Notice of Proposed Rule
RULE NOS.: RULE TITLES:
23-21.001
General
23-21.002
Definitions
23-21.003
Commission Organization
23-21.004
Commission Meetings
23-21.006
Initial Interview Procedure
23-21.007
Salient Factor Scoring
23-21.008
Severity of Offense Behavior
23-21.010
Decisions Outside the
23-21.011
Calculating Time in Custody
23-21.012
Inmate Initiated Review of Presumptive Parole Release Date
23-21.013
Biennial Interview Procedure
23-21.014
Special Interviews
23-21.015
Effective Parole Release Date Interview Procedure
23-21.017
Review of Term and Conditions of Parole
23-21.018
Disposition of Special Types of Cases Under the Guidelines
23-21.019
Parole Rescission
23-21.020
Early Termination of Parole
23-21.022
Revocation of Parole and Compulsory Conditional Release; Preliminary Hearings;
Final Hearings
23-21.0051
Full Commission Reviews
23-21.0052
Panel Reviews
23-21.0155
Extraordinary Interview and Review Procedures
23-21.0161
Extraordinary Interview Procedure
23-21.0165
Conditions of Parole
PURPOSE AND EFFECT: The Commission proposes to make
changes to this rule to remove unnecessary language and clarify existing
Commission practices.
SUMMARY: The proposed rule clarifies Commission
practices at meetings, the interviewing of parole-eligible inmates, factors
considered in arriving at presumptive and effective parole release dates, and
actions to be taken upon violation of parole.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of
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
FS., 947.071 FS., 947.20
FS.
LAW IMPLEMENTED: 947.04
FS., 947.06 FS., 947.071
FS., 947.13 FS., 947.16
FS., 947.168 FS., 947.172
FS., 947.173 FS., 947.174
FS., 947.1745 FS., 947.1746
FS., 947.1747 FS., 947.18
FS., 947.19 FS., 947.21
FS., 947.22 FS., 947.23
FS., 947.24 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 RULES
IS: Susan Schwartz, Assistant General Counsel,
THE FULL TEXT OF THE PROPOSED RULES IS:
23-21.001 General.
(1) The Commission shall be known as the Florida
Parole Commission and Control Release Authority. There is no right to parole or
control release in the State of Florida. Pursuant to Article IV, Section 8,
Florida Constitution, the Commission may grant paroles or conditional releases
to persons under sentence for crimes who are eligible for consideration. The
Commission can also, as the Control Release Authority, establish control
release dates for statutorily eligible inmates. The Commission can also require
periods of supervision in conjunction with any release ordered by the
Commission including Conditional Medical Release. The Commission may rescind an
unexecuted order granting parole, and may revoke paroles, conditional releases,
control releases, compulsory conditional releases, addiction recovery or
conditional medical releases based upon violation of any of the specified
conditions of release.
(2) Gender-specific language includes the other
gender and neuter. The headquarters of the Commission is located at 1309
Winewood Boulevard, Tallahassee, Florida 32399-2450, with business hours Monday
through Friday from 8:00 a.m. to 5:00 p.m. The mailing address where the public
may obtain information or make submissions or requests is as follows:
Florida Parole Commission
1309 Winewood Boulevard
Building B, 3rd Floor
Tallahassee, Florida 32399-2450
(3) Requests for agendas of Commission meetings may be
sent to the address in subsection (1) above.
(4) All Commission rules, regulations, agendas,
directives, and minutes are open for public viewing during the course of normal
business hours at the Commission headquarters.
(5) Any interested citizen is encouraged to direct
information bearing on the consideration for parole, conditional release,
control release, or conditional medical release of any inmate to the Commission
at its headquarters.
(6)(a) Guidelines for fair treatment of victims and
witnesses in the criminal justice system are addressed in Chapter 960, F.S. The
objectives contained in the law are designed to ensure appropriate involvement
of victims and witnesses in criminal justice system proceedings. Consistent
with the legislative objectives, the Commission hereby adopts the following
guidelines pertinent to the proceedings it conducts:
(b) Notification of availability of protection –
In cases where intimidation is alleged, the Commission shall provide to the
affected victim or witness, referral information on contacting the appropriate
state attorney or law enforcement agency to obtain protection from
intimidation.
(c) Scheduling changes – All victims and
witnesses who have been notified of and scheduled to appear at Commission
meetings, or who have been subpoenaed to attend and give testimony in
revocation proceedings shall be promptly notified by the Commission of any
scheduling changes which will affect their appearances.
(d) Victim input into Commission decisions.
1. A victim, relative of a minor who is a victim,
relative of a homicide victim, or victim representative, or victim advocate
(hereinafter referred to as victims) shall receive prompt advance notification
any time a parole case is placed on the docket for Commission action regarding
that inmate or parolee. Victims shall be notified at the address found in the
police report or other criminal report or at a more current address if such has
been provided to the agency.
2. Victims of any crime committed by an inmate or
parolee shall be permitted to appear or speak, or victims can submit a written
statement regarding their views.
3. Victims are permitted to read from a prepared text
or speak with the use of notes. Any prepared text can be entered into the
inmate’s record following the victim’s oral presentation. Victims
will be allowed to use photographs and other aids in making a presentation.
Victims who prefer shall be permitted to play a tape or present a video
presentation in lieu of or in addition to a personal presentation, provided the
total time required does not exceed the allotted time. Prepared texts, letters,
notes, or other written information submitted by victims at Commission
meetings, or prior to Commission meetings, to be included in the Department of
Corrections inmate file shall be stamped confidential and excluded from file
reviews under the public records law.
4. Victims who choose not to appear at meetings or
make a written statement, but wish only to be notified of the action taken by
the Commission, will be notified of such action at a reasonable time after the
meeting.
5. Victims who appear at a meeting or submit a written
statement will likewise be notified of action taken by the Commission at the
meeting within a reasonable period of time.
6. Victims who appear and speak shall be advised that
their testimony submitted at Commission meetings shall become public record.
(7) Community Control. The Commission has authority to
require an inmate be placed in the Community Control Program of the Department
of Corrections, as a special condition of parole. The term of community control
supervision shall not exceed six (6) months. The Commission is also authorized
to impose a term of community control following a revocation of parole. In
every case in which the Commission-n decides to place an inmate on community
control as a special condition of parole, the Commission shall provide a
written explanation of the reasons for its decision.
Specific
Authority 120.53, 947.06, 947.07, 947.20, 960.001(1)(d)3. FS. Law Implemented
120.53, 947.23, 947.06, 960.001 FS. History–New 9-10-81, Formerly
23-21.01, Amended 1-26-93, 1-5-94, 8-16-94, ________.
23-21.002 Definitions.
The
following definitions are provided for the clarification of all terms used
throughout Chapter 23, F.A.C.:
(1) Aggravate means to add a number of months to the
upper month limit of the matrix time range.
(2) Aggregation means a process to separate multiple
criminal episodes and score each single episode by determining the salient
factor score, severity of offense behavior, presence of aggravating or
mitigating circumstances and assess a number of months of incarceration for
each scored episode. The total of months for each scored episode is then
aggregated (added together) for the establishment of a presumptive parole
release date.
(3) Burglary and Breaking and Entering are defined as
they are found in the Florida Statutes on the dates the crimes are committed.
(4) Chair means the Chair of the Florida Parole
Commission who, as selected by the Governor and Cabinet the duly
selected Chair, is authorized to call and preside over meetings of the Commission.
(5) Commission Meeting means a called public meeting
of the Commission.
(6) Commission Secretary means the Commissioner
elected to a one year term or until a successor is elected by the
Commission whose duties encompass serving notice and publishing information
concerning Commission meetings, preparation and distribution of the agendas,
maintenance of the official minutes, and recorder of the minutes at all
scheduled and emergency Commission meetings.
(7) Vice-Chair means the duly selected Commission
Vice-Chair who is authorized to serve in the absence of the Chair.
(8) Competent and Persuasive means that:
(a) The information is specific as to the behavior
alleged to have taken place; and
(b) The source of the allegation appears to be
reliable.
(9) Compulsory Conditional Release means the release
of an inmate from incarceration, as if on parole, as a result of a state of
emergency in the state correctional system pursuant to Section 944.598, F.S.,
and by virtue of a decision by a quorum.
(9)(10) County jail time credit means the time awarded by the
Court for time spent in custody prior to sentencing.
(10)(11) Conditional Medical Release means the release of an
inmate from incarceration by the Commission as set forth in Section 947.149,
F.S., under conditions of release and supervision, as a result of being
referred by the Department as permanently incapacitated or terminally ill.
(11)(12) Criminal Episode means the commission of one or more
criminal offenses ending with the imposition of a court sanction. Any offense
committed after a court sanction or pronouncement of disposition will be
considered a subsequent criminal episode and subject to aggregation.
(12) Department means the Florida Department of
Corrections.
(13) Early Termination of Parole means a Commission
Order of Discharge from the terms and conditions of parole prior to the
expiration date of parole as set forth on the Parole Certificate.
(14) Effective Parole Release Date (EPRD) means the
actual parole release date, when authorized by the Commission as set forth
in Section 947.1745 and Section 947.1746, F.S. The Commission’s
consideration for authorization of the EPRD is occasioned by the approach of
the PPRD, which determines the initial point in time the Commission considers
the requirements under Florida law that no person be placed on parole until and
unless the Commission can find that there is reasonable probability that, if
the inmate is placed on parole, he will live and conduct himself as a respectable
and law-abiding person, that his release will be compatible with his own
welfare and the welfare of society, and that he will either be suitably
employed in self-sustaining employment or will not become a public charge.
(15) Element of a Crime means that which was
specifically contained in the statutory definition of the crime on the date the
crime was committed.
(16) Escape is defined as it was found in the Florida
Statutes on the date the crime was committed.
(17) Exceptional Circumstances are those circumstances
which are out of the ordinary.
(18) Extend means to increase the presumptive parole
release date.
(19) Extraordinary Review means a further an
examination by the Commission of the entire record in an inmate’s case following
the Commission’s decision declining to determine whether to
authorize an Effective Parole Release Date.
(20) Final Revocation Hearing means a fact-finding
quasi-judicial hearing held by the Commission, a Commissioner, or the
Commission’s duly authorized representative for the purpose of
determining whether a parolee has violated the conditions of the parole and if
so, what recommendation should be made to the Commission.
(21) Good Cause means factors legally sufficient that
justify action taken and which are not arbitrary, capricious, irrational, or
unreasonable.
(22) Individual Particularity means case-specific,
factual material or references related only to the inmate concerned.
(23) Initial Date of Confinement in Execution of the
Judgment of the Court means the initial date of incarceration in the Department
of Corrections or in the instance of a county jail sentence, receipt at the
county jail.
(24) Inmate means any person under Florida Court
Commitment to incarceration in any state or federal correctional facility,
the Department or to a county jail for a cumulative sentence of 12 months or
more.
(25) Juvenile Sanction means a court-imposed
punishment on a minor for an act which, if committed by an adult, would have
been criminal.
(26) Matrix Time Range means the appropriate range of
months found where the offender’s salient factor score total intersects
with the offender’s severity of offense behavior.
(27) Meeting means an officially called Commission
meeting.
(28) Mitigate means to reduce below the matrix time
range’s lower month limit or below the previously established presumptive
parole release date.
(29) New Information means knowledge acquired
subsequent to the initial interview or the establishment of the presumptive
parole release date.
(30) Nullification of Parole means the Commission
action voiding the grant of parole when an inmate refuses to accept parole.
(31) PPRD means presumptive parole release date.
(32)(30) Parole means the release of an inmate, prior to the
expiration of the inmate’s sentence, with a period of supervision to be
successfully completed by compliance with the enumerated conditions and terms
of the release agreement as ordered by the Commission. The decision of the
Commission to parole an inmate shall represent an act of grace of the state and
shall not be considered a right.
(33)(31) Parolee means an inmate placed on parole.
(34)(32) Parole examiner, which is synonymous with hearing
examiner, means a Commission employee authorized to:
(a) Conduct an initial, subsequent biennial,
effective or special interview;
(b) Provide professional case analyses and
recommendations to the Commission;
(c) Conduct investigations for the Commission;
(d) Hold preliminary, bond, final revocation and
rescission hearings in order to make recommendations to the Commission;
(e) Perform other duties as assigned by the Chair.
(35)(33) Preliminary Hearing means an informal quasi-judicial,
hearing held after a parolee has been arrested, pursuant to a Commission warrant
to determine whether there is probable cause to believe that violations of the
conditions of parole have occurred.
(36)(34) Present Commitment means the total of court sentences
to incarceration, including expired individual sentence or sentences contained
therein, resulting from a single criminal offense or multiple offenses involved
in a single criminal episode. An offender may have more than one present
commitment for computation purposes. Further, Court sentences of sixty days or
more are considered as commitments to incarceration, including sentences to
time served as provided in subsection 23-21.007(2), F.A.C.
(37)(35) Present Offense of Conviction means the offense or
offenses resulting in conviction in a single criminal episode. At least one of
the convictions must result in a sentence to incarceration for sixty days or
more, including sentences to time served of sixty days or more.
(38)(36) Prior Criminal Record means an offense or offenses
which result in the imposition of a judicial sanction. Both the consummation of
the criminal offense(s) and the imposition of the judicial sanction(s) must
obtain at some date earlier in time than the offense(s) resulting in commitment
to incarceration for the present offense of conviction. For the purpose of
scoring in this category, prior offenses resulting in probation with
adjudication of guilt withheld will be counted.
(39)(37)
Probation means the release of a defendant for a period of supervision to be
successfully completed by compliance with the enumerated conditions and terms
of the release agreement as ordered by the trial court.
(40)(38) Quorum means a majority of the Commission that
when duly assembled is legally competent to transact business. the
following:
(a) Two Commissioners appointed by the Chair shall
constitute a quorum for the purposes of:
1. Setting presumptive parole release dates;
2. Reviewing presumptive parole release dates;
3. Determining unsatisfactory institutional conduct;
4. Reviewing terms and conditions of parole;
5. Approving, rejecting, returning for renegotiation
or cancelling Mutual Participation Program agreements;
6. Releasing inmates on compulsory conditional release
pursuant to Section 944.598, F.S.;
7. Rescinding and nullifying paroles and grants of
compulsory conditional release;
8. Ordering alleged parole and compulsory conditional
release violators returned for a final revocation hearing following a
preliminary hearing;
9. Ordering an alleged parole or compulsory
conditional release violator released from custody and restored or discharged
following a preliminary hearing;
10. Ordering a conditional releasee or control
releasee, charged with a violation, to be revoked and returned to custody or
released from custody and restored or discharged following a final revocation
hearing;
11. Reviewing warrant requests submitted by a single
Commissioner or Commission staff as provided in Rule 23-21.021, F.A.C.;
12. Granting or denying requests for early termination
from parole, control release, compulsory conditional release, and conditional
release supervision; and
13. Deleting special conditions of parole, control
release, compulsory conditional release, and conditional release supervision.
14. Direct an initial interview earlier than scheduled
except in cases where the inmate is serving a mandatory minimum term.
(b) A majority of the Commission shall constitute a
quorum for authorization and decisions relating to all full Commission reviews.
(41)(39) Recidivist Criminal Factor means four or more prior
adult felony convictions, from four or more separate criminal episodes, at
least two of which resulted in incarceration.
(42)(40) Rescission of Parole means the withdrawal of order
withdrawing an unexecuted grant order of parole.
(41) Record During Confinement Is Good means that within
the three months preceding the initial interview, an inmate has:
(a) Neither pending nor processed disciplinary actions
which may result in the loss of gain-time or placement in disciplinary
confinement. For the purpose of this section, pending means a formal
disciplinary report document has been created by the Department; and
(b) No pending court prosecutions in any Florida
court. For purposes of this section detainers are not to be considered a
pending court prosecution; and
(c) No reclassification actions raising custody
classification, transferring to a higher custody or level institution,
transferring to close management status; and
(d) No terminations of community work release for
cause; and
(e) No pending revocation proceedings or entries of a Commission
order revoking parole.
(42) Request for Review means a statement in writing
from an inmate or his representative for a quorum to review a decision as to
the initial establishment of that inmate’s presumptive parole release
date.
(43) Revocation of Parole means the order of the
Commission entered after a parolee has been found to have violated one or more
conditions of parole, and requires the parolee’s return to prison to
resume service of the sentence the order of the Commission entered after
a parolee has been found to have violated the conditions of his parole,
returning the inmate to custody.
(44) Salient Factors are the indices of the
offender’s present and prior criminal behavior and related factors found
by experience to be predictive in regard to parole outcome.
(45) Satisfactory Release Plan means a release plan
that meets all of the following requirements:
(a) A residence confirmed by field investigation to be
sufficient to meet the living needs of the individual seeking parole, or sufficient
financial resources or assistance to secure adequate living accommodations with
the approval of the parole supervisor.
(b) Self-sustaining employment or financial support
sufficient to preclude the parolee from becoming a public charge which has been
confirmed by field investigation.
(c) Both paragraphs (a) and (b) available in a
community that does not represent individual, collective, or official
resentment or hostility to an extent that it impairs the opportunity for lawful
and peaceful existence of the parolee or any individual within that community.
(d) If the individual seeking parole is a convicted
sexual offender, the proposed residence and employment must not pose an undue
risk to children under the age of eighteen.
(e) The occupants of the proposed residence must not
pose an undue risk to the inmate’s ability to reintegrate into society.
(f) The proposed residence must not contain any
firearms.
(46) Severity of Offense Behavior means the
statutorily assigned degree of felony or misdemeanor for the present offense of
conviction.
(47) Subpoena (Subpoena Duces Tecum) means a document
signed by a member of the Commission or an authorized Commission representative
which compels the attendance of a person at Commission proceedings and may
require the person so compelled to bring with him designated items as specified
on the document.
(48) Unsatisfactory Institutional Conduct includes
behavior which:
(a) Results in pending or processed disciplinary
actions which may result in the loss of gain-time or placement in disciplinary
confinement (for the purposes of this subsection, pending means a formal
disciplinary report document has been created by the Department; processed
means that a written decision has been rendered at the institution);
(b) Results in a pending or completed court
prosecution;
(c) Results in a reclassification action (raising
custody classification, transferring to a higher custody or level institution,
or transferring to close management status);
(d) Results in the Commission finding that there is
competent and persuasive evidence in the form of an admission against interest
by the inmate;
(e) Results in the Commission determining through
competent and persuasive independent knowledge of an action pending either in
court or in the Department’s disciplinary hearing process.
(49) Vacate means to set aside a previously
established date or order.
(50) Warrant means a document executed by a member of
the Commission which will cause the incarceration of a parolee or releasee
pending final action by the Commission.
(51) Work Release means the Department of
Correction’s Community Work Release program.
(52) Workshop means a conference held by the
Commission for the purpose of meeting to determine the means by which
policy-making decisions and projects shall be implemented.
Specific
Authority 947.07, 947.149, 947.174(5)(b) FS. Law Implemented
947.1745 FS. History–New
23-21.003 Commission Organization.
Specific
Authority 120.53, 947.07, 947.135 FS. Law Implemented 947.01, 947.04, 947.06,
947.135, 947.165, 947.22, 947.23 FS. History–New
23-21.004 Commission Meetings.
(1) All Commission meetings are open to the public.
However, due to the nature of the various proceedings, the following procedures
are followed relative to persons wishing to address the Commission. Persons
requesting permission to speak concerning the setting or reviewing of an
inmate’s presumptive or effective parole release date, parole
supervision review, or conditional medical release consideration date
must obtain prior written approval to do so from the Chair. Those request(s)
should be sent to:
Chair
Florida Parole Commission
2601 Blair Stone Road, Building C
1309 Winewood Blvd., Bldg. B
ATTN: Request to Appear
(2) When, as a result of a visitor presentation, a panel
of Commissioners requests additional information be secured and returned to the
Commission for review, upon receipt, the new information shall be placed on the
docket for consideration by the panel of Commissioners which requested it.
(3) No testimony is entertained at Commission
meetings regarding revocations unless stipulated on the record at the time the
final revocation hearing is conducted and with the prior written approval of
the Chair. Persons
requesting permission to speak to the Commission at a parole revocation hearing
must obtain prior written approval of the Chair to the above address and shall
then be subject to the subpoena power of the Commission. Because the parolee
may not be present at the Commission headquarters in Tallahassee, no testimony
is entertained at those meetings unless stipulated on the record at the time of
the conduct of the final revocation hearing. The public is welcome to
attend and observe the meetings.
(4) Persons requesting permission to speak to the
Commission at a Parole Rescission Hearing must obtain prior written approval of
the Chair at the above address and shall then be subject to the subpoena power
of the Commission. In that Because
the inmate may not be present at the Commission meetings headquarters
in Tallahasseeof the
conduct of the rescission hearing and with the prior written approval of
the Chair. The public is welcome to attend and observe the meetings.
Specific
Authority 947.07 FS. Law Implemented 947.172, 947.174, 947.16, 947.173, 947.149
FS. History–New
23-21.0051 Full Commission Reviews.
The
Commission, consisting of three Commissioners, appointed by the Chair, shall
vote the following types of cases:
(1) Extraordinary Review cases shall automatically be
placed on the docket by staff for full Commission review;
(2) In any case where a panel agrees to set or reduce
a Presumptive Parole Release Date or Mutual Participation Program parole
release date which would place or continue to place that date within the period
of retained jurisdiction by a court, the case shall be referred to the full
Commission for consideration of that action;
(3) Upon receipt of significant information impacting
on parole decision-making, a single Commissioner can have a case placed on the
docket for a full Commission vote;
(4) A panel of Commissioners is authorized to refer a
case originally placed on the docket for its consideration to the full
Commission. Should a panel split in their vote to refer a case to the full
Commission, the Chair will cast the deciding vote. If the Chair agrees that the
case should be referred to the full Commission, the member of the panel who
voted to refer will be responsible for preparing the memorandum;
(5) When a panel is unable to agree and the case is
referred to the Chair, the Chair shall either concur with one of the voting
panel members or refer the case to the full Commission;
(6) Whenever a panel of Commissioners reviews a case
which is on a docket for consideration and the panel determines that new
information has been gathered which suggests modification of the established
presumptive parole release date in excess of sixty (60) months, the panel shall
make its recommendation for such modification and refer the case to the full
Commission. The panel’s recommendation regarding the new information
shall include a statement of the specific reason for its recommendation;
(7) In any case where a panel agrees to set or modify a
Mutual Participation Program parole release date an MPP Date sixty
(60) months or more, below the established PPRD, the panel shall make its
recommendation for such modification and refer the case to the full Commission
for decision;
(8) Cases for which notice has been provided to the
sentencing court, under the provision of Section 947.1745(4), F.S., and for
which the court has submitted a written objection to parole release, shall
be placed on the docket for the full Commission;
(9) All parole and conditional medical release
violation revocation cases following final hearing shall be
placed on the docket for full Commission review;
(10) All effective and extraordinary interviews
shall be placed on the docket for full Commission review;
(11) Decisions on granting conditional medical
release.
(12) Reports of improved medical condition or requests
to modify a condition in a Conditional Medical Release case;
(13) Reviewing terms and conditions for Conditional
Medical Release cases;
(14) Setting presumptive parole release dates for
capital felony offenders whose sentence includes a 25-year mandatory minimum
term.
(15) Reviewing presumptive parole release dates for
capital felony offenders whose sentence includes a 25-year mandatory minimum
term.
(16) Directing an early initial parole interview,
except in cases where the inmate is serving a mandatory minimum term;
(17) Parole cases in which the Department of Corrections
is making a recommendation, separately from any other scheduled action;
(18) Cases in which the presumptive parole release
date is within the retained jurisdiction period of the court;
(19) Rescinding or nullifying a parole granted by the
Commission;
(20) Reviewing the term and conditions of parole as
outlined in Rule 23-21.017, F.A.C.
(21) When the Commission cannot reach a majority vote,
the action of the Commission is no action.
Specific
Authority 947.07, 947.20 FS. Law Implemented 947.06, 947.07, 947.149,
947.173, 947.18, 947.20 FS. History–New
23-21.0052 Panel Reviews.
A
panel consisting of two Commissioners, appointed by the Chair, shall vote the
following types of cases:
(1) Establishing presumptive parole release dates,
unless the sentence includes a 25-year mandatory minimum term.
(2) Inmate initiated reviews of presumptive parole
release date, unless the sentence includes a 25-year mandatory minimum term.
(3) Reviewing subsequent parole interviews for possible
modification of presumptive parole release dates;
(4) Determining unsatisfactory institutional conduct
for establishing eligibility for the setting of presumptive parole release
dates;
(5) Reviewing the term and conditions of parole,
control release, conditional release and addiction recovery supervision cases;
(6) Approving, rejecting, returning for renegotiation
or canceling Mutual Participation Program agreements;
(7) Ordering an alleged parole violator returned for a
final hearing following a preliminary hearing;
(8) Ordering an alleged parole violator released from
custody or discharged following a preliminary hearing;
(9) Ordering a conditional releasee, addiction
recovery releasee or control releasee, charged with a violation, to be revoked
and returned to custody or released from custody and restored to or discharged
from supervision following a final revocation hearing;
(10) Reviewing warrant requests submitted by a single
Commissioner as provided in Rule 23-21.021, F.A.C.;
(11) Establishing, extending, advancing or vacating
control release dates;
(12) Granting or denying requests for early
termination from parole, control release, addiction recovery and conditional
release supervision;
(13) Modifying or deleting special conditions of parole,
control release, addiction recovery and conditional release supervision;
(14) Ordering release on recognizance (ROR) following
a hearing;
(15) Establishing the term and conditions for control
releasees, conditional releasees and addiction recovery releasees; and
(16) Referring a case for a Full Commission review,
with good cause.
Specific
Authority 947.07, 947.20 FS. Law
Implemented 947.06, 947.13, 947.135, 947.1405, 947.141, 947.146, 947.149,
947.172, 947.173, 947.174, 947.1745, 947.1746, 947.18, 947.19, 947.20, 947.23,
947.24 FS. History–New ________.
23-21.006 Initial Interview Procedure.
(1) Upon receipt of notice that an inmate has been
committed to the Department or to a county jail for a parole eligible
cumulative sentence of 12 months or more, the Commission Director of
Parole Grant shall schedule an initial interview for the inmate. Inmates
shall be eligible for parole consideration on all sentences which were not
imposed pursuant to Sentencing Guidelines. An inmate currently serving a sentence
imposed pursuant to Sentencing Guidelines shall not be eligible for parole
consideration upon a consecutive non-guidelines sentence until service of the
latter sentence has begun. The following criteria shall be used in determining
parole eligibility:
(a) Is the inmate confined solely as a result of a
sentence or sentences imposed under Sentencing Guidelines? If the answer is
yes, the inmate is not eligible for parole consideration. If the answer is no,
then:
(b) Where the inmate is confined as a result of
multiple sentences, at least one of which is a sentence imposed under
Sentencing Guidelines, whether concurrent or consecutive, the inmate shall be
eligible for parole consideration, and can be paroled to the incarceration
portion of the sentence(s) imposed under Sentencing Guidelines.
(2) Inmates received into the custody of the
Department of Corrections with sentences imposed under Sentencing Guidelines
will be identified by the Department. Staff located in the Commission’s
central office will then make parole eligibility determinations and assign
parole interview dates.
(a) The initial parole interview date for a person
whose parole is revoked shall be set by the Commission within six months of the
revocation.
(b) The initial parole interview date for a parole
violator returned to the Department’s custody with any new sentence(s)
not imposed under Sentencing Guidelines shall be assigned by staff according to
current interview scheduling procedures set forth in subsection (3) herein.
(c) In the event an inmate is scheduled for an initial
or subsequent biennial (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 in four (4) months.
(d) If the inmate exits the system while still under
the service of an active commitment and is returned to the Department’s
custody with a new sentence(s), the following action will be taken by the
examiner at the time of interview:
1. New sentence(s) imposed solely under Sentencing
Guidelines. If no PPRD was established prior to the inmate exiting the system,
the inmate shall be afforded an initial interview at the next regularly
scheduled interview date. In establishing a recommended PPRD, the
sentence(s), including sentences to time served of 60 days or more, imposed
under Sentencing Guidelines shall not be scored, but may be treated as
information for possible use as aggravation. If a PPRD was established prior to
the inmate exiting the system, the existing PPRD shall be vacated and an
initial interview shall be provided herein.
2. New sentences imposed, one of which is a sentence
imposed under Sentencing Guidelines. If no PPRD was established prior to the
inmate exiting the system, the inmate shall be afforded an initial interview at
the next regularly scheduled interview date. In calculating a recommended
PPRD, the examiner shall apply current rules of aggregation on sentences that
are not imposed under Sentencing Guidelines. Sentences of 60 days or more,
including sentences of time served, imposed under Sentencing Guidelines qualify
as information for use as possible aggravation. If a PPRD was established prior
to the inmate exiting the system, the existing PPRD shall be vacated and an
initial interview shall be provided herein.
(3) Parole revocation with a new felony or misdemeanor
conviction: Inmates whose parole is revoked after conviction for a new felony
or misdemeanor offense, and who are committed to a jail, stockade or
correctional institution will be considered under these guidelines as a new
admission and the Commission can use concurrent new commitments as aggravation
or aggregation in the establishment of a presumptive parole release date. If
the inmate is found to be eligible for consideration for parole on the ensuing
sentence(s) the Commission shall aggregate. Further, the Commission shall
aggravate or aggregate each consecutive sentence.
(4) Conviction for crimes committed while
incarcerated: Escape or any other crime committed during incarceration with an
ensuing conviction and sentence vacates any previously established presumptive
parole release date and shall cause the inmate to be considered a new
admission. If the inmate is found to be eligible for consideration for parole
on the ensuing sentence(s) the Commission shall aggregate. If the
inmate’s ensuing sentence(s) are not parole eligible, the Commission can
use these new commitments as aggravation in the establishment of a new
presumptive parole release date.
(5)(3) Initial interviews for parole eligible inmates shall
be scheduled as follows:
(a) For inmates convicted on or before April 19, 1982,
in order to meet statutory time frames, inmates serving an indeterminate
sentence or a sentence of 5 years or less shall be scheduled for initial
interview not later than the end of the 5th month from the initial date of
confinement in execution of the judgment of the Court and inmates serving
sentences in excess of 5 years shall be scheduled for initial interview not
later than the end of the 10th month from the initial date of confinement in
execution of the judgment of the Court. Any inmate may freely and voluntarily
waive in writing before a parole examiner or Department’s classification
officer the initial interview.
(b) For inmates convicted on
or after April 20, 1982, the following schedule shall apply:
1. Inmates sentenced to an
indeterminate term or a term of 3 or less years or who have been sentenced
under the provisions of the Youthful Offender Act or are determined to be
youthful offenders by the Department shall have their initial interview
scheduled within 7 months of the initial date of confinement in execution of
the judgment of the Court.
2. Inmates sentenced to a
term in excess of 3 years but not more than 6 years shall have their initial
interview scheduled within 13 months of the initial date of confinement in
execution of the judgment of the Court.
3. Inmates sentenced to a
term in excess of 6 years but other than a life term shall have their initial
interview scheduled within 23 months after the initial date of confinement in
execution of the judgment of the Court.
4. Inmates sentenced for a
term of life shall have their initial interview scheduled within 59 months
after the initial date of confinement in execution of the judgment of the
Court.
5. Inmates sentenced to
serve a mandatory minimum sentence shall be scheduled for an initial interview
from the initial date of confinement in execution of the judgment of the Court
as follows:
a. Inmates serving a minimum
mandatory term of 7 years or less shall be scheduled for an initial interview
within 6 months of the expiration of the mandatory portion of the term;
b. Inmates serving a minimum
mandatory term in excess of 7 years but less than 15 years shall be scheduled
for an initial interview within 12 months of the expiration of the mandatory
portion of the term;
c. Inmates serving a minimum
mandatory term of 15 years or more shall be scheduled for an initial interview
within 18 months of the expiration of the mandatory portion of the term.
6. Inmates designated
mentally disordered sex offenders shall be scheduled for an initial interview
within 90 days of receiving written notification from the Department of the
need for such interview and that all investigative reports deemed necessary by
the Commission are available for examination in the inmate’s file.
7. Any inmate who is
adjudicated incompetent pursuant to statutes shall be scheduled for an initial
interview within 90 days of the date the Commission receives written notice
from the Court that mental competency has been restored.
8. Inmates serving sentences imposed by a court of
this state in a facility outside the confines of this state shall not be
scheduled for any interview but, when the Chair is made aware of that
situation, he shall cause a parole examiner to request the summary of
information from the inmate’s file from the other jurisdiction for the
purpose of recommending a presumptive or effective parole release date and the
Commission shall establish the dates based on the written recommendation and
pertinent file information. The Commission, at its discretion, may react to
supplemental written information on any inmate serving a sentence in another
jurisdiction with regard to mitigating or extending an established presumptive
parole release date or may concur with the parole release decision of the
jurisdiction granting parole and accepting supervision.
8.9. The Commission may, by a vote of a quorum, request an
initial interview earlier than scheduled except in cases where the inmate is
serving a minimum mandatory term.
(6)(4) Postponement or deferral of initial interview, for
inmates convicted on or after April 20, 1982.
(a) A regularly scheduled initial interview may be
postponed for a period not to exceed 90 days for good cause which shall include
but not be limited to securing from the Department a copy of the inmate’s
presentence or postsentence investigation report, a parole or probation
violation report or whatever other information is deemed necessary to conduct
the initial interview. The reasons for postponement shall be noted in writing,
included in the offender’s institution file and forwarded to the Commission
Headquarters for subsequent rescheduling and to be included in the
Department’s central office offender’s file.
(b) A regularly scheduled initial interview may be
deferred as follows:
1. Inmates who are out to court when the initial
interview is scheduled. Upon notification by the Department that the inmate has
been returned from Court without a new commitment, the initial interview shall
be conducted no later than 90 days from the date of receipt of the written
notification of return. Inmates who have received a new commitment shall be
scheduled for an initial interview pursuant to these rules.
2. Initial interviews for inmates who are confined in
any appropriate treatment facility by virtue of transfer by the Department may
be deferred and shall result in the rescheduling of the initial interview no
later than 90 days after receipt of written notice from the Department that the
inmate has been returned to their custody. Inmates designated Mentally
Disordered Sex Offenders are not included in this deferral procedure.
(7)(5) Inmates convicted of capital crimes on or before
April 19, 1982, shall be interviewed as follows:
(a) Inmates serving life sentences for capital crimes
with twenty-five years minimum mandatory sentences will be interviewed
within the last eighteen months before the expiration of the mandatory portion
of the sentence. To calculate
the interview date, begin with the most recent date of sentence for the capital
felony, add twenty-five years representing the mandatory portion of the
sentence, subtract the jail credit awarded by the court, add in any out time
for post-conviction bond or escape and then subtract 18 months. The inmate will
not be interviewed before the resulting date.
(b) Inmates serving sentences for capital crimes who
do not have minimum mandatory sentences will be interviewed within one year of
receipt by the Department or when they may be statutorily eligible for parole
consideration.
(c) Inmates under death sentences will not be
interviewed nor considered for parole.
(8)(6) Inmates convicted of capital crimes on or after April
20, 1982, shall be scheduled for an initial interview as provided in these
rules.
(9)(7) The initial interview shall be in two parts. In Part
I, the parole examiner shall determine whether the inmate is eligible for
consideration for parole. The determination shall be based upon the following
matters:
(a) Is the inmate confined in execution of the
judgment and sentence of the court; that is, is there a judgment and sentence
in the inmate’s Department file which indicates a sentence of twelve
months or more or which indicates an indeterminate sentence? If the answer is
no, then the parole examiner shall postpone the interview for sixty days and
notify the Commission Director of Parole Grant by telephone and within
twenty-four hours by mail the reason for postponement. If the answer is
yes, then,
(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 not be ineligible for parole to the
incarceration portion of his probation on that account.
(c) Is the inmate’s record during confinement
good? If the answer is no, then the interview is at an end. The recommendation
of the parole examiner shall be to reschedule the initial interview within six
months; if the answer is yes, then, proceed with part II of the initial
interview as set forth in subsection 23-21.006(8), F.A.C. Record during confinement
is good means that within the three months preceding the initial interview, an
inmate has:
1. Neither pending nor processed disciplinary actions
which may result in the loss of gain-time or placement in disciplinary
confinement. For the purpose of this section, pending means a formal
disciplinary report document has been created by the Department; and
2. No pending court prosecutions in any Florida court.
For purposes of this section, detainers that are not being actively pursued are
not to be considered a pending court prosecution; and
3. No reclassification actions raising custody
classification, transferring to a higher custody or level institution,
transferring to close management status; and
4. No terminations of community work release for cause;
and
5. No pending revocation proceedings or entries of a
Commission order revoking parole.
(10)(8) Part II of the initial interview. The parole examiner
shall explain to the inmate the scoring of the inmate’s salient factor score
and the severity of his offense behavior. The parole examiner shall discuss the
inmate’s individualized institutional conduct record and explain the
requirements of a satisfactory release plan for parole supervision and how
those factors can impact on his parole release. The parole examiner will record
any direct input offered by the Department’s representative, if present
during the interview. The parole examiner shall discuss any aggravating or
mitigating factors with the inmate. The parole examiner shall explain the
calculation of time in custody. At the close of the interview, the inmate shall
be orally informed of the examiner’s final recommendation and that only a
quorum may establish his or her presumptive parole release date. The inmate
shall be requested to sign a statement which is an acknowledgment that the
inmate was present during the initial interview and was verbally advised of the
recommendation in his case.
(11)(9) The parole examiner shall reduce the oral
recommendation for parole, salient factor score, severity of offense behavior,
aggravation, mitigation, time in custody calculation and the recommended
presumptive parole release date to writing and, within 10 days of the initial
interview, forward those written recommendations to the Commission’s
headquarters.
(12) Inmates serving parole-eligible sentences imposed
by a court of this state in a facility outside the confines of this state shall
not be scheduled for an in-person initial interview with a Florida parole
examiner, but are entitled to establishment of a presumptive parole release
date in accordance with the same time frames provided for inmates confined in
Florida.
(a) If the inmate was sentenced in Florida, but was
transferred to another state before entering the custody of the Department of
Corrections, the Commission will not be aware of the parole eligible sentence
unless the inmate or another individual or entity notifies the Commission. Upon
such notification, the Commission shall obtain the commitment package from the sentencing
court in Florida and begin the parole review process. Inmates who are received
into the custody of the Florida Department of Corrections and later transferred
to another state will have had a Commission review of parole eligibility upon
their commitment in Florida.
(b) At the time the out-of-state inmate would have
been scheduled for an initial interview if confined in Florida, the parole
examiner will request a summary of information from the inmate’s file
from the other jurisdiction. The examiner will review the inmate’s
commitment papers and institutional progress. If the examiner determines that
the inmate is presently eligible for consideration for parole, the examiner
will record recommendations for the inmate’s salient factor score,
severity of offense behavior, and any aggravating/ mitigating factors. The
parole examiner’s recommendation will be forwarded to the case manager of
the prison where the inmate is incarcerated with a request that the inmate be
called out and allowed to review the parole examiner’s recommendation.
The inmate should be asked to sign an acknowledgment of the interview and give
an input statement for consideration by the Commission. If questions arise
about the formulation of the PPRD, the case manager is encouraged to contact
the examiner directly. If prison regulations permit, the parole examiner may
choose to discuss the PPRD recommendation directly with the inmate by
telephone. The parole examiner must telephonically notify any inmate convicted
on or before April 19, 1982, of the PPRD recommendation. Within 10 days of the
parole examiner receiving the acknowledgment of interview signed by the inmate
or witnessed by the case manager, the parole examiner will forward the
recommendation along with acknowledgment of interview and any input statement
to the Commission’s headquarters.
(13)(10) Upon receipt of the parole examiner’s
recommendations, the Chairman or designee shall assign them to a quorum
for decision making.
(14)(11) Within ninety days of the initial interview, the
quorum shall reach a decision and notify the inmate of each recommendation made
by a parole examiner and shall, based upon competent and persuasive evidence,
determine whether the inmate is eligible for consideration for parole.
(a) If the parole examiner’s recommendation was
that the inmate was not eligible for consideration for parole, and, as a
result, the parole examiner did not forward a written recommendation for a
presumptive parole release date, the quorum may remand the matter to the parole
examiner for immediate consummation of the initial interview and written
recommendation for a presumptive parole release date.
(b) If the parole examiner’s recommendation was
that the inmate was eligible for consideration for parole and the parole
examiner forwarded a written recommendation for a presumptive parole release
date, the quorum shall:
1. Either establish a presumptive parole release date
and inform the inmate in writing of its decision regarding the salient factor
score, severity of offense behavior, aggravating or mitigating factors with
individual particularity, calculation of time, and the established presumptive
parole release date; or,
2. Determine that the inmate is not eligible for
consideration for parole, and inform the inmate in writing as to the reasons
for ineligibility and reschedule an initial interview for the inmate at an
appropriate time.
(15) Presumptive Parole Release Date exceeds
expiration of sentence: Pursuant to these rules, the Commission shall establish
a presumptive parole release date for inmates found to be eligible for parole
consideration. If the established presumptive parole release date exceeds the
expiration of sentence date, that date shall not incarcerate the inmate past
the expiration of his sentence.
Specific
Authority 947.07 FS. Law Implemented 947.002, 947.16, 947.165, 947.172
FS. History–New
23-21.007 Salient Factor Scoring.
Salient
factors (1) through (6) shall be calculated on the inmate’s criminal
record.
(1) NUMBER OF PRIOR CRIMINAL CONVICTIONS:
(a) Juvenile offenses, juvenile incarcerations, and
misdemeanor convictions do not constitute criteria to be used in determining
Recidivist Criminal Factor. Further, individual felony convictions within a
single criminal episode result in the entire criminal episode being considered
one prior felony conviction when computing the Recidivist Criminal Factor.
Inmates who meet the criteria of the Recidivist Criminal Factor shall not be
scored on the remaining six factors as the inmate automatically falls within
the Recidivist Criminal Factor time ranges on the matrix. Once an inmate is
found to meet the criteria to be scored in the Recidivist Criminal Factor time
ranges, all rescoring on subsequent incarcerations must also fall in the
Recidivist Criminal Factor time ranges.
(b) For purposes of scoring this item, do not count
vagrancy, loitering, disorderly conduct, disturbing the peace, public
drunkenness, disorderly intoxication, violations of local ordinances
which would not constitute violations of State Law and noncriminal traffic
infractions as prior criminal record. Convictions for prowling, trespassing, criminal
mischief, malicious mischief, criminal contempt of court and failure to
appear, shall be counted. Serious vehicular convictions which shall include but
not be limited to driving while intoxicated or hit and run, shall be counted as
prior criminal record.
(c) Count all prior juvenile sanctions which would
have been criminal if committed by an adult. Do not count "status
offenses," for example runaway, truancy, habitual disobedience, as prior
criminal record. This does not, however, preclude a Hearing Examiner nor a
quorum from considering such behavior as a negative indicant of parole
prognosis.
(d) Count all prior military criminal convictions
which would have been subject to civilian criminal law. Do not count military
convictions for strictly military type offenses. However, this does not
preclude considering serious misconduct as a negative indicant of parole
prognosis.
(e) Count all pleas of guilty, pleas of nolo
contendere or convictions which result from criminal offenses committed while
on bail or probation for the present offense of conviction. Conduct resulting
in diversion from the judicial process without a plea of guilty or a plea of
nolo contendere or a specific finding of guilt, deferred prosecution, pretrial
intervention, probation without plea, is not counted in scoring this item.
(f) Do not count the present state conviction or
conviction resulting from the present offense behavior as a prior criminal
record.
(g) Do not count offenses when adjudication is
withheld, unless a sanction is imposed.
(h)(g) Setting aside or removal of juvenile or youth
convictions or adjudications is normally for civil purposes. Such convictions
or adjudications are to be counted as prior criminal record when assessing
parole risk. Adult convictions which were set aside or pardoned on grounds of
innocence are not to be counted. Convictions which were reversed on appeal or
via post-conviction relief are not to be counted unless a retrial resulted in
conviction or convictions.
(i)(h) If an inmate has maintained a conviction-free record
in the community and has not been incarcerated or under court ordered or post
release supervision for a period of ten consecutive years, the criminal record
prior to the ten-year period shall not be counted for any salient factor. This
shall not prevent consideration of such behavior as a negative indicant of
parole prognosis. A substantial conviction-free period in the community not
amounting to ten years may be considered as a positive indicant of parole
prognosis.
(2) NUMBER OF PRIOR INCARCERATIONS:
Recidivist Criminal Factor as defined = RCF
Three or more prior convictions = 2 Points
One or Two prior convictions = 1 Point
No prior convictions = 0 Points
Two or more prior incarcerations = 2 Points
One prior incarceration = 1 Point
No prior incarceration = 0 Points
(a) For purposes of this item, count only imposed
incarcerations of sixty days or more.
(b) Count all prior incarcerations, including
commitments and placements in residential juvenile facilities resulting from a
sentence imposed for a conviction.
(c) Count only incarcerations that were actually
imposed; do not count confinement pending trial or adjudication as an
incarceration unless the sentence was specifically to "time served."
Concurrent or consecutive sentences for offenses in the same criminal episode
are to be counted as a single incarceration.
(d) Count only incarcerations which were imposed and
served prior to the receipt by commitment for the present offense of
conviction. Incarcerations which were imposed after the commission of the
present offense of conviction are not counted for purposes of this item; unless
the incarceration resulted from a criminal offense committed while on bail or
probation for the present offense of conviction. This does not preclude
considering the commission of additional offenses as a negative indicant of
parole prognosis.
(e) Incarcerations resulting from convictions which
were set aside or pardoned on grounds of innocence are not to be counted nor
are incarcerations imposed as a condition of probation.
(3) TOTAL TIME SERVED IN YEARS:
Two or more years served = 2 Points
Up to two years served = 1 Point
No time previously served = 0 Points
(a) Count all time imposed for all prior
incarcerations for 60 days or more. Months or days should be aggregated to form
years or fractions thereof.
(b) Score 2 if the total time served for all prior
incarcerations is 2.0 years or longer.
(c) Score 1 if the total time served for all prior
incarcerations is less than 2.0 years but more than 60 days.
(d) Score 0 if there are no prior incarcerations.
(e) Do not count time served on a conviction which was
later set aside or pardoned on grounds of innocence or was an incarceration
imposed as a condition of probation.
(4) AGE AT OFFENSE WHICH LED TO THE FIRST
INCARCERATION:
17 Years or younger = 2 Points
18 – 25 Years = 1 Point
26 Years or older = 0 Points
(a) Score 2 points if the inmate was less than 18
years of age at the time of the offense which led to the inmate’s first
incarceration.
(b) Score 1 point if the inmate was 18 through 25
years old at the time of the offense which led to the inmate’s first
incarceration.
(c) Score 0 points if the inmate was 26 years old or
older at the time of the offense which led to the inmate’s first
incarceration.
(d) For purposes of this item, count only commitments in
which the sentence imposed was for 60 days or more.
(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.
(f) Do not consider age at time of commission of any
offense for which conviction was later set aside or pardoned on grounds of
innocence when computing this factor.
(5) NUMBER OF PROBATION, PAROLE OR MCR REVOCATIONS:
One or more revocations = 1 Point
No revocation = 0 Points
(a) For purposes of this item, "parole"
includes mandatory conditional release (MCR), conditional release, control
release, conditional medical release, addiction recovery supervision,
and compulsory conditional release (CCR).
(b) Score 1 if the inmate has ever had parole revoked
or if the inmate has ever had an adult probation revoked. However, do not count
probation revocations which do not result in a sentence to incarceration for
the offense for which probation was being served.
(c) Score 0 if the inmate has never had parole or
probation revoked; if the inmate has only had juvenile probation revoked; or if
the inmate’s only adult probation revocation did not result in a sentence
to incarceration.
(d) Do not consider any parole revocation on a
conviction which was later set aside or pardoned on grounds of innocence.
(e) More than one revocation of probation, parole, CCR
or MCR shall be considered as a negative indicant of parole prognosis, and may
be used as an aggravating factor.
(6) NUMBER OF PRIOR ESCAPE CONVICTIONS:
One or more prior escape conviction(s) = 1 Point
No prior escape conviction = 0 Points
(a) Score 1 if the inmate has ever been convicted of
escape prior to the present offense of conviction.
(b) Score 0 if the inmate has no prior escape
conviction.
(7) BURGLARY OR BREAKING AND ENTERING AS THE PRESENT
OFFENSE OF CONVICTION:
Present Offense of Conviction includes a conviction
for burglary or breaking and entering = 1 point
Otherwise = 0 Points
(a) Score 1 if the present offense of conviction for
which the inmate has been convicted includes burglary or breaking and entering,
whether or not a sentence to incarceration was imposed. Such conviction
shall not form the basis for a decision outside the matrix time range.
(b) Score 0 if the present offense of conviction is
not 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) More than one conviction for burglary or breaking
and entering may be considered as the basis for a decision outside the matrix
time range as a negative indicant of
parole prognosis.
(d) Do not score 1 point if the conviction of burglary
or breaking and entering is a consecutive sentence. Such consecutive sentence
shall be considered a negative indicant of parole prognosis and the basis for a
decision outside of the matrix time range.
Specific
Authority 947.07, 947.165 FS. Law Implemented 947.002, 947.13, 947.165 FS. History–New
23-21.008 Severity of Offense Behavior.
The severity
of offense behavior shall reflect the present offense of conviction’s
degree of felony or misdemeanor. If the present offense of conviction involved
multiple separate offenses, the severity of offense behavior shall be
established for the most serious of the separate offenses which resulted in a
sentence to incarceration or in a sentence to 60 days or more when aggregation
is utilized, including sentences of 60 days or more to time served. The other
offenses may can be used as aggravating factors whether those
commitments are active or expired. This shall be applied to both offenses that
led to either consecutive or concurrent sentences and convictions resulting in
sentence disposition other than to incarceration. If the actual offense
behavior was more or less severe than the present offense of conviction, a
decision outside the matrix time range may be considered.
Specific
Authority 947.07, 947.165 FS. Law Implemented 947.002, 947.165 FS. History–New
23-21.010 Decisions Outside the
(1) The Commission may render a decision outside the
matrix time range based on any competent and persuasive evidence relevant to
aggravating or mitigating circumstances if the inmate is furnished a written
explanation of such a decision. The requirements of competent and persuasive
evidence are:
(a) That the information is specific as to the
behavior alleged to have taken place, and
(b) The source of the allegation appears to be
reliable.
(2) Information (for example information supporting a
count of an indictment that was dismissed as a result of a plea agreement) may
be relied upon as aggravating or mitigating circumstances provided it meets the
competent and persuasive criteria. However, the following aggravating factors
shall not be used:
(a) Any element of the crime;
(b) Information included in calculating the salient
factor score;
(c) Information included in the severity of offense
behavior; or
(d) Charges for which a person was acquitted after
trial.
(3) The Commission shall use as an aggravating factor
all existing consecutive sentences, including parole ineligible sentences. In
so doing, a specific number of months shall be assessed for each consecutive
sentence(s), even if one of such sentences is for the most serious offense as
defined in these rules.
(4) The parole examiner must state in writing with
individual particularity why the specific aggravation or mitigation factor(s)
was recommended. This does not mean that those are the only situations in which
a recommendation of aggravation or mitigation may be considered by a parole
examiner, nor does it mean that a recommendation of aggravation or mitigation
is mandated for every such case. The Commission’s adoption of a parole
examiner’s recommendation without change adopts the parole
examiner’s explanation of aggravation or mitigation. Additionally, the
Commission is free to consider and apply aggravation or mitigation regardless
of whether the parole examiner’s recommendation included the same and the
Commission is free to disregard any recommendation by the parole examiner and
independently recompute the Salient Factor Score, Severity of Offense Behavior
and apply any aggravation or mitigation deemed necessary as long as the inmate
receives in writing an explanation of such decision with individual
particularity.
(5) Following are examples of situations in which a
parole examiner or the quorum may wish to consider a recommendation of
aggravation or mitigation. However, these are only examples and the Commission
is not limited to only these examples as long as a written explanation of the
factor is provided to the inmate:
(a) Aggravation – Decisions above the matrix
time range:
1. Reasons related to aggravation of the severity of
offense behavior can include:
a. The offense involved the use of a firearm or
dangerous weapon;
b. The offense resulted in great bodily injury or
pecuniary loss;
c. The offense involved multiple victims or knowingly
created a great risk of bodily injury or death to many people;
d. The offense involved exceptionally brutal or
heinous behavior indicative of wanton cruelty;
e. The offense was part of a large-scale organized
scheme of criminal conspiracy;
f. The offense was committed against a victim known to
be particularly vulnerable, such as elderly persons, physically or mentally
handicapped persons, children;
g. The offense was committed in an unusually
sophisticated manner;
h. Any additional offenses; The offense
involved multiple separate offenses;
i. The inmate committed an offense while holding
public office and the offense was related to his conduct in office;
j. The inmate committed an offense using his
professional reputation or position in the community to effectuate the offense
or to afford him an easier means of perpetrating it;
k. The inmate committed an offense for the purpose of
avoiding or preventing a lawful arrest or effecting an escape;
2. Reasons related to likelihood of favorable parole outcome,
negative indicants of parole prognosis can include:
a. The offense was committed while on bond, after bond
was entreated or on release on recognizance;
b. The inmate has a history of alcohol or narcotics
abuse;
c. The inmate has a history of assaultive or violent
behavior;
d. The inmate has failed or refused to make
restitution when he was able to do so;
(b) Mitigation – Decisions below the matrix time
range:
1. Reasons related to mitigation of severity of
offense behavior can include:
a. The crime neither caused nor threatened serious
harm to persons nor property, or the inmate did not contemplate it would do so;
b. The inmate committing the crime was of such a young
age as to diminish his capacity to fully understand the seriousness of his
action and its direct consequences;
c. The victim of the crime induced or facilitated the
offense;
d. There is substantial evidence tending to excuse or
justify the crime, though failing to establish a defense;
e. The inmate acted under strong provocation or duress;
f. The inmate had only a peripheral role in the crime;
g. The inmate had diminished mental capacity to
contemplate the seriousness of the offense;
h. There is confirmed evidence that the inmate
attempted to withdraw prior to completion of the offense or attempted to make
restitution prior to the discovery of the offense;
i. The inmate genuinely believed he had a claim of
right (property offenses only);
2. Reasons related to likelihood of favorable parole
outcome, positive indicants of parole prognosis can include:
a. The inmate has led a law-abiding life for a
substantial period before commission of the crime;
b. The inmate’s past offenses were of a trivial
nature;
c. The inmate has the availability of extremely strong
community resources;
d. The inmate has made restitution to the victim of
this crime for the injury, damage, or loss sustained;
e. The inmate has a poor medical prognosis;
f. The inmate has provided substantial cooperation to
the government which has been otherwise unrewarded;
g. The inmate has served, or faces a substantial
period of incarceration for other offenses;
h. The inmate has made a record of clearly exceptional
program achievement; (This factor would normally not be applied at the time of
the initial interview but may be applicable after a substantial period of
incarceration)
i. The inmate is an alien and faces deportation under
a deportation order or detainer which has been formally entered by the United
States Immigration and Naturalization Service;
j. The inmate has spent a long period of incarceration
in another jurisdiction(s).
Specific
Authority 947.07, 947.165 FS. Law Implemented 947.002, 947.13, 947.165 FS. History–New
23-21.011 Calculating Time in Custody.
Time
in custody means only time in actual physical custody for the present offense
of conviction. Time out of incarceration shall be part of the calculation of
time in custody. Time out shall include but not be limited to bail, supersedeas
bond, escape, unauthorized absence from official custody, parole or MCR not
credited by the Commission, or Federal Witness Protection and must be
considered before a presumptive parole release date is established. Following
are the procedures to be followed in calculating time in custody for single
conviction commitments, multiple conviction commitments and cases where
aggregation applies:
(1) Single Conviction Commitments:
(a) From the inmate’s judgment and sentence
document, determine the date of sentencing of the present offense of
conviction.
(b) From the judgment and sentence document, determine
the amount of county jail credit the Court awarded the inmate.
(c) Subtract from the date of sentence the Court
awarded county jail credit. This will reflect the date the inmate was in actual
physical custody as determined by the Court.
(d) Subtract any credit awarded by the Commission.
(e)(d) Determine if the inmate spent any time out of
incarceration. Time out of incarceration shall include for example, mandatory
conditional release, supersedeas bond, escape, grant of reprieve or parole.
If the inmate was out of incarceration, ascertain the exact number of days out
of incarceration and add those days to the date found in paragraph (c) above.
This computation will produce the "TIME BEGINS" date.
(f)(e) Determine the total number of months for
incarceration and add that time to the "TIME BEGINS" date, as
determined in Paragraph (e)(d) above. The resulting date will be
either the recommended (by a parole examiner) or the established (by quorum)
presumptive parole release date.
(2) Multiple Conviction Commitments:
(a) Examine all the judgment and sentence documents
and determine the amount of county jail credit for each conviction that
actually reflects the total time spent in custody. Subtract from the
date of each sentence the Court awarded county jail credit for that sentence
and use the earliest date computed. (Care must be taken in computing
this time so that the inmate does not receive duplicate credit nor is the
inmate to be denied authorized county jail time credit).
(b) Subtract any credit awarded by the Commission.
(c)(b) Determine if the inmate spent any time out of
incarceration. Time out of incarceration shall include, for example, mandatory
conditional release, supersedeas bond, escape, grant of reprieve or parole.
If the inmate was out of incarceration, add those days to the date found in
paragraph (a) above. If the inmate is paroled to a non-parole eligible
sentence(s), the time served on those sentences may be considered for the
purposes of computing the time begins date. This computation will
produce the "TIME BEGINS" date.
(d)(c) Determine the total number of months for
incarceration for the multiple conviction commitments and add that time to the
"TIME BEGINS" date, as determined in paragraph (b) above. The
resulting date will be either the recommended (by a parole examiner) or the
established (by quorum) presumptive parole release date.
(3) Aggregation is intended to serve as a mechanism
for uniformly evaluating criminal episodes which occur prior to discharge from
incarceration or parole. When an examiner finds at an initial interview that an
inmate has more than one criminal episode which occurred prior to his discharge
from incarceration or parole, the examiner shall aggregate each applicable
criminal episode’s present commitment. Inasmuch as all sentences must be
considered for parole consideration, when an inmate has expired commitments
without intervening periods of discharge from incarceration or parole, including
sentences to "time served," resulting from previous criminal
episodes, such expired commitments shall be considered present commitments for
purposes of aggregation.
In
the event the Commission does not revoke parole, such present commitment or
commitment on which the inmate was paroled shall not be subject to aggregation.
Specific
Authority 947.07 FS. Law Implemented 947.002, 947.165 FS. History–New
23-21.012 Inmate Initiated Review of Presumptive
Parole Release Date.
(1) An inmate can request one review of each initial
presumptive parole release date established according to Section 947.173(1),
F.S., if the inmate shows cause in writing, with individual particularities,
within sixty (60) days after the date the inmate is notified of the establishment
of decision on the presumptive parole release date. In that request
for review, the inmate must address every matter with which he takes issue
or exception. The Commission shall accept the request for review either
from the inmate, from the inmate’s attorney or from a person with a power
of attorney from the inmate. The request for review may be submitted on form
PCG-5, which is hereby incorporated by reference. However, the The
Commission shall not require any particular form for the request for
review. The but the following matters must be included:
(a) Inmate name and Department of Corrections Prison
Number;
(b) Inmate’s established presumptive parole
release date;
(c) The case specific materials of which the inmate is
requesting review:
1. Salient Factor Scoring;
2. Severity of Offense Behavior;
3. Aggravating or Mitigating Factors;
4. Calculation of Time in Custody.
(d) The relief sought by the inmate.
(e) The inmate can submit any written or printed
evidence purporting to be an official court record. However, any such evidence
shall be verified by the Commission and if verification proves any portion of
the printed evidence to be invalid or false, the Commission shall inform the
proper State Attorney.
(2) The Commission shall not entertain requests for
review on any other Commission action review on any action regarding any
action on biennial, effective, or special interviews.
(3) The Commission shall not entertain administrative
review requests of full Commission actions declining to authorize effective
parole release dates.
Specific
Authority 947.07 FS. Law Implemented 947.173 FS. History–New
23-21.013 Subsequent Biennial Interview
Procedure.
(1) The Commission Director of Parole Grant
shall schedule a subsequent biennial interview for every eligible
inmate as follows: within 2 years of the month of the inmate’s
initial interview. Subsequent interviews will be scheduled every 22 months,
unless otherwise specified by a panel or full Commission
(a) For any inmate, except an inmate convicted of an
offense enumerated in paragraph (b), whose presumptive parole release date
falls more than 2 years after the date of the initial interview, the Commission
shall schedule a subsequent interview to take place within 2 years after the
initial interview and at least every 2 years thereafter.
(b) For any inmate convicted of murder, attempted
murder, sexual battery, attempted sexual battery, or who has been sentenced to
a 25-year minimum mandatory sentence as previously provided in Section 775.082,
F.S., and whose presumptive parole release date is more than 5 years after the
date of the initial interview, the Commission shall schedule a subsequent
interview to take place within 5 years after the initial interview and at least
every 5 years thereafter if the Commission finds that it is not reasonable to
expect that parole will be granted at a hearing during the following years and
states the bases for the finding in writing.
(2) The parole examiner shall review the
inmate’s institutional file to and determine if there is
new information since the previous interview whether or not new
information has been added since the date of the initial interview. Such
Nnew information shall include new court actions; successful
appeals of court actions; prison progress reports; disciplinary reports;
psychological or psychiatric reports; gain-time and extra gain-time awards;
vocational training or treatment programs successfully completed, in
progress or abandoned; educational accomplishments or abandonments; work
release or terminations of work release; pardons, sentence commutations, or
expunctions of record, and any other aggravating or mitigating factors which
were not included in the institutional file at the time of the previous initial
interview.
(3) Vacation of presumptive or effective parole
release date: The exiting of an inmate from the incarceration portion of his
sentence, which shall include bond, escape, expiration of sentence, or transfer
to a mental health facility, shall vacate any established presumptive parole
release date. Any subsequent return to incarceration shall require an initial
interview to establish a presumptive parole release date. Provided, however,
inmates returning to court for modification of a previously imposed sentence or
as witnesses shall not have their presumptive parole release dates vacated.
Inmates returning to courts outside of Inmates may waive biennial interview by preparing
a written statement or by appearing before the parole examiner and announcing
in person their waiver. In the event an inmate waives his biennial interview
the parole examiner will review the contents of the institutional file and may
formulate a recommendation based on the factors that could have been considered
in the conduct of the biennial interview.
(4) The parole examiner shall discuss the information
with the inmate and any Departmental representative. The Department’s
Representative, if present, will be contacted
and allowed to provide enter the Department’s
recommendation directly on the biennial interview form and subsequently
return that form to the parole examiner during the interview. The
inmate will also be allowed to provide the parole examiner comments on the
form or may ask the examiner to attach material(s) which the inmate wants
the Commission to consider. Finally, tThe parole examiner shall
request the inmate sign an acknowledgment that the inmate was present during
the biennial subsequent interview and the examiner shall inform
the inmate orally of the examiner’s final recommendation. The parole
examiner shall reduce the recommendation to writing and send it to the Chair
within 10 days of the interview.
(5) For inmates serving parole-eligible sentences
imposed by a court of this state and housed in a facility outside Florida, the
Commission shall request, through the Department of Corrections' Interstate
Compact Office, an inmate progress report and any additional information the
Commission needs from the other state. The Department of Corrections shall
forward the Commission’s Inmate Input Form to the other state for the
inmate to provide comments to the Commission. The inmate may include
material(s) which the inmate wants the Commission to consider. The parole
examiner shall reduce the recommendation to writing and send it to the Chair
within 10 days of receipt of the out-of-state materials. The parole examiner shall reduce to writing its
determination of matters it believes to be new information and shall recommend
that the new information should:
(a) have no effect on the presumptive parole release
date; or
(b) Have effect on the presumptive parole release date
and should add or subtract an appropriate number of months to the presumptive
parole release date. The parole examiner’s recommendation shall be sent
to the Chair within 10 days of the biennial interview and the Chair shall
assign the matter to a quorum
(6) Within ninety days following the subsequent
biennial interview or receipt of the out-of-state materials, the
quorum shall reach a decision on each biennial recommendation made by
the parole examiner and notify the inmate of the decision. Based upon competent
and persuasive evidence, the quorum may accept or reject the parole
examiner’s recommendation and may independently determine whether or not
information has been gathered which affects the inmate’s presumptive
parole release date.
(7) Inmates may waive a subsequent interview by
preparing a written statement or by appearing before the parole examiner and
announcing the waiver in person. If an inmate waives his subsequent interview
the parole examiner will review the contents of the institutional file and will
formulate a recommendation based on the factors that could have been considered
in the conduct of the subsequent interview.
Specific
Authority 947.07, 947.174 FS. Law Implemented 947.174 FS. History–New
23-21.014 Special Interviews.
(1) The Commission or a quorum may instruct a
parole examiner to conduct a special interview at any time during the
incarceration portion of an inmate’s sentence. Such instruction shall
contain a written statement setting forth the reason for the special interview
and shall be made a part of the inmate’s Department file. The specific
instruction, as well as any new information, shall be considered by the parole
examiner when making a recommendation to the Commission.
(2) The recommendation of the parole examiner shall be
forwarded to the Commission and a the quorum shall inform the
inmate in writing of its decision regarding the presumptive parole release date
within ninety days of the special interview.
(3) The Department of Corrections may can
recommend a special interview or mitigation of an inmate’s presumptive
parole release date. If the Department makes such a recommendation,
staff will docket that recommendation for the Commission’s consideration
be completed on an effective parole release date interview form for inmates
participating in a Department of Corrections work release program. This
recommendation will be made directly to the Regional Administrator, who in turn
will immediately schedule the recommended inmate for interview. Following the
conduct of this interview, the parole examiner will submit the Department of
Corrections recommendation and his interview worksheets to the Commission for
action. The Commission will consider the recommendation and determine
whether to notice the court of the Commission’s intent to parole without
an effective parole release date interview, pursuant to Section 947.1745, F.S.
(4) The Department of Corrections can recommend
mitigation of an inmate’s presumptive parole release date via a
Department of Corrections Progress Report according to the following
procedures:
(a) The Department will include in a full Progress
Report specific reasons that justify a change in the present PPRD. The Progress
Report will update the inmate’s progress since the last parole interview
and shall include:
1. What the inmate has done to benefit himself in self
betterment programs;
2. The inmate’s work assignments and whether the
assigned work has been critical to the operation of the institution or future
employment opportunities;
3. The inmate’s adjustment within the
institution, citing gain time earned and/or withheld with reasons for award/
forfeiture;
4. The inmate’s release plan including proposed
residence and employment and whether the plan has been verified.
(b) Upon receipt of the Progress Report recommending
mitigation of the PPRD transmitted by Department of Corrections Central Office
staff, the Commission will docket the case for panel action.
(c) The panel can act upon the recommendation for
mitigation without provision of a Special Interview. Under no circumstances,
however, will this policy negate provision of an effective interview.
Specific
Authority 947.07 FS. Law Implemented 947.174 FS. History–New
23-21.015 Effective Parole Release Date Interview
Procedure.
(1) Within ninety (90) days before the effective
parole release date interview, the Commission shall send written notice to the
sentencing judge of any inmate who has been scheduled for an effective parole
release date interview. If the sentencing judge is no longer serving, the
notice must be sent to the chief judge of the circuit in which the offender was
sentenced. The chief judge can designate any circuit judge within the circuit
to act in place of the sentencing judge. Within thirty (30) days after receipt
of the Commission’s notice, the sentencing judge or the designee shall
send to the Commission notice of objection to parole release, if the judge
objects to such release. If there is objection by the judge such objection may
constitute good cause in exceptional circumstances as described in Section
947.173, F.S., and the Commission can schedule a subsequent interview per
Rule 23-21.013, F.A.C. within two (2) years, extending the
presumptive parole release date beyond that time. The same procedure will be
followed with any subsequent review outlined herein. If the judge remains
silent with respect to parole release, the Commission can authorize an
effective parole release date. This procedure applies if the Commission desires
to consider the establishment of an effective release date without delivery of
the effective parole release date interview. Notice of the effective release
date must be sent to the sentencing judge and either the judge’s response
to the notice must be received or the time period allowed for such response
must have lapsed before the Commission can authorize an effective release date.
Within ninety (90) days before an inmate’s presumptive parole release
date, the Commission Director of Parole Grant shall direct a Parole
parole Examiner to interview the inmate for purposes of making a
recommendation to the Commission on whether or not to authorize an effective
parole release date and to establish a parole release plan.
(2) The Parole Examiner shall interview the inmate and
discuss the inmate’s institutional conduct. The Parole Examiner shall
request the inmate to present his parole release plan but shall not
comment on the acceptability or suitability of that plan. If the inmate has no
plan available, the Parole Examiner shall inform the inmate that the
absence of a satisfactory parole release plan may on any effective
parole release date established by the Commission shall be cause for
the Commission to extend rescind the effective parole release
date up to one year until a satisfactory parole release plan has been
developed or cause for the parole release date to be extended not more than
one year. At the close of the effective parole release date interview, the
inmate shall be orally informed of the examiner’s final recommendation
and shall be requested to sign an acknowledgment of presence at the effective
parole release date interview.
(3) Vacation of presumptive or effective parole
release date: The exiting of an inmate from the incarceration portion of his
sentence, which shall include bond, escape, expiration of sentence, or transfer
to a mental health facility, shall vacate any established presumptive parole
release date. Any subsequent return to incarceration shall require an initial
interview to establish a presumptive parole release date. Provided, however,
inmates returning to court for modification of a previously imposed sentence or
as witnesses shall not have their presumptive parole release dates vacated.
Inmates returning to courts outside of
(4) Extension of presumptive parole release date: The
pending prosecution of a criminal offense in a Florida Court, supported by
information or indictment, alleged to have occurred during the service of the
present sentence, may result in the extending of a presumptive or effective
parole release date until resolution of the pending prosecution. The Commission
shall, upon notice that the pending prosecution is completed, schedule the
inmate for an interview.
(5)(3) The Parole Examiner shall reduce the recommendation
regarding the inmate’s institutional conduct to writing and forward the
recommendation those recommendations to the Commission. The Parole
Examiner shall inform the Commission if, at the effective parole release date
interview, new information, either favorable or detrimental, was discovered
which might affect the presumptive parole release date. The Parole Examiner
shall forward the inmate’s release plan to the Commission.
(6)(4) Within thirty (30) days after receipt of the
inmate’s parole release plan at the Commission headquarters, the full
Commission shall determine whether to authorize the effective parole release
date. The inmate must be notified of the decision in writing within thirty (30)
days after the decision of the Commission panel.
(7)(5) If the full Commission panel finds that the
inmate’s parole release plan is unsatisfactory, this finding can constitute
new information and good cause in exceptional circumstances as described in
Section 947.173, F.S., under which the Commission a panel can
extend a presumptive parole release date for not more than one year. The Commission
panel can review any subsequently proposed parole release plan at any
time.
(8)(6) The decision whether to authorize an effective parole
release date requires a two-part analysis. In part I the Commission quorum
shall determine whether new information has been gathered which requires
modification of the presumptive parole release date. Should the Commission
quorum decide to modify the presumptive parole release date it shall
enter a written order extending the presumptive parole release date declining
to authorize the effective parole release date, vacating the presumptive parole
release date, and establishing a new presumptive parole release date.
Additionally, the order shall state, with particularity, the reason or reasons
for extending modifying the presumptive parole release date and
shall inform the inmate of the date scheduled for his next effective parole
release date interview.
(9)(7) Where the Commission quorum does not
modify the presumptive parole release date during part I of the effective
review process, it shall proceed to part II of the effective parole release
date review. During this portion of the review, the Commission quorum
shall determine whether the inmate meets the criteria for parole release under
the provisions of Section 947.18, F.S. This determination is to be based upon a
review of the entire official record in the inmate’s case. If the inmate
is found to meet the criteria for parole release, an effective parole release
date should be authorized. If the inmate is found to be ineligible for parole
release, however, the Commission quorum shall enter an order
declining to authorize the effective parole release date and referring the case
to the Commission for extraordinary review. Such review shall in turn be
conducted within thirty days after the quorum’s decision declining to
authorize the effective parole release date. The inmate shall be informed of
the decision on extraordinary review within thirty days of the
Commission’s decision.
(10)(8) If the Commission quorum establishes an
effective parole release date, the Commission Director of Parole
Grant shall reduce the term and conditions of the inmate’s parole to
writing and inform the inmate of those conditions and term.
(9) Any release plan found to be unsatisfactory shall
cause an effective parole release date to be delayed as follows:
(a) For inmates convicted on or before April 19, 1982, their release date may be postponed for thirty days.
On or before the thirty-first day, the Commission shall either parole the
inmate or cause a parole examiner to conduct a rescission hearing on the matter
of the infraction or infractions, new information, acts or unsatisfactory
release plan, as charged.
(b) For inmates convicted on or after April 20, 1982, their release date may be postponed for sixty days.
On or before the sixty-first day, the Commission shall either parole the inmate
or cause a parole examiner to conduct a rescission hearing on the matter of the
infraction or infractions, new information, acts or unsatisfactory release
plan, as charged.
(10) Any effective parole release date authorized by
the quorum is contingent upon satisfactory institutional conduct. If after the
establishment of an effective parole release date, the inmate’s
institutional conduct becomes unsatisfactory, or new information is acquired which
was not available at the time of the effective parole release date interview,
the inmate’s release can be rescinded.
(11) In establishing the term of parole, the
Commission shall examine the inmate’s sentence structure for the purpose
of determining the existence of consecutive sentences. If it is discovered that
consecutive sentences exist, the parole term shall be established for the
maximum of the total sentence structure. In all cases, if the term of parole
exceeds two years the Commission shall advise the parolee in writing of the
reasons for the extended term.
(12) When new information is received by the
Commission subsequent to the grant of parole, to include an unsatisfactory
release plan, unsatisfactory institutional conduct, or any other new information
previously not available to the Commission at the time of the effective parole
release date interview that would impact the Commission’s decision to
grant parole, the effective parole release date may be postponed by any
Commissioner as provided in Rule 23-21.019, F.A.C.
(13) If an inmate refuses parole, the Commission shall
nullify the grant of parole and the presumptive parole release date may be
extended up to the maximum release date. The Commission shall continue to
interview the inmate per Rule 23-21.013, F.A.C. Should an inmate waive his
effective interview or at the time of the effective interview the inmate
indicates his unwillingness to accept parole, the presumptive parole release
date may be extended up to his maximum release date. The Commission shall
continue to interview the inmate per Rule 23-21.013, F.A.C.
Specific
Authority 947.07, 947.20 FS. Law Implemented 947.1745, 947.24 FS.
History–New
23-21.0155 Extraordinary Interview and Review
Procedures.
Where
an inmate’s case is referred to the Commission for extraordinary review,
the following procedures shall be utilized:
(1) The Commission shall independently
review the complete official record in the inmate’s case to determine
whether he is eligible for parole release.
(2) If a majority of the
Commission finds the inmate to be eligible for parole release, the Commission
shall enter an order authorizing the inmate’s effective parole release
date. Thereafter, the inmate’s actual release on parole shall occur on
his effective parole release date subject to the provisions of law authorizing
postponement or rescission of an order of parole due to an unsatisfactory
release plan, unsatisfactory institutional conduct or acquisition of new
information not available at the time of the effective parole release date
interview.
(1)(3) When an inmate’s case is referred for
extraordinary review by the Commission, an order shall be prepared outlining
the reason(s) for the Commission’s decision. The order shall be acted
upon by the Commission within 60 days of the decision declining to authorize
the effective parole release date. If less than a majority of the Commission
finds the inmate to be eligible for parole release, the Commission shall enter
a written order refusing to authorize the effective parole release date and
scheduling an extraordinary interview within two years from the date of the
effective parole release date interview. The Commission’s order shall
specifically state the reasons for finding the inmate to be a poor ineligible
candidate for parole release pursuant to Section 947.18, F.S., and shall
identify the information relied upon in reaching this conclusion. Additionally,
the order shall suspend the established presumptive parole release date until
such time that the inmate is found to be a good candidate eligible
for parole release. The determination, on extraordinary review, that an inmate
is not eligible a good candidate for parole release shall have the
effect of overriding his guideline-determined presumptive parole release
date however, the inmate shall continue to receive extraordinary interviews which
shall be scheduled pursuant to Rule 23-21.013, F.A.C, on a biennial
basis.
(2) If upon extraordinary review, a majority of the
Commission finds the inmate to be a good candidate for parole release pursuant
to Section 947.18, F.S., the Commission shall enter a written order authorizing
the effective parole release date and outlining the term and conditions of
parole.
(4) In conducting extraordinary interviews, examiners
shall follow the procedures specified in these rules for conducting effective
parole release date interviews and, additionally, shall obtain information
relevant to the Commission’s previous determination that the inmate was
ineligible for parole release. Each extraordinary interview shall be completed
no later than two years after the inmate’s last effective or extraordinary
interview. Within thirty days after receipt of the interviewing
examiner’s recommendations, the Commission shall conduct an extraordinary
review and shall again determine whether the inmate is eligible for parole
release and whether or not to authorize an effective parole release date. The
inmate shall be informed in writing of the Commission’s findings on
extraordinary review within thirty days of the Commission’s decision.
(5) If, as a result of extraordinary interview, the
Commission finds the inmate to be eligible for parole release, it shall order
his release on parole to begin within sixty days from the date of the
Commission’s decision. Thereafter, actual release on parole is subject to
the provisions of law authorizing postponement or rescission of an order of
parole due to an unsatisfactory release plan, unsatisfactory institutional
conduct, or acquisition of new information not available at the time of the
most recent effective or extraordinary interview.
(6) If, as a result of extraordinary interview and
review, the Commission finds that the inmate continues to be ineligible for
parole release, the Commission shall again state the reasons and record support
for this finding and shall again refuse to authorize an effective parole
release date. Finally, the Commission shall schedule a subsequent extraordinary
interview to be conducted no later than two years from the date of the last
extraordinary interview. Thereafter, such extraordinary interviews and reviews
shall be performed in accord with this rule and shall continue until the
Commission finds the inmate to be eligible for parole release or he otherwise
satisfies his term of incarceration.
Specific
Authority 947.002, 947.07 FS. Law Implemented 947.18 FS. History- New
23-21.016 Notice to Local Agencies.
(1) Subsequent to the Commission’s establishing
an inmate’s effective parole release date, the Director of Parole Grant
shall provide written notice to the original sentencing judge, the appropriate
state attorney, the original arresting law enforcement agency and the Sheriff
of the county within the State of Florida to which the inmate is to be released. In the event
the original sentencing judge is no longer available, notice shall be sent to
the chief judge of the circuit in which the offender was sentenced.
(2) No notice shall be required for potential parolees
being released to jurisdictions outside of the State of Florida.
Specific
Authority 947.20, 947.07 FS. Law Implemented 947.175 FS. History- New
23-21.0161 Extraordinary Interview Procedure.
(1) In conducting extraordinary interviews, examiners
shall follow the procedures specified in these rules for conducting effective
parole release date interviews and, additionally, shall obtain information
relevant to the Commission’s previous determination that the inmate was
not a good candidate for parole release. The Parole Examiner shall reduce his
recommendation to writing and forward it to the Commission within 30 days. The
Commission shall independently review the complete official record in the
inmate’s case. The inmate shall be informed in writing of the
Commission’s findings on extraordinary review within thirty days of the
Commission’s decision.
(2) If, as a result of extraordinary interview, the
Commission finds the inmate to be a good candidate for parole release, it shall
establish an effective parole release date within two years from the date of
the Commission’s decision and schedule a new effective interview, if
needed. Thereafter, actual release on parole is subject to the provisions of
law authorizing postponement or rescission of an order of parole due to an
unsatisfactory release plan, unsatisfactory institutional conduct, or
acquisition of any other new information not available at the time of the most
recent effective or extraordinary interview and as provided in Rule 23-21.019,
F.S.
(3) If, as a result of extraordinary interview, the
Commission finds that the inmate continues to be a poor candidate for parole
release, the Commission shall again state the reasons and record support for
this finding and shall again refuse to authorize an effective parole release
date. Finally, the Commission shall schedule a subsequent extraordinary
interview pursuant to Rule 23-21.013, F.A.C. Thereafter, such extraordinary
interviews shall be performed in accord with this rule and shall continue until
the Commission finds the inmate to be a good candidate for parole release or he
otherwise satisfies his term of incarceration.
Specific
Authority 947.002, 947.07, 947.20 FS. Law Implemented 947.18 FS. History–New
________.
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 ___, where I shall reside. Immediately upon my
arrival, I shall report by mail, telephone, or personal visit to the
parole supervisor and probation supervisor under whose
supervision I am to be paroled. The parole supervisor’s officer’s
and probation supervisor’s name and address is: ___.
(b) Condition 2 – I shall secure the permission
of my parole officer before:
1. I change my residence or employment,
2. I leave the county of my residence or the state,
3. I post bail or accept pretrial release if I am
arrested for a felony.
(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.
(d) Condition 4 – I shall not:
1. Use alcohol or intoxicants of any kind to excess,
2. Use or possess narcotics, drugs, or marijuana
unless prescribed by a physician.
(e) Condition 5 – I shall not knowingly
associate with any person who is engaging in any criminal activity.
(f) Condition 6 – I shall secure the permission
of my parole officer before I own, carry or have in my constructive possession
a firearm, knife or any other item capable of being used as a weapon.
(g) Condition 7 – I shall obey all laws,
ordinances and statutory conditions of parole.
(h) Condition 8 – I shall:
1. Submit to a reasonable search by a parole officer,
of my person, residence or automobile,
2. Waive extradition back to the State of Florida if I
am wanted for return as an alleged parole violator,
3. Permit my parole officer to visit me at my
residence, employment or elsewhere,
4. Promptly and truthfully answer all questions and
follow all instructions asked or given to me by my parole officer or the
Commission.
(i) Condition 9 – I understand that I am to
remain on parole until released therefrom by expiration or by Commission
order.
(j) Condition 10 – During my parole term, I
agree to submit to random testing as directed by my supervising officer or the
professional staff of any treatment center where treatment is being received to
determine the presence or use of alcohol or controlled substances pursuant to
Section 877.111, F.S., or Chapter 893, F.S.
(k) Condition 11 – During my parole term, I
agree to submit and pay for urinalysis testing to determine the presence or
use of alcohol or controlled substances pursuant to Section 877.111, F.S., or
Chapter 893, F.S. identify drug usage and understand that my failure
to make such payment or participate as defined under this condition of my
parole may will be considered grounds for revocation of parole by
the Parole Commission.
(l) Condition 12 – I agree to pay cost of
supervision and rehabilitation as calculated and assessed by the Department of
Corrections as provided and required in Section 948.09, F.S.
(2) There can also be imposed special conditions of
parole. In the event the Commission elects to order an inmate released on
parole, the record of such decision shall reflect whether or not a special
condition of restitution is appropriate to the case being considered. In
reaching the decision, the Commission shall review the analysis provided by its
parole examiner plus any other facts relevant to the issue of restitution.
(a) If restitution is ordered to become a special
condition of the parole release, the Commission shall require full payment of
the damage or loss sustained by the victim(s), unless reasons exist to not
order full restitution. Examples of possible reasons why the Commission would
order partial restitution are:
1. The inmate’s employment ability is limited or
the inmate is dependent on others for a livelihood.
2. The inmate cannot realistically make full
restitution and concurrently provide a means of financial support for himself
and for his dependents.
(b) If the Commission determines the restitution is
factually supportable for a given case, it can elect not to order restitution
as a special condition of parole. The election to not order restitution shall
be supported by reasons which are announced on the record at the time of the
decision. Examples of reasons are:
1. It has been determined that the location of the
victim is not known and reasonable effort to locate the victim has transpired;
therefore, payment of restitution to the victim is not possible.
2. The victim has stated that restitution is not
desired.
3. The amount of restitution cannot be determined.
(c) In the event the case record reflects an absence
of needed information regarding an amount of loss, location of victim or other relevant
facts, the parole examiner assigned to provide the effective interview shall
generate an investigation request to the appropriate Commission field office. A
copy of such request will be attached to the effective interview material. Upon
receipt of a restitution investigation request, the Commission field office
shall promptly cause an investigation to be conducted, submitting results to
the Commission’s central office.
(d) In the event the Commission elects to enter into a
Mutual Participation Program agreement, the terms of any agreement shall
include provisions for restitution if applicable. The determination of whether
restitution should be made and such amount shall be determined prior to the
time of negotiation.
(e) In addition to the question of restitution, the
parole examiner staff and the Commission shall provide analysis of each case
regarding the existence of any "debt to the State" as defined in
Section 960.17, F.S. If it is determined that such debt exists, the Commission
shall order repayment of the debt by way of special condition of parole unless
reasons as in the case of restitution are applicable. The record of the
Commission decision on payment of any debt to the State will be the record of
the Commission meeting at the time the decision is made.
(3) The Commission is authorized to impose special
conditions of parole other than those concerning restitution.
(4) The Commission has authority to require an inmate
be placed in the Community Control Program of the Department of Corrections, as
a special condition of parole. The term of community control supervision shall
not exceed six (6) months. In every case in which the Commission decides to
place an inmate on community control as a special condition of parole, the
Commission shall provide a written explanation of the reasons for its decision.
Specific
Authority 947.07, 947.20 FS. Law Implemented 947.20, 947.23 FS. History–New
23-21.017 Review of Term and Conditions of Parole.
(1) Within 30 days of the effective parole release
date interview, the Commission Director of Parole Grant shall
inform the inmate of that the quorum has authorized the
inmate’s effective parole release date. The inmate shall be provided with
a certified copy of the term and conditions for assigned by the
quorum to the inmate’s individualized parole. The inmate shall be
informed that his release on the effective parole release date is contingent
upon a satisfactory release plan and continued satisfactory institutional
conduct.
(2) The inmate can request one review of the term and
conditions of the parole. This Said review must be initiated
within 120 days of the date the Commission Director of Parole Grant
provided a certified copy of the term and conditions to the inmate of
the inmate’s individualized parole.
(3) Notwithstanding any pending request for review of
term and conditions of parole, any failure by a prospective parolee to sign an
official Parole Certificate constitutes refusal of parole and the inmate shall
not be released on parole. During the pendency of the aforementioned
review period, the term and conditions of the parole, set forth in writing,
will apply be applicable to the parolee. No any
person released on parole, and no person will be so released without
a his signed acknowledgment and acceptance of the those
conditions and term.
(4) The Chair shall assign the request to modify
the term and conditions of parole to a quorum other than the quorum that
authorized the original conditions of parole. The Commission quorum
shall consider any review the request to modify the term and
conditions of parole and render a written decision to continue or to modify the
term and conditions of parole, specifying the reasons therefor and
inform the inmate/ parolee of the decision in writing within 30 days of the
date of receipt of request for review. If the Commission that quorum
determines that the term and conditions shall not be modified, the original
term and conditions remain binding on the inmate/ parolee. If the Commission
quorum determines that the term and conditions should be modified, those
modified term and conditions become binding on the parolee/ inmate when those
conditions and term are signed, acknowledged and accepted by the
inmate/parolee.
(5) The Release Services Supervisor Director
of Parole Grant is authorized to issue a corrected an Amended
Certificate of Parole. This authority shall be restricted to those cases in
which the special condition(s) or term of parole has been incorrectly stated in
the original certificate as ordered by the Commission and the amended
certificate is required to correct the original certificate to reflect the
proper condition(s) or term.
(6) The Commission has authority, at any time during
the term of parole to review the previously established term or conditions of
parole and order the issuance of an Amended Certificate of Parole modifying
such term or conditions based on change of circumstances, or discharge the person
from parole. Such modification should not impose a new or different term or
condition of parole that is more restrictive than what was stated in the
original certificate. More restrictive modifications may only be made during
the revocation process, under Rule 23-21.022, F.A.C.
(7) The Commission 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 every two years biennially
thereafter. Such reviews must include consideration of whether to modify
reporting schedules, 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, semiannual or annual reporting, the
following definitions will be applicable:
(a) Quarterly Reporting – One personal contact
required every three months.
(b) Semiannual Reporting – One personal contact
required every six months.
(c) Annual Reporting – One personal contact
required every twelve months.
(8) The Commission shall give specific instructions
reflecting whether the personal contact is to take place in a formal office
setting or in a setting to be determined by the parole officer. The Commission
shall also give specific instructions establishing the method of payment for
cost of supervision.
Specific
Authority 947.07, 947.20 FS. Law Implemented 947.19, 947.20 FS. History–New
23-21.018 Disposition of Cases Involving Parole
Ineligible Sentences Special Types of Cases Under the Guidelines.
(1) Vacation of presumptive or effective parole
release date: The exiting of an inmate from the incarceration portion of his
sentence, which shall include bond, escape, expiration of sentence, or transfer
to a mental health facility, shall vacate any established presumptive parole
release date. Any subsequent return to incarceration shall require an initial
interview to establish a presumptive parole release date. Provided, however,
inmates returning to court for modification of a previously imposed sentence or
as witnesses shall not have their presumptive parole release dates vacated.
Inmates returning to courts outside of Florida’s jurisdiction, i.e., Federal or other state,
shall not have their presumptive parole release dates vacated. However,
information resulting from disposition of cases in court may be used as new
information in accordance with applicable law and these rules. Inmates
transferred to a Mentally Disordered Sexual Offender Program shall not have
their presumptive parole release dates vacated.
(2) Extension of presumptive parole release date: The
pending prosecution of a criminal offense in a Florida Court, supported by
information or indictment, alleged to have occurred during the present
sentence, may result in the extending of a presumptive or effective parole
release date until resolution of the pending prosecution. The Commission shall,
upon notice that the pending prosecution is completed, schedule the inmate for
an interview.
(3) Parole or MCR revocation with a new felony or
misdemeanor conviction: Inmates whose parole is revoked after conviction for a
new felony or misdemeanor offense, and who are committed to a jail, stockade or
correctional institution will be considered under these guidelines as a new
admission and the Commission can use concurrent new commitments as aggravation
or aggregation in the establishment of a presumptive parole release date.
Further, the Commission shall aggravate or aggregate each consecutive sentence.
(4) 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. However, that
policy may be disregarded if:
(a) The preponderance of available evidence suggests
that the parolee would pose a danger to public safety or would likely engage in
new criminal conduct if reinstated to parole; or
(b) The parolee has multiple revocations for
violations of the conditions of his parole under the current sentence; or
(c) The parole 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 or MCR 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.
(5)(a) In cases where an inmate was convicted and
sentenced to a mandatory minimum sentence on or before April 19, 1982, the
mandatory minimum sentence is binding; however, the Commission will schedule an
initial interview within the previously authorized statutory time constraints.
(b) Cases where an inmate was convicted and sentenced
to a mandatory minimum sentence on or after April 20, 1982, will be scheduled
for an initial interview pursuant to paragraph 23-21.006(3)(b), F.A.C.
(6) Presumptive Parole Release Date exceeds expiration
of sentence: Pursuant to these rules, the Commission shall establish a
presumptive parole release date for inmates found to be eligible for parole
consideration. If the established presumptive parole release date exceeds the
expiration of sentence date, that date shall not incarcerate the inmate past
the expiration of his sentence.
(7) Conviction for crimes committed while
incarcerated: Escape or any other crime committed during incarceration with an
ensuing conviction and sentence vacates any previously established presumptive
parole release date and shall cause the inmate to be considered a new
admission. If the inmate is found to be eligible for consideration for parole
on the ensuing sentence(s) the Commission shall aggregate. If the
inmate’s ensuing sentence(s) are not parole eligible, the Commission can
use these new commitments as aggravation in the establishment of a new
presumptive parole release date.
(1)(8) Disposition of Cases Involving Parole Ineligible
Sentences. Any inmate who is serving both parole eligible and ineligible
sentences is eligible for parole consideration only on the eligible sentence or
sentences. However, actual terms of parole service shall not be initiated until
the satisfactory completion of the parole ineligible sentence and subsequent
review by the Commission.
(a) If an inmate received a parole ineligible sentence
under the provisions of Chapter 921, F.S., subsequent to or at the same time he
received a parole eligible sentence, then he shall receive his initial
interview in accordance with subsection 23-21.006(2), F.A.C. The Commission
shall establish a presumptive parole release date and conduct subsequent
reviews in a manner consistent with current law and administrative rules.
(b) Upon the Commission reaching a decision to
authorize the establishment of an effective parole release date, an order
granting parole shall be entered which shall specify that such order is
applicable only to sentences which are parole eligible. The order shall contain
appropriate language to ensure that all interested parties are clear as to the
limited effect of such order.
(c) Upon the completion of the parole ineligible
sentence as determined by the Department of Corrections, an interview
shall be scheduled and conducted for the purpose of considering any new
information and to obtain a release plan from the inmate. The
inmate’s case shall be placed on the Commission agenda following the
interview at which time a decision shall be made regarding the inmate’s
release on parole.
1. If no new information is received which would
negatively impact the release the decision is to release the inmate on
parole, the Commission shall establish a term of parole and such conditions
of parole shall be determined in a manner currently provided for by law, except
that the time the inmate served subsequent to the grant of parole shall not be
counted.
2. If the Commission decides not to release the inmate
on parole, based on an unsatisfactory release plan, unsatisfactory
institutional conduct or any other new information that would impact the
release decision, the Commission shall cause a rescission hearing to be held to
review the new information. Following the rescission hearing, the
Commission shall either proceed with parole or rescind the parole and
extend the presumptive presumption parole release date, from the
date of the grant of parole. However, the time the inmate served subsequent to
the grant of parole shall not be counted in the extension. A new interview
date will be scheduled as necessary.
Specific
Authority 947.07 FS. Law Implemented 947.13, 947.168 FS. History- New
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
subsection 23-21.015(12) and subsection 23-21.016(2), F.A.C. Should any
person who has been voted an effective parole release date, become the subject
of inmate disciplinary or classification proceedings, or become the subject of
criminal arrest, information or indictment, or be terminated from work release
for cause or should the release plan prove unsatisfactory prior to actual
physical release from the institution of confinement, or new information is
acquired which was not available at the time of the effective parole release
date interview, any Commissioner has authority to postpone his release date.
(a) For inmates convicted on or before April 19, 1982,
their release date may be postponed for 30 days. On or before the 31st day, the
Commission shall either parole the inmate or cause a parole examiner to conduct
a rescission hearing on the matter of the infraction(s), new information, acts
or unsatisfactory release plan, as charged.
(b) For inmates convicted on or after April 20, 1982,
their release date may be postponed for 60 days. On or before the 61st day, the
Commission shall either parole the inmate or cause a parole examiner to conduct
a rescission hearing on the matter of the infraction(s), new information, acts
or unsatisfactory release plan, as charged.
(2) Following the order of postponement, notice of the
rescission hearing shall be provided to the inmate. The rescission hearing
shall be conducted by the Commission, a Commissioner, or a duly authorized
representative of the Commission.
(3) Should new information become available prior to
the rescission hearing that is pertinent to the postponement, the Commission
may proceed with parole and void the postponement if:
(a) Information is received that a disciplinary
report(s) has been overturned or become invalid,
(b) An out-of-state plan acceptance is received,
(c) A new plan is received by the Commission that is
deemed acceptable, or
(d) Other new information is received regarding the
postponement issue(s).
(4)(2) At the rescission such hearing the
inmate shall be afforded all due process safeguards required by the Supreme
Court of Florida case of Demar vs.
Wainwright, 354 So. 2d 366 (Fla. 1977) and shall be properly notified of
the same prior to said hearing. The following rights shall be explained to
the inmate regarding the rescission hearing:
(a) To appear and speak in behalf of his own defense,
(b) The opportunity to be represented by counsel,
either retained or appointed, provided that such appointment is made consistent
with the guidelines of the United States Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778,
(c) To examine and have disclosed for examination, all
evidence offered against him at the hearing,
(d) To secure by subpoena and subpoena duces tecum and
present at the hearing, persons and documents desired for defense, provided
that the Commission is notified in writing, at least seven days prior to the
hearing of the names, addresses, location, nature and description of said
persons or documents,
(e) To confront and cross-examine all witnesses
offered against him, unless the Commission or member thereof conducting the
hearing finds good cause not to allow the same. Good cause shall be established
in writing and provided to the inmate.
(5) Following the rescission hearing, the Commission
shall determine whether good cause has been established to rescind parole. One
of the following actions shall then be taken:
(a) Parole. If the prior effective date has not
passed, the Commission shall proceed with parole. If the prior effective parole
release date has passed, the Commission shall rescind the grant of parole,
vacate the prior effective parole release date, and establish a new effective
parole release date. New conditions to the parole may be added at this time.
(b) Extend. The Commission shall rescind the grant of
parole, vacate the prior effective parole release date, and extend the
presumptive parole release date from the date of grant of parole. The time
served by the inmate subsequent to the grant of parole shall not be counted in
the extension. In this case, a new interview date shall be set.
(c) Decline. The Commission shall rescind the grant of
parole, vacate the prior effective parole release date, and decline to
authorize parole in accordance with Section 947.18, F.S. In this case all time
frames and procedures outlined in Rule 23-21.015, F.A.C., shall be followed.
Specific
Authority 947.07 FS. Law Implemented 947.13, 947.1745 FS. History–New
23-21.020 Early Termination of Parole.
(1) The Commission may terminate the period of parole
at any time it is satisfied jurisdiction has been retained for sufficient
length of time to evidence satisfactory rehabilitation. The Department of
Corrections Secretary may request early termination of parole by
written recommendation to the Commission to include a report from the supervising
officer evidencing the justification for the recommendation and the
counter-signature endorsing the recommendation by the parole officer’s
supervisor which recommendation will be considered by the Commission.
(2) The Commission shall be notified and must concur
in authorizing any
Specific
Authority 947.07 FS. Law Implemented 947.24, 947.13 FS. History- New
23-21.021 Warrant and Arrest.
(1) A warrant for the arrest of a parolee or
releasee shall be issued only by a member of the Commission. The decision
to issue a warrant shall be based on evidence which indicates that there
may be probable cause or reasonable grounds to believe that a parolee or
releasee has violated the conditions of the parole or compulsory
conditional release. The decision shall also be based on adequate
evidence which indicates a probable serious or repeated pattern of violation of
parole or compulsory conditional release. The issuance of a warrant
is discretionary and will depend on the facts of the individual case.
(2) Warrant All warrant requests will be
reviewed by Commission staff of the Commission for sufficiency of
information, and if found sufficient, staff will submit the warrant request
to a Commissioner will be submitted to a member of the Commission
for a decision on the warrant request. Authority is delegated to the
Commission’s revocation staff to concur with the Department of
Corrections when a violation of parole is reported by the Department of Corrections
with the recommendation to continue supervision and a violation warrant is not
requested. This delegation of authority is further limited to reports of
violation of a technical or misdemeanor nature and does not apply to reports of
felony arrests or violation of special conditions, except monetary conditions
where there is no apparent ability to pay.
(3) Should a reviewing Commissioner elect, a warrant
request may be submitted to the Commission for a decision. Commission staff
may elect to docket warrant requests for a Commission decision with approval of
the Revocation Administrator. In the event a request for a warrant is denied,
the denial may be determined only by a Commissioner or panel of no fewer than
two Commissioners and the reasons for the denial shall be provided to the
requester.
(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 Cases
who have been identified as absconders will be entered into the Florida Crime Information Center. The
Commission has the authority If necessary, the Commission may elect
to pursue extradition of alleged violators from other jurisdictions.
(5) 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.
Specific
Authority 947.07, 947.22 FS. Law Implemented 947.22, 947.23 FS. History–New
23-21.022 Revocation of Parole and Compulsory
Conditional Release; 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 or
compulsory conditional release violator will be provided a preliminary
hearing. The purpose of the preliminary hearing is will be to determine if there is may
be probable cause to believe that a violation of parole terms
or conditions of the parole or compulsory conditional release has occurred.
(2) Prior to the preliminary hearing, an interview
with the alleged violator will be held at which time an explanation of all
rights and procedures will be afforded. The interview and preliminary hearing
can be held by a Commission representative, such as a parole examiner, provided
such representative is neutral and detached.
(3) The preliminary hearing will be held in or near
the community where the violation is alleged to have occurred or where the
parolee or releasee has been taken into custody on the
Commission’s warrant.
(4) For the preliminary hearing, the parolee or
releasee shall be afforded the following rights:
(a) The opportunity to be present at the hearing and
to present evidence in the parolee’s or releasee’s own behalf
including the securing of witnesses and evidence by subpoena.
(b) The opportunity to have disclosed the evidence
which shall be presented at the hearing.
(c) The opportunity to confront and cross-examine
witnesses who may give adverse testimony.
(d) The opportunity to be represented by counsel
provided by the parolee’s or releasee’s own initiative or by
appointed counsel should the parolee or releasee qualify for such
appointment as set forth in the guidelines enunciated in Gagnon v. Scarpelli, 411 U.S. 778.
(5) Prior to the preliminary hearing, the parolee or
releasee may elect to waive such hearing, provided such waiver is executed
in writing and follows a full explanation of all rights, procedures, and
possible consequences. The parolee or releasee may also request
postponement of the preliminary hearing, such postponement and the reasons
thereof being reflected in the record. Should the parolee or releasee
fail to contact the Commission and request a hearing upon the disposition of
local charges resulting in a sentence to incarceration, the parolee or
releasee has waived his right to a preliminary hearing.
(6) At least 7 days prior to the preliminary hearing,
the parolee or releasee shall be informed in writing of the date, time,
and location of the hearing. The parolee or releasee 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.
(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 or releasee
within 30 days following the hearing.
(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.
(9) Should the Commission representative not find
probable cause, that representative is authorized to have the parolee or
releasee released on his or her own recognizance pending final action of the
Commission.
(9)(10) 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 compulsory conditional release
supervision, the release and discharge from further supervision of the
parolee or releasee or the return of the parolee or releasee for a
final revocation hearing.
(10)(11)
Any parolee or releasee who has been arrested pursuant to a Commission
warrant may request and shall be provided a hearing on the matter of release
on recognizance bond 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 or releasee. A Commissioner,
or Commission representative with the approval of the Director of Field
Services/ Revocation or his designee, is authorized to order a
parolee or releasee released on his recognizance. However, the parolee or
releasee must sign a written statement agreeing:
(a) To waive all time constraints to conduct the
revocation hearing;
(b) To abide by all conditions of release previously
imposed by the Commission;
(c) To abide by any special conditions imposed at the
time of release on recognizance, and
(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 or releasee.
(11)(12) 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 or compulsory conditional release violator is being detained. The
Commission may request The notice shall 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 recognizance, 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.
(12)(13) Final Hearing. The parolee or releasee 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 or releasee shall be afforded for such hearing as follows:
(a) The opportunity to be present for the final
revocation hearing.
(b) The opportunity to present evidence in his or her
own behalf, including witnesses and evidence secured by subpoena or subpoena
duces tecum.
(c) The opportunity to receive, prior to the hearing,
disclosure of evidence that will be presented at any final hearing.
(d) The opportunity to confront and cross-examine any
adverse witnesses.
(e) The opportunity to be represented by counsel,
either retained or appointed, provided that such appointment is made consistent
with the guidelines of the United States Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778.
(13)(14) Any final hearing can be waived by the parolee or
releasee after an explanation of all rights and possible consequences of
waiver. The waiver shall be in writing and can be executed before a member of
the Commission or the Commission’s designated representative. The parolee
or releasee may withdraw the waiver by executing a withdrawal of waiver
form and forwarding to the Commission headquarters 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 or releasee at the
time of the execution of the waiver. Upon receipt of 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.
(14)(15) The parolee or releasee is entitled to request
that his final revocation hearing be postponed or continued, upon a showing of
good cause being made. 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 on the
Commission’s motion provided the record reflects good cause for such
continuance.
(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.
(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 releasee, 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 or
releasee 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.
(17) Subpoenas and subpoenas duces tecum for the
parolee and State shall be issued by the Commission’s duly authorized
representative for both the preliminary and final revocation hearings. Based
on evidence presented at the hearing, the person or persons conducting the
hearing shall make findings of fact regarding the alleged violations, report
that to the Commission and the Commission may enter an order revoking the
parole or compulsory conditional release, reinstating the parolee or releasee
to supervision or other such 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 or releasee has committed one or more
violations, the Commission may elect to order the parolee or releasee returned
to supervision with a new term not to exceed statutorily prescribed limits and
may elect to establish new conditions of the parole or release, provided the
parolee or releasee 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 or releasee and his defense attorney, unless such notification
is waived by the parolee or 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.
(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) Inquiry shall be made of the parolee’s
ability to retain private counsel. A conclusion shall be reached by the person
or persons responsible for conducting the hearing as to the parolee’s
ability to retain counsel and time shall be permitted for the parolee to secure
such if an affirmative conclusion is reached.
(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 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 refused, the grounds for refusal
shall be stated succinctly in the record. Gagnon, supra, at 790-791.
(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.
(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.
(21)(18) Upon a finding that the parolee or releasee
did commit one or more violations, the Commission may order the parolee or
releasee placed in a community control program. Placement in community
control shall be utilized by the Commission, in its judgment, for parole or
release 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) The proven violation or violations;
(b) The term of community control which may exceed the
original term of parole or release but not exceed statutorily prescribed
limits. This term may be reduced by subsequent order of the Commission;
(c) The new term of parole or release which
shall not exceed statutorily prescribed limits nor be less than the term of
community control;
(d) Standard community control conditions ordered to
be applicable;
(e) Special community control conditions based upon
individual case study of the parolee or releasee; and
(f) Additional parole or release conditions, if any,
in the event the community control term is less than the resulting parole or
release term
(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.
(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 or revoked. The
following information should be considered in making that determination:
(a) The preponderance of available evidence suggests
that the parolee would pose a danger to public safety or would likely engage in
new criminal conduct if reinstated to parole;
(b) The parolee has previous violations of the
conditions of his parole under the current sentence;
(c) The parole 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.
(24)(19) Should the Commission decide to revoke the parole or
compulsory conditional release, the parolee or releasee 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 shall be reflected in the Commission’s
order.
(20) 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 or
compulsory conditional release 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.
(25)(21) If the Commission’s decision is to revoke the
parole or compulsory conditional release, the parolee or releasee shall
be scheduled for an interview by a Commission representative within six months
from the date of the Commission’s order revoking parole revocation,
provided that the parolee or releasee has not received a commitment to the
Department of Corrections. 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 or
releasee 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.
(22) The person or persons conducting the hearing may
elect to receive information following the revocation hearing provided the
parolee or releasee 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) Subpoenas and subpoenas duces tecum for the
parolee or releasee and State shall be issued by the Commission’s duly
authorized representative for both the preliminary and final revocation
hearings.
(24) 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 or
releasee at both hearings. In the event the parolee or releasee desires counsel
and has not retained such, the following procedure shall apply:
(a) Inquiry shall be made of the parolee’s or
releasee’s ability to retain private counsel. A conclusion shall be
reached by the person or persons responsible for conducting the hearing as to
the parolee’s or releasee’s ability to retain counsel and time
shall be permitted for the parolee or releasee to secure such if an affirmative
conclusion is reached.
(b) If it is concluded that the parolee or releasee is
unable to secure retained counsel by reason of indigency or other valid
reasons, then the Commission shall 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 refused, the grounds for
refusal shall be stated succinctly in the record. Gagnon, supra, at 790-791.
(25) Release on Own Recognizance:
(a) At a scheduled final revocation hearing, a
Commissioner or Commission representative can place an alleged parole violator
on ROR when the final hearing is postponed or continued.
(b) During the conduct of the final revocation
hearing, the hearing Commissioner or Commission representative 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 conduct of 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 place the parole violator 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.
Specific
Authority 947.07 FS. Law Implemented 947.23 FS. History–New
NAME OF PERSON ORIGINATING PROPOSED RULE: Frederick B.
Dunphy, Vice-Chairman,
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED
RULE: By vote of the Florida Parole Commission
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 18,
2005
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN
FAW: January 13, 2006