e purpose and effect of the proposed rulemaking is to define “successful completion” of the youthful offender program for the purpose of a Departmental recommendation for sentence modification, to set forth the process by which a modification is ...

DEPARTMENT OF CORRECTIONS

RULE NO.: RULE TITLE:
33-601.226: Youthful Offender Program Participation
PURPOSE AND EFFECT: e purpose and effect of the proposed rulemaking is to define “successful completion” of the youthful offender program for the purpose of a Departmental recommendation for sentence modification, to set forth the process by which a modification is recommended, and to generally clarify the youthful offender program protocol.
SUMMARY: The proposed rule defines “successful completion” of the youthful offender program for the purpose of a Departmental recommendation for sentence modification, sets forth the process by which a modification is recommended, and clarifies the youthful offender program operational protocol.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The agency has determined that this rule will not have an adverse impact on small business and is not likely to directly or indirectly increase regulatory costs by more than $200,000 within one year of taking effect. A SERC has not been prepared by the agency. Based on analysis from the Bureau of Classification and Central Records indicating that the rule change only impacts internal operations of the Department’s youthful offender programming and would not have an impact on small business or the private sector, the rule is not expected to require legislative ratification.
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: 944.09, 958.04, 958.11 FS.
LAW IMPLEMENTED: 944.09, 958.04, 958.11, 958.12 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 RULE IS: endra Lee Jowers, 501 South Calhoun Street, Tallahassee, Florida 32399-2500

THE FULL TEXT OF THE PROPOSED RULE IS:

33-601.226 Youthful Offender Program Participation.

(1) Each institution that houses youthful offenders offender shall provide a programmatically diversified extended day of 16 hours of required inmate participation six days a week, contingent upon available resources.

(2) The schedule of events shall be developed by each warden and approved by the regional director and the Office of Institutions.

(3) Definitions. Successful participation in all phases of the youthful offender extended day program and successful completion of the offender management plan and reclassification to minimum or community custody will result in an evaluation by the ICT to determine the inmate’s eligibility for a 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. Requests for sentence modification will not be made before successful completion of the extended day program.

(a) Bureau of Admission and Release – the bureau in the central office responsible for overseeing and auditing all the processes involved with sentencing documents received from the courts and for controlling inmates’ prison commitment, coordinating release processes, and administering the department’s re-entry initiatives. After the youthful offender has successfully participated in the youthful offender program and completed the IMP as developed, a complete evaluation of the case shall be initiated. The evaluations shall include a review and summary of the following areas:

1. Disciplinary record;

2. Gain time earned, forfeited or withheld and reasons for the action taken;

3. Academic and vocational accomplishments;

4. Work assignments which would assist the youthful offender in obtaining future employment;

5. Counseling programs;

6. Substance abuse programs;

7. Other programs and objectives specifically recommended for the youthful offender; and

8. Release placement plan prepared by probation and parole office staff which will include proposed residence, employment, family ties or support systems, financial resources, other resources available to the inmate and any recommendation for continued treatment;

9. Nature of offense and length of sentence.

(b) Bureau of Classification and Central Records – the bureau in the central office responsible for the overall classification system in the department, including reception, facility, work, program, and custody assignments, disciplinary processes, population management, and maintaining active and inactive inmate records. The evaluation of the youthful offender’s eligibility for a recommendation for a modification of sentence shall be coordinated by the institutional classification staff and incorporated into a complete progress report. The completed progress report shall be reviewed and, once approved, signed by the ICT and a representative of the SCO.

(c) Review Board – the team consisting of extended day program staff, to include at least one officer of the rank of sergeant or above and a staff member directly involved in the training and instruction of youthful offenders, responsible for determining advancement through the phases of extended day program. Prior to making a recommendation for sentence modification, the inmate’s classification officer shall send a Victim Input Statement, Form DC1-701B, to the victim(s) or the victims’ family for comments regarding the release of the inmate. Form DC1-701B is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500. The effective date of this form is 2-19-03.

(d) Once the inmate has been approved by the ICT and the SCO for a recommendation for sentence modification, a request for initiation of a Youthful Offender’s Release Placement Plan, Form DC6-121, shall be made to the community corrections office in the county where the inmate plans to reside. The community corrections office in the county where the inmate plans to reside shall complete the placement release plan and return it to the requesting institution. Form DC6-121 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500. The effective date of this form is 2-19-03.

(e) The sentence modification package shall include at a minimum the following:

1. The completed release placement plan that has been verified by community corrections field staff;

2. The completed victim input statement forms;

3. A progress report with justification for sentence modification;

4. An order of modification of sentence placing defendant on probation prepared by the classification officer for the judge’s signature;

5. A completed Defendant’s Waiver of Rights to Modify Sentence and Place Defendant on Probation, Form DC3-235. Form DC3-235 is hereby incorporated by reference. Copies of this form are available from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500. The effective date of this form is 2-19-03.

(f) The completed sentence modification package shall be forwarded to the Bureau of Classification and Central Records for review by the central office screening committee.

(g) The central office screening committee shall review the sentence modification request for completeness and shall make a written recommendation to the Deputy Director of the Office of Institutions (classification) to approve or disapprove the request.

1. If the Deputy Director concurs with the recommendation for sentence modification, the Chief of the Bureau of Classification shall transmit a written request to the sentencing judge to consider modifying the inmate’s sentence.

2. If the Deputy Director does not concur with the recommendation for sentence modification, the Chief of Classification will notify the ICT at the facility where the inmate is housed. The ICT will notify the inmate of the decision.

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

1. Conviction for murder, attempted murder, or an offense resulting in a death;

2. Conviction for sexual battery pursuant to Section 794.011, F.S.;

3. Conviction for kidnapping pursuant to Section 787.01, F.S.;

4. Conviction for carjacking pursuant to Section 812.133, F.S.;

5. Conviction for domestic violence pursuant to Section 741.28, F.S.;

6. Conviction for home invasion robbery pursuant to Section 812.135, F.S.;

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

8. Currently serving mandatory portion of a sentence pursuant to Section 775.082, F.S.

(i) If the recommendation is approved by the sentencing judge, the community corrections office shall send the certified court order to the Bureau of Sentence Structure and Population Management for the inmate to be released through the department’s release procedures.

(j) If the judge disapproves the modification request, the community corrections office that handled the modification request shall notify the chief of the Bureau of Classification and Central Records and the ICT. The ICT shall notify the inmate.

(4) Extended Day Program Phases. Phases are consecutive. An inmate must complete Phase I before advancement to Phase II and Phase II before advancement to Phase III.

(a) Phase I:

1. Phase I shall consist of a two-week orientation period, including a broad, extensive training program including physical fitness, work assignments, regimented application of discipline, and personal development programs.

2. To advance to Phase II, the inmate must pass an evaluation on orientation materials.

(b) Phase II shall consist of continued demonstration of skills learned in Phase I, adherance to the structure of the extended day program, and consistency and participation in vocational, academic, and betterment programs.

(c) Phase III shall consist of:

1. Continued demonstration of capability in the areas of personal responsibility, job assignments, and academic and vocational programs, as well as all other areas of daily living and activities;

2. Maintenance of high proficiency in achievements;

3. Providing assistance to staff with designated activities; and

4. Evaluation in all areas on a continuous basis to ensure that the inmate should remain in Phase III.

(d) Remedial Phase. The remedial phase is designed for inmates who are not participating in the extended day program such that sentence modification may be achieved and who pose disciplinary and management problems or have basic needs for additional behavior modification measures based on poor institutional adjustment or behavior. The remedial phase shall consist of an extensive period of behavior modification emphasizing compliance with rules, proper institutional adjustment, and appropriate social behavior.

(5) Advancement to Phase III.

(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. If approved by the ICT for advancement, the Bureau of Classification and Central Records or designee 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. 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 days; and

2. Reclassification to minimum or community custody.

(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. Participation in recommended programs;

3. No disciplinary reports as defined in Rule 33-601.302, F.A.C., for the previous four months; and

4. No more than four corrective consultations as defined in Rule 33-601.303, F.A.C., for the previous four months.

(c) Evaluation of the inmate’s eligibility will include:

1. Review of circumstances of offense;

2. Institutional adjustment; and

3. Achievements.

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

1. Conviction for murder, attempted murder, or an offense resulting in a death;

2. Conviction for sexual battery pursuant to Section 794.011, F.S.;

3. Conviction for kidnapping pursuant to Section 787.01, F.S.;

4. Conviction for domestic violence pursuant to Section 741.28, F.S.;

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.

(7) Extended Day Program Assessment. Each inmate shall be required to participate in Phase III in a satisfactory manner for a minimum of 180 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, 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 these rules may be grounds for removal from 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 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 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.

(b) 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 will be recommended for sentence modification.

(b) 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, no earlier than 60 days but no later than 45 days prior to the inmate’s expected completion of the program. 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.

(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 three 3 working days from the receipt of an e-mail or telephone call from the facility that the inmate is expected to complete the program.

(e) The community corrections intake office shall complete Form DC6-193, Order Modifying Sentence, and submit it to the court for approval or disapproval within 5 working days from receipt of the request. Form DC6-193 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.

(f) The community corrections intake office shall ensure that Form DC6-193 is received from the sentencing court and shall route the form to the Bureau of Admission and Release.

(g) The appropriate Admission and Release staff and the Bureau of Classification and Central Records or designee will be notified of the receipt of Form DC6-193.

(h) Upon receipt of the court’s written action, the appropriate staff in the Bureau of Admission and Release shall make the necessary sentence structure adjustments and, if applicable, initiate release processes.

(i) If the sentence modification order is not received within 5 working days after the 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, 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) Nothing in this rule is intended to prohibit an inmate from petitioning the court if the inmate believes he or she has successfully participated in the program on the basis set forth in this rule or on the basis of other facts he or she believes are relevant.

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, _________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Russell Hosford, Assistant Secretary of Institutions
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Edwin G. Buss, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 22, 2011
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: May 13, 2011