The purpose is to update definitions to terms used in current operations. The effect will be to simplify and make the rules easier to understand.

 

FLORIDA COMMISSION ON OFFENDER REVIEW

RULE NO.: RULE TITLE:

23-21.002Definitions

PURPOSE AND EFFECT: The purpose is to update definitions to terms used in current operations. The effect will be to simplify and make the rules easier to understand.

SUMMARY: An update of definitions to terms used in current operations to simplify and make the rules easier to understand.

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 conducted an economic review of the revisions to the rule and determined that the impact or regulatory cost, if any, will not exceed any review of the revisions to the rule and determined that the impact or regulatory cost, if any, will not exceed any one of the economic analysis criteria in a SERC as set forth in s. 120.541(2)(a), FS.

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, 947.20, FS.

LAW IMPLEMENTED: 947.002, 947.16, 947.165, 947.172, 947.173, 947.174, 947.1745, 947.1746, 947.21, 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.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: . If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Rana Wallace, General Counsel, Florida Commission on Offender Review, 4070 Esplanade Way, Tallahassee, Florida 32399, [phone], [e-mail].

 

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) “Aggravate” means to add a number of months to established number of months selected from 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 “bBreaking and eEntering” are defined as they are found in the Florida Statutes on the dates the crimes were are committed.

(4) “Commission Chair” means the Chair of the Florida Commission on Offender Review who, as selected by the Governor and Cabinet, is authorized to conduct agency business and call and preside over meetings of the Commission meetings.

(5) “Commission investigator,” which is synonymous with “parole examiner,” “hearing examiner,” and “parole hearing examiner,” means a Commission employee authorized to:

(a) Conduct an initial, subsequent, 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.

(6) (5) “Commission mMeeting” or “meeting” means a publically noticed called public meeting of the Commission, including business meetings.

(7) (6) “Commission Secretary” means the Commissioner, as selected by the Governor and Cabinet, and whom the Commissioners select from their number to serve as secretary for a period of one year or until a successor is elected and qualified, and  elected to a one year term or until a successor is elected by the Commission, whose duties include encompass serving notice and publishing information concerning Commission business meetings, preparation and distribution of the agendas, maintenance of the official minutes, and recorder of the minutes of at all scheduled and emergency Commission business meetings.

(8)(7) “Commission Vice-Chair” means the duly selected Commission Vice-Chair of the Florida Commission on Offender Review who, as selected by the Governor and Cabinet, is authorized to call and preside over meetings of the Commission to serve in the absence of the Commission Chair.

(9)(8) “Competent and pPersuasive” 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) County jail time credit means the time awarded by the Court for time spent in custody prior to sentencing.

(10) “Conditional mMedical rRelease” 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) “County jail time credit” means the time awarded by the court for time spent in custody prior to sentencing.

(12)(11) “Criminal eEpisode” means the commission of one or more criminal offenses ending with the last 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.

(13)(12) “Department” means the Florida Department of Corrections.

(14)(13) “Early tTermination of pParole” means a Commission Order of Discharge from the term and conditions of parole prior to the expiration date of parole as set forth on the pParole cCertificate.

(15)(14) “Effective pParole rRelease dDate (EPRD)” means the actual parole release date, when authorized by the Commission as set forth in Sections 947.1745, and 947.1746, and 947.18, 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.

(16)(15) “Element of a cCrime” means that which was specifically contained in the statutory definition of the crime on the date the crime was committed.

(17)(16) “Escape” is defined as it was found in the Florida Statutes on the date the crime was committed.

(18)(17) “Exceptional cCircumstances” are those circumstances which are out of the ordinary.

(19)(18) “Extend” means to increase the presumptive parole release date.

(20)(19) “Extraordinary rReview” means a further examination by the Commission of the entire record in an inmate’s case following the Commission’s decision declining to authorize an eEffective pParole rRelease dDate.

(21)(20) “Final rRevocation hHearing” 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.

(22)(21) “Good cCause” means factors legally sufficient that justify action taken and which are not arbitrary, capricious, irrational, or unreasonable.

(23)(22) “Individual pParticularity” means case-specific, factual material or references related only to the inmate, including but not limited to the circumstances of the offense and unsatisfactory institutional conduct concerned.

(24)(23) “Initial dDate of cConfinement in eExecution of the jJudgment of the cCourt” 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.

(25)(24) “Inmate” means any person under Florida Court cCommitment 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.

(26)(25) “Juvenile sSanction” means a court-imposed punishment on a minor for an act which, if committed by an adult, would have been criminal.

(27)(26) “Matrix tTime rRange” 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 the number of months used to establish the the matrix time range or the previously established presumptive parole release date. 

(29) “New iInformation” means knowledge acquired subsequent to the initial interview or the establishment of the presumptive parole release date.

(30) “Nullification of pParole” means the Commission action voiding the grant of parole when an inmate refuses to accept parole.

(31) PPRD means “Ppresumptive parole release date (PPRD)” means the tentative parole release date, when authorized by the Commission as set forth in Section 947.172, F.S.

(32) “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) “Parolee” means an inmate who has been paroled placed on parole.

(34) Parole examiner, which is synonymous with hearing examiner, means a Commission employee authorized to:

(a) Conduct an initial, subsequent, 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.

(34)(35) “Preliminary hHearing” 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 a violation(s) of the conditions of parole have occurred.

(35)(36) “Present cCommitment” 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, cCourt 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.

(36)(37) “Present oOffense of cConviction” 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.

(37)(38) “Prior cCriminal rRecord” means an offense or offenses which result in the imposition of a judicial sanction. Both the consummation of the criminal offense(s) and the last imposition of the judicial sanction(s) must be obtained 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.

(38)(39) “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.

(39)(40) “Quorum” means a majority of the Commission that when duly assembled is legally competent to transact business.

(40)(41) “Recidivist cCriminal fFactor” means four or more prior adult felony convictions or juvenile adjudications for felony offenses, from four or more separate criminal episodes, at least two of which resulted in a sentence of incarceration of sixty days or more.

(41)(42) “Rescission of pParole” means the withdrawal of an effective parole release date unexecuted grant of parole.

(42)(43) “Revocation of pParole” 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.

(43)(44) “Salient fFactors” 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.

(44)(45) ”Satisfactory rRelease pPlan” means a release plan that meets all of the following requirements and is approved by the Commission:

(a) A transitional housing program or 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 transitional housing program or residence and employment must not pose an undue risk to persons children under the age of eighteen.

(e) The occupants of the proposed transitional housing program or residence must not pose an undue risk to the inmate’s ability to reintegrate into society.

(f) The proposed transitional housing program or residence must not contain any firearms.

(45)(46) “Severity of oOffense bBehavior” means the statutorily assigned degree of felony or misdemeanor for the present offense of conviction.

(46)(47) “Subpoena” or “subpoena dDuces tTecum” 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.

(47) (48) “Tentative release date” means the date projected for the inmate’s release from custody by virtue of gain-time granted or forfeited pursuant to Section 944.275(3)(a), F.S.

(48) “Unsatisfactory iInstitutional cConduct” includes behavior which results in one or more of the following:

(a) A Results in processed disciplinary action actions as defined by the Department that results in the loss of gain time and/or placement in disciplinary confinement; 

(b) A Results in a pending or completed court prosecution;

(c) A 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 Tthe Commission finding that there is competent and persuasive evidence in the form of an admission against interest by the inmate; or

(e) Results in Tthe 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 rRelease” means the Department’s of Correction’s cCommunity wWork rRelease program.

Rulemaking Authority 947.07, 947.20 FS. Law Implemented 947.002, 947.16, 947.165, 947.172, 947.173, 947.174, 947.1745, 947.1746, 947.21, 947.22, 947.23 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, 2-12-13, 2-3-14, 9-25-14,                                          .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Florida Commission on Offender Review

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Melinda Coonrod, Chair, Florida Commission on Offender Review

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 12, 2016