23-21.006: Initial Interview Procedure
23-21.007: Salient Factor Scoring
23-21.0165: Conditions of Parole
23-21.019: Parole Rescission
23-21.021: Warrant and Arrest
23-21.022: Revocation of Parole and Compulsory Conditional Release; Preliminary Hearings; Final Hearings
PURPOSE AND EFFECT: The Commission proposes to update rules to conform to current practices and procedures, deleting obsolete practices and procedures and standardizing to conform to other types of Commission supervision.
SUMMARY: The proposed changes clarify current practices and procedures in regards to determining eligibility for parole and scoring for parole eligibility. It also conforms the standard conditions of parole 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: 947.07, 947.071, 947.165, 947.20 FS.
LAW IMPLEMENTED: 947.04, 947.06, 947.071; 947.13, 947.16, 947.165, 947.168, 947.172, 947.173, 947.174, 947.1745, 947.1746, 947.1747, 947.18, 947.19, 947.21, 947.22, 947.23, 947.24 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:
23-21.006 Initial Interview Procedure.
(1) through (2) No change.
(a) through (b) No change.
(c) In the event an inmate is scheduled for an initial or subsequent interview and is not in the Department’s custody at that time, the examiner shall prepare a transaction sheet reflecting same and the case shall be rescheduled for the appropriate interview within 90 days. If the inmate is in another jurisdiction (state or federal) and is not serving a Florida sentence, the interview shall be conducted upon the inmate’s return to the Department’s custody.
(d) No change.
(3) through (8) No change.
(9) No change.
(a) No change.
(b) For inmates subject to incarceration as a condition of probation, the following matters shall be determined:
1. Is the inmate confined solely as the result of a commitment where his incarceration is a condition of probation? If the answer is yes, the inmate shall be advised that he is not eligible for consideration for parole. If the answer is no, then
2. Where the inmate has multiple commitments, at least one of which is a concurrent commitment where his current incarceration is a condition of probation, and at least one of which is a non-probationary commitment which will expire subsequent to the expiration of the condition of incarceration, the inmate shall not be ineligible for parole on that account, but shall have a presumptive parole release date established beyond the expiration date of the condition of probation.
3. Where the inmate has multiple commitments, at least one of which is a consecutive commitment where his incarceration is a condition of probation, the inmate shall be eligible shall not be ineligible for parole to the incarceration portion of his probation on that account.
(c) No change.
(10) through (15) No change.
Rulemaking Specific Authority 947.07 FS. Law Implemented 947.002, 947.16, 947.165, 947.172 FS. History–New 9-10-81, Amended 10-1-82, 8-1-83, Formerly 23-21.06, Amended 1-26-93, 1-5-94, 8-17-06,________.
23-21.007 Salient Factor Scoring.
Salient factors (1) through (6) shall be calculated on the inmate’s entire criminal record,. including the present offense of conviction.
(1) through (3) No change.
(4) AGE AT OFFENSE WHICH LED TO THE FIRST INCARCERATION:
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17 Years or younger |
= |
2 Points |
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18-25 Years |
= |
1 Point |
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26 Years or older |
= |
0 Points |
(a) through (d) No change.
(e) For the purposes of this item, if the inmate was placed on probation which later was revoked, use the age of the inmate on the date of the behavior leading to revocation. Do not use the age of the defendant at the time of the offense which led to the probation or the date of the revocation.
(f) through (g) No change.
(5) No change.
(6) NUMBER OF PRIOR ESCAPE CONVICTIONS:
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One or more prior escape conviction(s) |
= |
1 Point |
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No prior escape conviction |
= |
0 Points |
(a) No change.
(b) Score 0 if the inmate has no prior escape conviction.
(c) More than one escape conviction shall be considered a negative indicant of parole prognosis and may be used as an aggravating factor.
(7) BURGLARY OR BREAKING AND ENTERING AS THE PRESENT OFFENSE OF CONVICTION:
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Present Offense of Conviction |
= |
1 Point |
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includes a conviction for burglary |
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Or breaking and entering |
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Otherwise |
= |
0 Points |
(a) No change.
(b) Score 0 if the present offense of conviction does is not include a burglary or breaking and entering. Do not point convictions for entering without breaking, attempted burglary, attempted breaking and entering or possession of burglary tools.
(c) through (d) No change.
Rulemaking Specific Authority 947.07, 947.165 FS. Law Implemented 947.002, 947.13, 947.165 FS. History–New 9-10-81, Amended 10-1-82, 8-1-83, 7-1-84, Formerly 23-21.07, Amended 1-26-93, 1-5-94, 8-17-06, 12-30-08,________.
23-21.0165 Conditions of Parole.
(1) The following are the Standard Conditions of Parole:
(a) Condition 1 – Promptly upon being released on parole, I shall proceed to my planned place of residence. ______, where I shall reside. Immediately upon my arrival, I shall report in person to the probation and parole office in _______ County, Florida, as instructed by the release officer, on _______ at ________. If no specific date/time is given, I shall report within 72 hours of my release by personal visit to the parole supervisor under whose supervision I am to be paroled. The parole supervisor’s address is: ____________________.
(b) No change.
(c) Condition 3 – I shall submit a full and truthful report to my parole officer before the fifth day of each month in writing on the forms provided or in person as directed by my parole supervisor.
(d) Condition 4 – I shall not:
1. Use or possess alcohol or intoxicants of any kind.
2. Use or possess narcotics, drugs, or marijuana unless prescribed by a physician.
3. Enter any business establishment whose primary purpose is the sale/consumption of alcoholic beverages.
(e) Condition 5 – I 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.
(f) through (k) No change.
(l) Condition 12 – I shall execute and provide authorizations to release records to my parole supervisor and the Commission so my progress and participation in required programs can be monitored and documented.
(2) through (4) No change.
(5) A panel of no fewer than two Commissioners has authority to cause a review of the progress of a parolee, or the Department of Corrections may make recommendations to the Commission whether to modify the reporting schedule or further modify the terms and conditions of parole. A panel of no fewer than two Commissioners shall discharge from parole, relieve from making further reports or permit the parolee to leave the country upon determining that such action is in the best interest of the parolee and of society. Such cases shall be docketed before the panel of commissioners, if available, that initially set the terms and conditions of conditional release.
(6) A panel of no fewer than two (2) commissioners shall review the progress of each person who has been placed on parole after two years of supervision in the community and not less often than biennially thereafter. Such reviews must include consideration of whether to modify the reporting schedule, thereby authorizing the person under supervision to submit reports quarterly, semi-annually, or annually. In the event the Commission elects to place a parolee on quarterly, semi-annually or annual reporting, the following definitions will be applicable:
(a) Quarterly reporting – one personal contact required every three (3) months.
(b) Semi-annual reporting – one personal contact required every six (6) months.
(c) Annual reporting – one personal contact required every twelve (12) months.
(7) The panel may 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 parole supervisor.
(8) Such modification shall not impose new or different terms or conditions of parole more restrictive than was stated in the original certificate.
Rulemaking Specific Authority 947.07, 947.20 FS. Law Implemented 947.1747, 947.20, 947.23 FS. History–New 8-1-83, Formerly 23-21.165, Amended 1-26-93, 1-5-94, 8-17-06,________.
23-21.019 Parole Rescission.
(1) Any Commissioner has authority to postpone any inmate’s effective parole release date based on the criteria set forth in subsections 23-21.015(12) and 23-21.016(2), F.A.C.
(a) through (b) No change.
(2) through (5) No change.
Rulemaking Specific Authority 947.07 FS. Law Implemented 947.13, 947.1745 FS. History–New 9-10-81, Amended 10-1-82, 8-1-83, Formerly 23-21.19, Amended 1-26-93, 1-5-94, 8-17-06,________.
23-21.021 Warrant and Arrest.
(1) through (3) No change.
(4) Should a warrant be issued, such will be transmitted to the requesting agency for appropriate service or filing. The warrant information will be entered into the Florida Crime Information Center and National Crime Information Center databases, unless the alleged parole violator is in custody in Florida. The Commission has the authority to pursue extradition of alleged violators from other jurisdictions.
(5) Should a warrant be issued, and a dismissal of the warrant is requested, the signing Commissioner or Chair is authorized to dismiss the warrant for good cause or a Commissioner may docket the warrant dismissal request for consideration by the full Commission.
(6) Emergency Warrants.
(a) An emergency warrant can be issued by a Commissioner or any Commission representative duly authorized by the Chair when the Commission receives notification from an arresting agency that a parolee has been arrested and charged with a new felony offense and there is no outstanding Commission warrant for the parolee.
(b) The decision to issue an emergency warrant shall be based on evidence which indicates reasonable grounds to believe a parolee violated the conditions of parole. The issuance of an emergency warrant is discretionary.
(c) Should an emergency warrant be issued, such will be transmitted to the detaining agency for appropriate service or filing. Alleged violators of parole will be entered into the Florida Crime Information Center and National Crime Information Center, unless in custody. The Commission has authority to pursue extradition of alleged violators from other jurisdictions.
(d) Should an emergency warrant be issued and a dismissal of the emergency warrant is requested by the revocations administrator or his designee, the signing Commissioner, without the approval of the Chair, or Commission representative authorized to execute warrants, with the approval of the Chair, is authorized to dismiss the warrant for good cause.
Rulemaking Specific Authority 947.07, 947.22 FS. Law Implemented 947.22, 947.23 FS. History–New 9-10-81, Amended 7-1-84, Formerly 23-21.21, Amended 1-26-93, 1-5-94, 8-17-06,________.
23-21.022 Revocation of Parole; Preliminary Hearings; Final Hearings.
(1) Preliminary Hearing. Within 30 days of service or filing of the Commission’s warrant in this State, an alleged parole violator will be provided a preliminary hearing. The purpose of the preliminary hearing is to determine if there is probable cause that a violation of parole has occurred.
(2) through (4) No change.
(5) Prior to the preliminary hearing, the parolee may elect to waive such hearing, provided such waiver is executed in writing before a Commissioner or duly authorized representative of the Commission, and follows a full explanation of all rights, procedures, and possible consequences. The parolee may withdraw the waiver by submitting a written request which waives all time constraints. The waiver withdrawal request must be appropriately witnessed, and postmarked within 14 days after the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a preliminary hearing shall be convened after appropriate notice.
(6) The parolee may also request postponement of the preliminary hearing, until such time as any pending criminal charges that are listed on the Commission’s warrant or notice of hearing have been resolved. The granting of a postponement on behalf of the parolee shall waive all time constraints and shall postpone disposition of all violations until notification is received by the Commission that the pending criminal charges have been resolved or the parolee elects to proceed with or waive the preliminary hearing such postponement and the reasons thereof being reflected in the record. Should the parolee fail to contact the Commission and request a hearing upon the disposition of local charges resulting in a sentence to incarceration, the parolee has waived his right to a preliminary hearing.
(7) The parolee may request that the preliminary hearing be continued upon showing of cause. The request for continuance shall 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 on behalf of the parolee shall waive all time constraints. If a preliminary hearing has been convened, such may be continued on the motion of the parolee, the Commission or duly authorized representative of the Commission, provided the record reflects a good cause for such continuance.
(8) 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.
(9)(6) At least 7 days prior to the preliminary hearing, the parolee shall be informed in writing of the date, time, and location of the hearing. The parolee shall also be informed in this notice of the charges which are to be considered at the hearing and the notice shall contain all rights regarding the hearing as heretofore stated.
(10)(7) The Commission representative who is responsible for holding the preliminary hearing shall have the authority to administer oaths to all witnesses. The Commission representative is responsible for the conduct of the hearing, evaluation of evidence presented and shall make findings based on such evidence with respect to the issue of probable cause. Following all testimony, the Commission representatives shall announce, verbally, the findings regarding probable cause issues and shall promptly provide a written statement of the findings to the parolee within 30 days following the hearing.
(11)(8) Following the hearing, the Commission representative shall prepare a written summary of the hearing. The written summary, which will include recommendations for further Commission action, shall be transmitted to the Commission for action. The written summary shall also contain any mitigating circumstances which are brought to light as a result of the proceeding and a statement on realistic alternatives to further incarceration, if any.
(12)(9) Upon receipt of the preliminary hearing summary, the Commission shall review same and make a further decision with respect to possible restoration to parole or discharge from further supervision or the return of the parolee for a final revocation hearing.
(13)(10) Any parolee who has been arrested pursuant to a Commission warrant may request and shall be provided a hearing on the matter of release on recognizance regarding the Commission warrant. Such hearing may be held by a Commission representative, who shall provide the Commission with a written report regarding the hearing after which the Commission shall make a decision and inform the parolee. A Commissioner is authorized to order a parolee released on his recognizance. However, the parolee must sign a written statement agreeing:
(a) through (c) No change.
(d) That his release on recognizance is subject to review and approval by the Commission or the Commissioner who executed the warrant, or the Chair in his absence., and that should his release on recognizance be disapproved, the parolee must surrender himself for return to custody pending disposition of the alleged violation. Failure to surrender shall result in the rearrest of the parolee.
(14)(11) If the Commission decides to conduct a final revocation hearing, an order shall be entered to that effect. A notice of that order shall be served upon the sheriff of the county in which the alleged parole violator is being detained. the The Commission or a Commission representative may request the immediate transfer of the alleged violator to an appropriate Department facility. The final revocation hearing shall be noticed and convened within 60 days of receipt of written notification from the Department of the return of the alleged violator to the custody of the Department. If the alleged violator is already in the custody of the Department from another jurisdiction, or has been released on recognization, or the Commission has elected not to have the violator transferred to the Department, the final revocation hearing shall be noticed and convened within 60 days of the preliminary hearing, or the waiver of that hearing.
(15)(12) Final Hearing. The parolee shall be informed, in writing, at least 14 days prior to the final revocation hearing of the date, time and location of such hearing. The notice of the hearing shall contain the charges of violation and shall contain a list of the rights the parolee shall be afforded for such hearing as follows:
(a) through (e) No change.
(16)(13) Any final hearing can be waived by the parolee after an explanation of all rights and possible consequences of waiver. The waiver shall be in writing and shall can be executed before a member of the Commission or the Commission’s designated representative. The parolee may withdraw the waiver by submitting a written request which waives all time constraints executing a withdrawal of waiver form and forwarding to the Commission headquarters. The waiver withdrawal request must be appropriately witnessed and postmarked within 14 days after the execution of the waiver. The withdrawal of waiver form and instructions regarding its use shall be provided to the parolee at the time of the execution of the waiver. Upon receipt of a timely the withdrawal of waiver form, a final revocation hearing shall be convened after appropriate notice. Such hearing shall be conducted in accordance with these rules.
(17)(14) The parolee is entitled to request that his final revocation hearing be postponed or continued, upon a showing of good cause. The request for postponement or continuance may be submitted to the Parole Examiner or Commission, in writing, prior to the convening of the hearing, provided that the reasons for the request are outlined with specificity. In the event that the final hearing has been convened, such may be postponed or continued beyond 60 days provided the record reflects good cause for such continuance.
(18)(15) The final revocation hearing is a two-part hearing with the first emphasis being placed on the factual determination as to whether or not violations have occurred. The second part of the final revocation hearing is the determination of whether or not the parole should be revoked. In reaching such a determination, the Commission shall consider all mitigating circumstances which were made known at the time of the hearing and shall consider alternatives other than reincarceration prior to making a final determination.
(19)(16) During the course of a final revocation hearing, the person or persons conducting the hearing may entertain any arguments of counsel or the parolee, or other such matters. The person or persons conducting the hearing may elect to rule on such matters during the course of the hearing or may elect to withhold ruling pending consultation with Commission counsel or individual staff members. Arguments of counsel of a legal nature must be reduced to writing. If possible, written legal arguments should be presented prior to final revocation hearings. If the person conducting the hearing elects not to address arguments of counsel or the parolee during the course of the hearing, such shall be made known to the interested parties. In the event a decision is made during the course of the final revocation hearing, such decision shall be reflected in the record, and then reviewed by the Commission. 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.
(20)(17) Subpoenas and subpoenas duces tecum for the parolee and State shall be issued by the Commission’s duly authorized representative on behalf of the State or the parolee for both the preliminary and final revocation hearings. The Commission, a Commissioner or a duly authorized representative of the Commission may 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.
(21)(18) At both the preliminary and final revocation 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 accused desire, retained counsel may represent the parolee at both hearings. In the event the parolee desires counsel and has not retained such, the following procedure shall apply:
(a) No change.
(b) If it is concluded that the parolee is unable to secure retained counsel by reason of indigency or other valid reasons, then the Commission shall proceed to determine if the parolee is eligible for appointed attempt to secure counsel pursuant to the guidelines of Gagnon v. Scarpelli, 411 U.S. 778 (1973) at 790. If a request for counsel is denied refused, the grounds for refusal denial shall be stated succinctly in the record. Gagnon, supra, at 790-791.
(22)(19) The person or persons conducting the hearing may elect to receive information following the revocation hearing provided the parolee agrees to the receipt of such information outside of the context of the hearing and that such agreement is reflected clearly in the record.
(23)(20) Based on evidence presented at the hearing, the person or persons conducting the hearing shall make findings of fact regarding the alleged violations, and report that to the Commission. The Commission may enter an order revoking the parole, reinstating the parolee to supervision, or enter such other order as deemed appropriate by the Commission. When, based on the findings of the person or persons conducting the hearing, the Commission finds that the parolee has committed one or more violations, the Commission may elect to order the parolee returned to supervision with a new term not to exceed statutorily prescribed limits and may elect to establish new conditions of the parole provided the parolee agrees to each term and condition. In any event, the Commission shall make a decision in an open meeting within 45 days following the revocation hearing. Prompt notification of the decision shall be provided to the parolee and his defense attorney, unless such notification is waived by the parolee. If the decision of the Commission is to revoke, the order entered shall contain the evidence relied upon and the reasons for the revocation.
(24)(21) Upon a finding that the parolee did commit one or more violations, the Commission may order the parolee placed in a community control program. Placement in community control shall be utilized by the Commission, in its judgment, for parole violators who are not suitable for restoration to standard supervision and would, therefore, be revoked if not for the alternative of community control placement. When ordering such placement in community control, the Commission shall specify:
(a) through (f) No change.
(25)(22) Release on Own Recognizance:
(a) At a scheduled final revocation hearing, a Commissioner can place an alleged parole violator on ROR when the final hearing is postponed or continued.
(b) During the final revocation hearing, a Commissioner may place the parolee charged with violation on ROR when:
1. The parolee was on ROR prior to the convening of the final revocation hearing.
2. Insufficient evidence is produced to sustain any violation of parole.
3. Upon finding that the parolee did violate one or more conditions of parole, the hearing officer announces his intention to recommend action other than revocation of parole.
(c) Subsequent to the final revocation hearing in which there was a finding that the parolee did violate one or more conditions of parole, the hearing officer can recommend the parole violator be placed on ROR upon receipt of pertinent favorable information. Violations of the conditions of release can cause an order to revoke the ROR to be executed by a Commissioner when reliable information is received of violation of release on recognizance. Such order shall be sufficient to cause the arrest and return of the parolee to custody.
(26)(23) Violation of the conditions of parole for grounds other than for a new conviction: An inmate who is found guilty for a violation of the conditions of his parole on grounds other than for the commission of a new felony or misdemeanor offense may be reinstated to parole, discharged from parole or revoked. The following information should be considered in making that determination:
(a) through (b) No change.
(c) The parolee’s behavior demonstrates the inability or unwillingness of the parolee to conform to minimum parole restraints so as to prevent successful completion of the Court imposed sentence outside of actual confinement. Any parole violation leading to revocation is the manifestation that the parolee’s record during confinement was NOT good. These inmates will be scheduled for interview to determine whether or not they are eligible for consideration for parole within 6 months of the revocation.
(27)(24) Should the Commission decide to revoke the parole, the parolee shall be entitled to all credit for time spent in custody prior to the revocation hearing for all charges that appear on the warrant and/or notice of hearing. Time spent in other jurisdictions as a result of intervening sentences shall be considered by the Commission. The Commission shall consider the credit for time served on parole in each case. The actual award of such credit is discretionary with the Commission. Credit for time served on parole shall be reflected in the Commission’s order.
(28)(25) If the Commission’s decision is to revoke the parole, the parolee or releasee shall be scheduled for an interview by a Commission representative within six months from the date the Commission’s order revoking parole. The purpose of this interview shall be to formulate a recommendation to the Commission for the setting of a presumptive parole release date consistent with appropriate statutory requirements and Commission policies and practices as reflected in these rules. Should the parolee have received a prison commitment, a presumptive parole release date shall be established according to appropriate statutory requirements and Commission practices and policies as reflected in these rules regarding newly sentenced inmates.
Rulemaking Specific Authority 947.07 FS. Law Implemented 947.23, FS. History–New 9-10-81, Amended 10-1-82, 7-1-84, Formerly 23-21.22, Amended 5-10-87, 1-26-93, 1-5-94, 8-17-06,________.