Update processes in rules to conform to current statute and agency practices.

 

FLORIDA PAROLE COMMISSION

RULE NO.: RULE TITLE:
23-21.002: Definitions
23-21.004: Commission Meetings
23-21.007: Salient Factor Scoring
23-21.013: Biennial Interview Procedure
23-21.014: Special Interviews
23-21.0155: Extraordinary Interview and Review Procedures
23-21.017: Review of Term and Conditions of Parole
23-21.019: Parole Rescission
23-21.021: Warrant and Arrest
23-21.022: Revocation of Parole; Preliminary Hearings; Final Hearings
PURPOSE AND EFFECT: Update processes in rules to conform to current statute and agency practices.
SUMMARY: The proposed changes will clarify and update those rules where actual practice and statute are nonconforming.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The agency has no regulatory authority over any businesses and neither imposes or collects any fees.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 947.07 FS.
LAW IMPLEMENTED: 947.002; 947.06; 947.13; 947.165; 947.174; 947.1745; 947.18; 947.19; 947.20; 947.22; 947.23 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sarah Rumph

THE FULL TEXT OF THE PROPOSED RULE IS:

 

23-21.002 Definitions.

The following definitions are provided for the clarification of all terms used throughout Chapter 23, F.A.C.:

(1) through (47) No change.

(48) No change.

(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) as defined by the Department;

(b) through (e) No change.

(49) through (51) No change.

Rulemaking Specific Authority 947.07, 947.149, 947.174(5) FS. Law Implemented 947.1745 FS. History–New 9-10-81, Amended 10-1-82, 8-1-83, 7-1-84, Formerly 23-21.02, Amended 7-9-87, 1-29-93, 1-5-94, 8-19-04, 8-17-06.

 

23-21.004 Commission Meetings and Victim Input.

(1) No change.

(2) A victim, relative of a minor who is a victim, relative of a homicide victim, victim representative or victim advocate (hereinafter referred to as victims) shall receive advance notification any time a parole case is placed on the docket for Commission action regarding that inmate. Victims shall be notified at the most current address available to the agency.

(3) Victims of the crime committed by the inmate, or a victim’s representative, shall be permitted to make an oral statement or submit a written statement regarding their views as to the granting, denying, or revoking of parole.

(4) Victims addressing the Commission regarding a particular inmate or parolee are allowed a reasonable time as designated by the Chair to make a presentation to the Commission at a Commission meeting. Other interested parties may also speak on behalf of victims since Commission meetings are public meetings.

(5) 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 does not exceed the allotted time.

(6) All materials submitted by victims to the Commission will be included in the inmate file and shall be stamped confidential and excluded under the public records law.

(7) 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.

(8) Victims who appear at a meeting or submit a written statement will be notified of action taken by the Commission at the meeting or within a reasonable period of time after the meeting.

(9) Victims who provide written or verbal testimony at the Commission meeting shall be advised that any information submitted at Commission meetings shall become public record.

(10) Capturing of images or audio through any means, including cell phones, of the Commission meetings is prohibited without specific, express, written permission of the Chair at least seven (7) days prior to the Commission meeting.

(11) (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.

(12)(3) No testimony is entertained will be allowed 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. The public is welcome to attend and observe the meetings.

(13)(4) In that the inmate may not be present at Commission meetings, no testimony is entertained will be allowed at those meetings regarding rescission matters, unless stipulated on the record at the time of the rescission hearing and with the prior written approval of the Chair. The public is welcome to attend and observe the meetings.

Rulemaking Specific Authority 947.06, 947.07 FS. Law Implemented 947.06, 947.149, 947.16, 947.172, 947.174, 947.173 FS. History–New 9-10-81, Formerly 23-21.04, Amended 1-26-93, 1-5-94, 8-16-94, 8-17-06.

 

23-21.007 Salient Factor Scoring.

Salient factors (1) through (3), (5), and (6) shall be calculated on the inmate’s criminal record.

(1) through (2) No change.

(3) TOTAL TIME SERVED IMPOSED IN YEARS:

	Two or more years served imposed	=	2 Points
	Up to two years served imposed	=	1 Point
	No time previously served imposed	=	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 imposed for all prior incarcerations is 2.0 years or longer.

(c) Score 1 if the total time served imposed for all prior incarcerations is less than 2.0 years but more than 60 days.

(d) Score 0 if there are no prior incarcerations imposed.

(e) Do not count time imposed 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) through (7) No change.

Rulemaking Authority 947.07, 947.165 FS. Law Implemented 947.002, 947.13, 947.165 FS. History–New 9-10-81, Amended 10-1-82, 8-1-83, 7-1-84, Formerly 23-21.07, Amended 1-26-93, 1-5-94, 8-17-06, 12-30-08, 3-31-10.

 

23-21.013 Subsequent Interview Procedure.

(1) No Change.

(a) No Change.

(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., as stated in §947.174, F.S., and whose presumptive parole release date is more than 7 5 years after the date of the initial interview, the Commission shall schedule a subsequent interview to take place within 7 5 years after the initial interview and at least every 7 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. The date may be set at any time up to and including 7 years.

(2) through (7) No change.

Rulemaking Specific Authority 947.07, 947.174 FS. Law Implemented 947.174 FS. History–New 9-10-81, Amended 8-1-83, Formerly 23-21.13, Amended 1-26-93, 1-5-94, 8-17-06.

 

23-21.014 Special Interviews.

(1) Eligibility: A parole eligible inmate may be considered for a special interview for the following reasons:

(a) The saving of a life or the protection of a Department employee from assault or injury as verified by the Department;

(b) Providing information to the administration that assists in preventing an escape or results in the recapture of an escaped inmate, as verified by the Department;

(c) Assisting law enforcement agencies by providing relevant information for investigations or participating in requested activities that may result in arrest or prosecution, when recommended by the state attorney or law enforcement agency; or

(d) For good cause in exceptional circumstances.

(2)(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.

(3)(2) The recommendation of the parole examiner shall be forwarded to the Commission and a quorum shall inform the inmate in writing of its decision regarding the presumptive parole release date within ninety days of the special interview.

(4)(3) The Department of Corrections may recommend a special interview or mitigation of an inmate’s presumptive parole release date. If the Department makes such a the recommendation for a special interview, staff will docket that recommendation for the Commission’s consideration.

Rulemaking Specific Authority 947.07 FS. Law Implemented 947.174 FS. History–New 9-10-81, Amended 8-1-83, Formerly 23-21.14, Amended 1-26-93, 1-5-94, 8-17-06.

 

23-21.0155 Extraordinary Review Procedures.

(1) No change.

(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, setting the date of release, and outlining the term and conditions of parole.

Rulemaking Specific Authority 947.002, 947.07 FS. Law Implemented 947.18 FS. History–New 8-1-83, Formerly 23-21.155, Amended 8-17-06.

 

23-21.017 Review of Term and Conditions of Parole.

(1) through (4) No change.

(5) The Office of the Commission Clerk Release Services Supervisor is authorized to issue a corrected 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.

(6) through (7) No change.

Rulemaking Specific Authority 947.07, 947.20 FS. Law Implemented 947.19, 947.20 FS. History–New 9-10-81, Amended 10-1-82, Formerly 23-21.17, Amended 1-26-93, 1-5-94, 8-17-06.

 

23-21.019 Parole Postponement and Rescission.

(1) Postponement: Any Commissioner has authority to postpone any inmate’s effective parole release date 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 based on the criteria set forth in subsection 23-21.015(12), F.A.C..

(a) through (b) No change.

(2) Rescission: Following the order of postponement for a rescission hearing, notice of the rescission hearing shall be provided to the inmate prior to the date the hearing is scheduled. The notice shall specifically state the reasons for the Commission’s decision to postpone the parole date. The rescission hearing shall be conducted by the Commission, a Commissioner, or a duly authorized representative of the Commission.

(3) No change.

(4) At the rescission 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 inmate may waive his rights to a rescission hearing. The following rights shall be explained to the inmate regarding the rescission hearing:

(a) through (e) No change.

(5) The rescission hearing shall be scheduled within fourteen (14) days of the date the Order for a Rescission Hearing is signed by the Commission.

(6) The hearing may be continued or postponed due to the inability of any party or witness to attend or for other good cause (for example, new disciplinary reports, state of emergency, prison lock-down, etc.).

(7) New disciplinary reports received after the Order of Postponement, but prior to the date of the hearing shall be considered at the recission hearing, after re-noticing the inmate.

(8) The examiner is not required to find the inmate guilty or not guilty at the rescission hearing, but to determine if any circumstances exist beyond the documentation which provided the basis of the Commission’s decision to postpone the parole.

(9) If the parole has been postponed due to an unsatisfactory release plan, the examiner should receive testimony from the inmate and any witnesses as to if an alternate plan exists which may be presented to the Commission for consideration.

(10)(6) 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) through (c) No change.

Rulemaking Authority 947.07 FS. Law Implemented 947.13, 947.1745 FS. History–New 9-10-81, Amended 10-1-82, 8-1-83, Formerly 23-21.19, Amended 1-26-93, 1-5-94, 8-17-06, 3-31-10.

 

23-21.021 Warrant and Arrest.

(1) through (5) No change.

(6) Emergency Warrants.

(a) through (c) No change.

(d) Should an emergency warrant be issued and a dismissal of the emergency warrant is requested, only by the revocations administrator or his designee, the signing Commissioner or, without the approval of the Chair, or Commission representative authorized to execute warrants, with the approval of the Chair, is authorized to dismiss the warrant if the Commissioner no longer believes that the parolee presents a danger to the public.

Rulemaking Authority 947.07, 947.22 FS. Law Implemented 947.22, 947.23 FS. History–New 9-10-81, Amended 7-1-84, Formerly 23-21.21, Amended 1-26-93, 1-5-94, 8-17-06, 3-31-10.

 

23-21.022 Revocation of Parole; Preliminary Hearings; Final Hearings.

(1) through (18) No change.

(19) During the course of a final revocation hearing, the parolee has a right to speak and present arguments on his/her behalf the person or persons conducting the hearing may entertain any arguments of counsel or the parolee, or other such matters. The person or persons conducting the hearing may elect to rule on legal such matters during the course of the hearing or may elect to withhold ruling pending consultation with Commission counsel or individual staff members. Arguments of counsel of a legal nature must be reduced to writing. If possible, written legal arguments should be presented prior to final revocation hearings. If the person conducting the hearing elects not to address arguments of counsel or the parolee during the course of the hearing, such shall be made known to the interested parties. In the event a decision is made during the course of the final revocation hearing, such decision shall be reflected in the record, and then reviewed by the Commission. Pursuant to the United States Supreme Court’s decision in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998), the Commission may consider evidence that has been excluded in a criminal proceeding as the result of the application of the federal exclusionary rule.

(20) through (28) No change.

Rulemaking Authority 947.07 FS. Law Implemented 947.23 FS. History–New 9-10-81, Amended 10-1-82, 7-1-84, Formerly 23-21.22, Amended 5-10-87, 1-26-93, 1-5-94, 8-17-06, 3-31-10.

NAME OF PERSON ORIGINATING PROPOSED RULE: Sarah Rumph
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Tena Pate
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 25, 2012
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 5, 2012