33-601.226: Youthful Offender Program Participation
PURPOSE AND EFFECT: The purpose of the rule is to amend provisions relating to sentence modification and protocol in the Youthful Offender Program. The effect is to clarify and define the requirements for “successful completion” of the Youthful Offender program leading to a Departmental recommendation for sentence modification, to set forth the Extended Day Program Phases and process by which sentence modification is recommended, and to generally clarify the Youthful Offender program protocol, including what circumstances result in remediation, ineligibility for sentence modification or removal from the program.
SUMMARY: The rule amends provisions relating to sentence modification and protocol in the Youthful Offender program. It adds new definitions, clarifies program phases and generally defines the protocol that must be successfully completed for a Departmental recommendation of sentence modification.
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 affects internal operations of the Department by permitting more flexibility in where a youthful offender program will be located and would not have an impact on small business or the private sector, the rule is not expected to require legislative ratification.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Based on information provided by the Bureau of Finance and Accounting indicating the changes only affect where the trust monies are directed within the Department and therefore have no effect on small business, as well as information indicating that the changes would not require any additional training or have any other regulatory cost, 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, 958.04, 958.11 FS.
LAW IMPLEMENTED: 944.09, 958.04, 958.11, 958.12 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: Laura Gallagher, 501 S. Calhoun Street, Tallahassee, Florida 32399-2500
THE FULL TEXT OF THE PROPOSED RULE IS:
33-601.226 Youthful Offender Program Participation.
(1) Each youthful offender institution shall provide a programmatically diversified extended day of 16 hours of required inmate participation six days a week, contingent upon available resources.
(2) The schedule of events shall be developed by each warden and approved by the regional director and the Office of Institutions.
(3) Definitions. Successful participation in all phases of the youthful offender extended day program and successful completion of the offender management plan and reclassification to minimum or community custody will result in an evaluation by the ICT to determine the inmate’s eligibility for a recommendation to the court for a modification of sentence at any time prior to the scheduled expiration of sentence as provided in Section 958.04(2)(d), F.S. Requests for sentence modification will not be made before successful completion of the extended day program.
(a) Bureau of Classification Management – the bureau in the central office responsible for the overall classification system in the department, including reception, facility, work, program, and custody assignments, disciplinary processes, population management, maintaining active and inactive inmate records, overseeing and auditing all the processes involved with sentencing documents received from the courts, and controlling inmates’ prison commitment as well as the coordination of release processes. After the youthful offender has successfully participated in the youthful offender program and completed the IMP as developed, a complete evaluation of the case shall be initiated. The evaluations shall include a review and summary of the following areas:
1. Disciplinary record;
2. Gain time earned, forfeited or withheld and reasons for the action taken;
3. Academic and vocational accomplishments;
4. Work assignments which would assist the youthful offender in obtaining future employment;
5. Counseling programs;
6. Substance abuse programs;
7. Other programs and objectives specifically recommended for the youthful offender; and
8. Release placement plan prepared by probation and parole office staff which will include proposed residence, employment, family ties or support systems, financial resources, other resources available to the inmate and any recommendation for continued treatment;
9. Nature of offense and length of sentence.
(b) Extended Day Program – a 16-hour per day, multi-phase program at designated youthful offender institutions designed to reduce inmate idleness and improve a youthful offender’s chance of successful re-entry into the community. The evaluation of the youthful offender’s eligibility for a recommendation for a modification of sentence shall be coordinated by the institutional classification staff and incorporated into a complete progress report. The completed progress report shall be reviewed and, once approved, signed by the ICT and a representative of the SCO.
(c) Institutional Classification Team (ICT) – the team consisting of the warden or assistant warden, classification supervisor, chief of security, and other members as necessary when appointed by the warden or designated by rule. The ICT is responsible for making work, program, housing, and inmate status decisions at a facility and for making other recommendations to the state classification office. Prior to making a recommendation for sentence modification, the inmate’s classification officer shall send a Victim Input Statement, Form DC1-701B, to the victim(s) or the victims’ family for comments regarding the release of the inmate. Form DC1-701B is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Research, Planning and Support Services, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is 2-19-03.
(d) Review Board – the team consisting of extended day program staff, to include at least one officer of the rank of sergeant or above and a staff member directly involved in the training and instruction of youthful offenders, responsible for determining advancement through the phases of extended day program. Once the inmate has been approved by the ICT and the SCO for a recommendation for sentence modification, a request for initiation of a Youthful Offender’s Release Placement Plan, Form DC6-121, shall be made to the community corrections office in the county where the inmate plans to reside. The community corrections office in the county where the inmate plans to reside shall complete the placement release plan and return it to the requesting institution. Form DC6-121 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is 2-19-03.
(e) State Classification Office (SCO) – the office or office staff at the central office level that is responsible for the review of inmate classification decisions. Duties include approving, disapproving, or modifying institutional classification team recommendations. The sentence modification package shall include at a minimum the following:
1. The completed release placement plan that has been verified by community corrections field staff;
2. The completed victim input statement forms;
3. A progress report with justification for sentence modification;
4. An order of modification of sentence placing defendant on probation prepared by the classification officer for the judge’s signature;
5. A completed Defendant’s Waiver of Rights to Modify Sentence and Place Defendant on Probation, Form DC3-235. Form DC3-235 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is 2-19-03.
(f) The completed sentence modification package shall be forwarded to the Bureau of Classification and Central Records for review by the central office screening committee.
(g) The central office screening committee shall review the sentence modification request for completeness and shall make a written recommendation to the Deputy Director of the Office of Institutions (classification) to approve or disapprove the request.
1. If the Deputy Director concurs with the recommendation for sentence modification, the Chief of the Bureau of Classification shall transmit a written request to the sentencing judge to consider modifying the inmate’s sentence.
2. If the Deputy Director does not concur with the recommendation for sentence modification, the Chief of Classification will notify the ICT at the facility where the inmate is housed. The ICT will notify the inmate of the decision.
(h) One or more of the following will render the inmate ineligible for consideration of a sentence modification to the court:
1. Conviction for murder, attempted murder, or an offense resulting in a death;
2. Conviction for sexual battery pursuant to Section 794.011, F.S.;
3. Conviction for kidnapping pursuant to Section 787.01, F.S.;
4. Conviction for carjacking pursuant to Section 812.133, F.S.;
5. Conviction for domestic violence pursuant to Section 741.28, F.S.;
6. Conviction for home invasion robbery pursuant to Section 812.135, F.S.;
7. Sentenced as a habitual offender pursuant to Section 775.084, F.S.; or
8. Currently serving mandatory portion of a sentence pursuant to Section 775.082, F.S.
(i) If the recommendation is approved by the sentencing judge, the community corrections office shall send the certified court order to the Bureau of Sentence Structure and Population Management for the inmate to be released through the department’s release procedures.
(j) If the judge disapproves the modification request, the community corrections office that handled the modification request shall notify the chief of the Bureau of Classification and Central Records and the ICT. The ICT shall notify the inmate.
(4) Extended Day Program Phases. Extended day program phases are consecutive. An inmate must participate in Phase I before advancement to Phase II and Phase II before advancement to Phase III.
(a) Phase I shall consist of a two-week orientation period, including a broad, extensive training program including physical fitness, work assignments, regimented application of discipline, and personal development programs. To advance to Phase II, the inmate must pass an evaluation on orientation materials.
(b) Phase II shall consist of continued demonstration of skills learned in Phase I, adherance to the structure of the extended day program, and positive consistency and participation in vocational, academic, and betterment programs.
(c) Phase III shall consist of:
1. Continued demonstration of capability in the areas of personal responsibility, discipline, job assignments, and academic and vocational programs, as well as all other areas of daily living and activities;
3. Maintenance of high proficiency in achievements;
4. Providing assistance to staff with designated activities; and
5. Evaluation by the review board and ICT in all areas on a continual basis to ensure that the inmate should remain in Phase III.
(d) Remedial Phase. The remedial phase is designed for inmates who pose disciplinary and management problems or have basic needs for additional behavior modification measures based on poor institutional adjustment or behavior. The remedial phase shall consist of a period of behavior modification emphasizing compliance with rules, proper institutional adjustment, and appropriate social behavior.
(5) Advancement to Phase III.
(a) A Phase II inmate wishing to participate in Phase III must apply for advancement using Form DC6-188, Inmate Promotional Request, and an evaluation by the ICT will be conducted to determine whether the inmate is eligible for advancement to Phase III. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The form became effective on July 30, 2008.
(b) If approved by the ICT for advancement, the inmate shall be eligible for recommendation for modification of sentence pursuant to subsection (6) of this rule. No inmate has a right to recommendation for modification of sentence. Institutional classification staff are authorized to notify the Bureau of Classification Management or designee of an inmate who meets the criteria for recommendation for modification of sentence.
(6) Recommendations for Modification of Sentence.
(a) The following will result in an evaluation by the Bureau of Classification Management or designee of the inmate’s eligibility for recommendation to the court for a modification of sentence at any time prior to the scheduled expiration of sentence as provided in Section 958.04(2)(d), F.S.:
1. Successful participation in all phases of the youthful offender extended day program, to include participation in Phase III of the extended day program for a minimum of 180 consecutive days; and
2. Reclassification to minimum or community custody.
(b) Successful participation in the extended day program is defined as:
1. Satisfactory gain time ratings in Phase III for a minimum of 180 days;
2. Participation in recommended programs;
3. No disciplinary reports for the previous four months; and
4. No more than four corrective consultations for the previous four months.
(c) Evaluation of the inmate’s eligibility will include, but will not be limited to:
1. Review of circumstances of offense;
2. Institutional adjustment; and
3. Achievements.
(d) One or more of the following will render the inmate ineligible for recommendation of a sentence modification to the court:
1. Conviction for murder, attempted murder, or an offense resulting in a death;
2. Conviction for sexual battery pursuant to Section 794.011, F.S.;
3. Conviction for kidnapping pursuant to Section 787.01, F.S.;
4. Conviction for domestic violence pursuant to Section 741.28, F.S.;
5. Sentenced as a habitual offender pursuant to Section 775.084, F.S.;
6. Currently serving the minimum mandatory portion of a sentence; or
7. The inmate has previously been granted modification of sentence under the provisions of this rule.
(7) Extended Day Program Assessment. Each inmate shall be required to participate in Phase III in a satisfactory manner for a minimum of 180 consecutive days in order to be considered for recommendation to the court for modification of sentence.
(a) The review board shall continually assess the inmate’s participation in the program and recommend status assignments. Should an inmate fail to successfully perform as set forth in subparagraphs (6)(b)2. through 4. of this rule at any time during Phase III, days served successfully will not be counted toward the minimum 180 day successful participation requirement.
(b) Inmates who have successfully participated for the required time period shall remain subject to the rules of the department and the extended day program. Failure to adhere to the administrative rules of the department shall be grounds for removal from consideration for recommendation for modification of sentence, withdrawal of the department’s request to the court for modification of the inmate’s sentence, or a request by the department to rescind modification of sentence. Form DC6-194, Order Rescinding Order Modifying Sentence, will be completed by the Bureau of Classification Management or designee and provided to the court with the request to rescind modification of sentence. Form DC6-194 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is April, 2012.
(8) Removal from Consideration for Recommendation.
(a) An inmate shall be removed from the program when such removal is in the best interest of the inmate or the security of the institution and in accordance with Section 958.11, F.S. However, if the inmate has completed the minimum requirements prior to removal, and such removal is not due to the inmate’s receipt of a disciplinary report or corrective consultation, the inmate shall still be considered for recommendation for modification of sentence.
(b) An inmate shall be removed from consideration for recommendation for modification of sentence for behavioral, performance, or disciplinary reasons.
(9) Sentence Modification Process.
(a) Inmates who have satisfactorily participated in the extended day program and who meet the eligibility criteria in subsection (6) of this rule will be recommended for sentence modification.
(b) If determined eligible, institutional classification staff shall forward a completed Form DC6-195, Defendant’s Waiver of Rights in Modification of Sentence, to the Bureau of Classification Management or designee The waiver shall be forwarded no earlier than five days prior to the expected completion of the 180-day requirement. Form DC6-195 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is April, 2012.
(c) The Bureau of Classification Management or designee shall approve the ICT’s recommendation, disapprove the recommendation, or refer the matter back to the ICT for additional information within 5 working days from receipt of the ICT’s recommendation.
(d) If approved by the Bureau of Classification Management or designee, a cover letter reporting that the inmate is participating satisfactorily in the program will be sent to the community corrections intake office within the circuit of the sentencing court by the Bureau of Classification Management or designee within 5 working days from approval of the ICT’s recommendation.
(e) The community corrections intake office shall complete Form DC6-193, Order Modifying Sentence, and submit it to the court for approval or disapproval within 5 working days from receipt of the request. Form DC6-193 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is April, 2012.
(f) The community corrections intake office shall ensure that Form DC6-193 is received from the sentencing court and shall route the form to the appropriate staff in the Bureau of Classification Management.
(g) The appropriate staff in the Bureau of Classification Management or designee will be notified as to the receipt of Form DC6-193.
(h) Upon receipt of the court’s written action, the appropriate staff in the Bureau of Classification Management shall make the necessary sentence structure adjustments and, if applicable, initiate release processes.
(i) If the sentence modification order is not received within 35 working days after the request is made, the Bureau of Classification Management or designee shall notify by email or by telephone the community corrections intake office that submitted the sentence modification packet to the court. The community corrections intake office staff shall contact the sentencing judge to determine the status of the request for sentence modification. Community corrections intake staff shall notify the Bureau of Classification Management or designee of the status of the request for sentence modification. If the community corrections intake office staff member obtains the approved DC6-193, the staff member shall forward the form to the appropriate staff in the Bureau of Classification Management, and the processes enumerated in paragraphs (9)(g) through (9)(h) of this rule shall be followed.
(j) If the sentencing court disapproves the sentencing modification, the community corrections intake office shall notify the Bureau of Classification Management or designee. The Bureau of Classification Management or designee shall notify the ICT at the institution housing the inmate. The ICT shall notify the inmate of the court’s denial.
(10) Nothing in this rule is intended to prohibit an inmate from petitioning the court if the inmate believes he or she has successfully participated in the program on the basis set forth in this rule or on the basis of other facts he or she believes are relevant.
Rulemaking Authority 944.09, 958.04, 958.11 FS. Law Implemented 944.09, 958.11, 958.12 FS. History–New 10-11-95, Amended 9-11-97, Formerly 33-33.013, Amended 3-13-01, Formerly 33-506.106, Amended 4-2-02, 2-19-03, 9-16-04,________.