for the disciplinary action or new offense.
4. The period of ineligibility referenced in subparagraphs 2. and 3. shall be suspended if the inmate leaves the custody of the department before completion of the period of ineligibility. The period of ineligibility will resume upon the inmate’s return to department custody and will continue to run until its completion.
5. The failure to serve the confinement imposed does not alter the ineligibility of the inmate to earn incentive gain time as noted in subparagraphs 2. and 3.
6. The ineligibility of the inmate to earn gain time as noted in subparagraphs 2. and 3. remains in effect when, due to unavailability of gain time, unearned gain time is designated as the final approved action.
(b) through (8) No change.
Rulemaking Authority 944.09, 944.275, 944.281 FS. Law Implemented 944.09, 944.275, 944.281, 944.801(3)(i)5. FS. History– New 2-26-80, Amended 1-12-83, 1-31-85, 10-7-85, Formerly 33-11.065, Amended 4-28-87, 7-12-89, 7-17-90, 10-16-90, 10-14-91, 2-17-93, 4-17-94, 7-17-94, 4-21-96, 6-1-97, 10-7-97, 3-11-98, 5-12-98, 7-9-98, 9-17-98, Formerly 33-11.0065, Amended 7-15-09, 4-19-10,________.