Youthful Offender Program Participation

DEPARTMENT OF CORRECTIONS

RULE NO.: RULE TITLE:
33-601.226: Youthful Offender Program Participation

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 37 No. 35, September 2, 2011 issue of the Florida Administrative Weekly.

(1) through (4) No change.

(5) Advancement to Phase III.

(a) A The Bureau of Classification and Central Records or designee will review inmates and determine if they meet the criteria for recommendation for modification of sentence. Review will include consideration of the potential rehabilitative benefits that may be achieved through the inmate’s participation in Phase III. No inmate has a right to recommendation for modification of sentence. Institutional classification staff is authorized to notify the Bureau of Classification and Central Records or designee of an inmate who meets the criteria for advancement to Phase III as set forth in this rule. The sentencing court shall be notified in writing by the Bureau of Classification and Central Records or designee requesting approval for the inmate to participate in the extended day program such that modification of sentence may be achieved. The state attorney shall, at the same time, be notified that the department is seeking such approval from the court.

1. If the sentencing court approves the department’s request that the inmate participate in the extended day program such that a potential recommendation for modification of sentence may be achieved per subsection (6) of this rule, the Bureau of Classification and Central Records or designee will note on the record that the sentencing court has approved this possibility. Institutional classification staff will notify the inmate of the court’s response. The 180 day period described in subparagraph (6)(a)1. below commences upon placement.

2. If the sentencing court disapproves of the inmate's participation in the extended day program such that the inmate may achieve modification of sentence, the inmate shall complete incarceration pursuant to the terms of the commitment order. The Bureau of Classification and Central Records or designee will note on the record that the sentencing court has denied the inmate the possibility of sentence modification. Institutional classification staff will notify the inmate of the court’s response.

(b) If not previously identified by the department and approved for participation by the sentencing court, a Phase II inmate wishing to participate in Phase III must apply for advancement using Form DC6-188, Inmate Promotional Request, and an evaluation by the ICT will be conducted to determine whether the inmate is eligible for advancement to Phase III. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of the form is September 2011.

(b) If approved by the ICT for advancement, the inmate shall be eligible for recommendation for modification of sentence pursuant to section (6) of this rule. No inmate has a right to recommendation for modification of sentence. Institutional classification staff are authorized to notify the Bureau of Classification and Central Records or designee of an inmate who meets the criteria for recommendation for modification of sentence will review the inmate for eligibility for a potential recommendation for modification of sentence under subsection (6) of this rule. If not deemed eligible, the inmate shall remain in Phase III, subject to the provisions of subsection (4) of this rule, completing incarceration pursuant to the terms of the commitment order. Form DC6-188 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is September, 2011.

(6) Recommendations for Modification of Sentence.

(a) The following will result in an evaluation by the Bureau of Classification and Central Records or designee of the inmate’s eligibility for recommendation to the court for a modification of sentence at any time prior to the scheduled expiration of sentence as provided in Section 958.04(2)(d), F.S.:

1. Successful Potential for successful participation in all phases of the youthful offender extended day program, to include participation in Phase III of the extended day program for a minimum of 180 consecutive days; and

2. No change.

(b) Successful participation in the extended day program is defined as:

1. Satisfactory gain time ratings in Phase III for a minimum of 180 days;. Those days for which the youthful offender does not participate satisfactorily shall be repeated. Any break in service of these days for reasons not in the inmate’s control will be considered when determining days to be repeated.

2. through 4. No change.

(c) No change.

(d) One or more of the following will render the inmate ineligible for recommendation of a sentence modification to the court:

1. through 4. No change.

5. Sentenced as a habitual offender pursuant to Section 775.084, F.S.; or

6. Currently serving mandatory portion of a sentence pursuant to Section 775.082, F.S.; or

7. The inmate has previously been granted modification of sentence under the provisions of this rule.

(7) Extended Day Program Assessment. Each inmate shall be required to participate in Phase III in a satisfactory manner for a minimum of 180 consecutive days in order to successfully complete the program.

(a) The review board shall continually assess the inmate’s participation in the program and recommend status assignments. Should an inmate fail to successfully perform as set forth in subparagraphs (6)(b)2. through 4. of this rule at any time during Phase III, days served successfully previous to the unsuccessful performance will not be counted toward the minimum 180 day successful participation requirement, which may include a recommendation to repeat days for which an overall unsatisfactory report was received.

(b) Inmates who have successfully participated for the required time period but who are awaiting release by the sentencing court or other releasing authority shall remain subject to the rules of the department and the extended day program. Failure to adhere to the administrative rules of the department shall these rules may be grounds for removal from consideration for recommendation for modification of sentence the program, withdrawal of the department’s request to the court for modification of the inmate’s sentence, or a request by the department to rescind modification of sentence. Form DC6-194, Order Rescinding Order Modifying Modification of Sentence, will be completed by the Bureau of Classification and Central Records or designee and provided to the court with the request to rescind modification of sentence. Form DC6-194 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is September, 2011.

(8) Removal from Consideration for Recommendation.

(a) An inmate shall can be removed from the program for health reasons, expiration of sentence, or when such removal is in the best interest of the inmate or the security of the institution and in accordance with section 958.11, F.S. However, if the inmate has completed the minimum requirements prior to removal, and such removal is not due to the inmate’s receipt of a disciplinary report or corrective consultation, the inmate shall still be considered for recommendation for modification of sentence.

(b) An inmate shall be removed from consideration for recommendation for modification of sentence for behavioral, performance, or disciplinary reasons If removal is for behavioral or disciplinary reasons, the inmate will not be reconsidered for a recommendation for modification of sentence.

(9) Sentence Modification Process.

(a) Inmates who have satisfactorily participated in the extended day program and who meet the eligibility criteria in section (6) of this rule will be recommended for sentence modification.

(b) If eligible, institutional Institutional classification staff shall notify the Bureau of Classification and Central Records or designee of those inmates expected to achieve successful participation and forward a completed Form DC6-195, Defendant’s Waiver of Rights in Modification of Sentence, to the Bureau of Classification and Central Records or designee no earlier than 60 days but no later than 45 days prior to the inmate’s expected completion of the program. The waiver shall be forwarded no earlier than five days prior to the expected completion of the 180-day requirement. Form DC6-195 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. The effective date of this form is September, 2011.

(c) The Bureau of Classification and Central Records or designee shall approve the ICT’s recommendation, disapprove the recommendation, or refer the matter back to the ICT for additional information within 5 working days from receipt of the ICT’s recommendation.

(d) If approved by the Bureau of Classification and Central Records or designee, a cover letter reporting that the inmate is participating satisfactorily in the program and is expected to complete will be sent to the community corrections intake office within the circuit of the sentencing court by the Bureau of Classification and Central Records or designee within 5 three 3 working days from approval of the ICT’s recommendation the receipt of an e-mail or telephone call from the facility that the inmate is expected to complete the program.

(e) through (h) No change.

(i) If the sentence modification order is not received within 35 5 working days after the request is made inmate completes the program, the Bureau of Classification and Central Records or designee shall notify by email or by telephone the community corrections intake office that submitted the sentence modification packet to the court. The community corrections intake office staff shall contact the sentencing judge to determine the status of the request for sentence modification. Community corrections intake staff shall notify the Bureau of Classification and Central Records or designee of the status of the request for sentence modification. If the community corrections intake office staff member obtains the approved DC6-193, the staff member shall forward the form to the Bureau of Admission and Release, and the processes enumerated in paragraphs (9)(g) through (9)(h) of this rule shall be followed.

(j) If the sentencing court disapproves the sentencing modification, the community corrections intake office shall notify the Bureau of Classification and Central Records or designee. The Bureau of Classification and Central Records or designee shall notify the ICT at the institution housing the inmate. The ICT shall notify the inmate of the court’s denial, and the provisions of paragraph (9)(k) of this rule shall be followed.

(k) If modification of sentence is denied by the sentencing court, the Bureau of Classification and Central Records or designee will approve transfer of the inmate to an appropriate facility. If the inmate is recommended for work release, the SCO will review the recommendation pursuant to the criteria set forth in Rule 33-601.602, F.A.C., and approve if appropriate. The ICT shall notify the inmate of the court’s denial.

(10) No change.

Rulemaking Specific Authority 944.09, 958.04, 958.11 FS. Law Implemented 944.09, 958.04, 958.11, 958.12 FS. History–New 10-11-95, Amended 9-11-97, Formerly 33-33.013, Amended 3-13-01, Formerly 33-506.106, Amended 4-2-02, 2-19-03, 9-16-04,________.