Update processes in rules to conform to current agency practices and delete sections duplicative of statute.

 

FLORIDA PAROLE COMMISSION

RULE NO.: RULE TITLE:
23-22.007: Victim Input
23-22.008: Control Release Evaluation Procedure
23-22.010: Advancing or Extending Control Release Dates
23-22.013: Control Release Supervision
23-22.014: Revocation of Control Release
PURPOSE AND EFFECT: Update processes in rules to conform to current agency practices and delete sections duplicative of statute.
SUMMARY: The proposed changes will update those rules where practice is nonconforming and delete those sections which are duplicative of statute.
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; 947.146; 947.20 FS.
LAW IMPLEMENTED: 947.141; 947.146 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:

 

23-22.007 Victim Input.

(1) The Commission shall provide for victim input into the decision making process and all such information received shall be confidential pursuant to Section 119.07, Florida Statutes. During the conduct of the control release evaluation, the agency shall mail a victim input form to each victim or deceased victim’s family whose address is available to the Commission.

(2) Information received shall be included with other case material to be considered by the Commission in establishing the CRD.

(3) Victim input should be mailed to the following:

Florida Parole Commission

Attn: Victim Services Supervisor

4070 Esplanade Way

Tallahassee, Florida 32399-2450

(4) Victim input received subsequent to the establishment of a CRD, which provides new information bearing on the inmate’s suitability for control release, which indicates justification to modify the original action, can result in postponement of the inmate’s CRD and shall be placed on the docket for a panel of no fewer than two (2) Commissioners for a determination of whether to modify the previously established CRD.

(5) Comments and information can be submitted in writing prior to the meeting, but no person will be granted permission to speak.

(1) 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 control release 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.

(2) Victims of any crime committed by an inmate shall be permitted to appear and speak only upon the prior written approval of the Chair of the Commission, or victims can submit a written statement regarding their views.

(3) Victims addressing the Commission regarding a particular inmate 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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.

(8) 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.

Rulemaking Specific  Authority 947.146(6)(i), 947.07, 947.20, 119.07, 947.135 FS. Law Implemented 947.146 FS. History–New 9-1-90, Amended 1-5-94, 8-16-94.

 

23-22.008 Control Release Evaluation Procedure.

(1) Upon the Commission’s receipt of notice from the Department that an inmate eligible for control release has been committed to the Department, the Administrator of Control Release shall schedule an evaluation for the inmate to be conducted by a parole examiner and forwarded to the Commission’s headquarters, unless the inmate has a conviction for committing or attempting to commit manslaughter under Section 316.193(3)(c)3., 327.351(2) or 782.07, 782.071(1), Florida Statutes, vehicular homicide; Section 782.071(2), Florida Statutes, vehicular homicide (leaving the scene); Section 782.072(1), Florida Statutes, homicide-vessel; Section 782.072(2), Florida Statutes, homicide-vessel (leaving the scene); kidnapping under Chapter 787, Florida Statutes, robbery under Chapter 812, Florida Statutes, carjacking under Section 812.133, Florida Statutes, home-invasion robbery under Section 812.135, Florida Statutes, aggravated battery under Section 784.045, Florida Statutes, aggravated child abuse under Section 827.03, Florida Statutes, or burglary under Section 810.02(2), Florida Statutes. Inmates who are convicted of committing or attempting to commit manslaughter under Section 316.193(3)(c)3., Florida Statutes, Section 327.351(2) or 782.07, Florida Statutes, Section 782.071(1), Florida Statutes, vehicular homicide; Section 782.071(2), Florida Statutes, vehicular homicide (leaving the scene); Section 782.072(1), Florida Statutes, homicide-vessel; Section 782.072(2), Florida Statutes, homicide-vessel (leaving the scene); kidnapping under Chapter 787, Florida Statutes, robbery under Chapter 812, Florida Statutes, carjacking under Section 812.133, Florida Statutes, home-invasion robbery under Section 812.135, Florida Statutes, aggravated battery under Section 784.045, Florida Statutes, aggravated child abuse under Section 827.03, Florida Statutes, or burglary under Section 810.02(2), Florida Statutes, is ineligible pursuant to section 947.146(3)(a) – (m), F.S., shall be placed in the Maximum Non-Advanceable Category B. Their CRD shall be set at the maximum of the court imposed sentence and not advanceable without the necessity of an evaluation by the Commission but based upon their record of convictions for the herein enumerated offenses. Additionally, the Commission can for a prior conviction for any of the enumerated offenses, place the inmate in the Maximum B category.

(2) No change.

(3) No change.

(a) Control Release Eligibility – All parole ineligible inmates in the custody of the department and incarcerated within the state shall be eligible for control release and shall have a CRD established within 90 days following notification by the Department of receipt of the inmate or within 90 days following the completion of proceedings revoking an inmate’s release and notification by the Department of receipt of the inmate, except any inmate who:

1. Is serving a sentence which includes a mandatory minimum provision for a capital offense or drug trafficking offense and has not served the number of days equal to the mandatory minimum term less any jail-time credit awarded by the court;

2. Is serving the mandatory minimum portion of sentence enhanced under Section 775.087(2), Florida Statutes;

3. Is convicted, or has been previously convicted, of committing or attempting to commit sexual battery, incest, or any of the following lewd or indecent assaults or acts: masturbating in public; exposing the sexual organs in a perverted manner; or non-consensual handling or fondling of the sexual organs of another person;

4. Is convicted, or has been previously convicted, of committing or attempting to commit, assault, aggravated assault, battery, or aggravated battery, and a sex act was attempted or completed during commission of such offense;

5. Is convicted, or has been previously convicted, of committing or attempting to commit kidnapping, burglary, or murder, and the offense was committed with the intent to commit sexual battery or a sex act was attempted or completed during commission of the offense;

6. Is convicted, or has been previously convicted, of committing or attempting to commit false imprisonment upon a child under the age of 13 and, in the course of committing the offense, the inmate committed aggravated child abuse, sexual battery against the child, or a lewd, lascivious, or indecent assault or act upon or in the presence of the child;

7. Is sentenced, has previously been sentenced, or has been sentenced at any time as a violent habitual offender for a crime committed on or after October 1, 1988, or has been sentenced at any time in another jurisdiction as a violent offender.

8. Is convicted, or has been previously convicted, of committing or attempting to commit assault, aggravated assault, battery, aggravated battery, kidnapping, manslaughter, or murder against an officer as defined in Section 943.10(1), (2), (3), (6), (7), (8), or (9), Florida Statutes, or against a state attorney or assistant state attorney, or against a justice or judge of a court described in Article V of the State Constitution; or against an officer, judge, or state attorney employed in a comparable position by any other jurisdiction; or

9. Is convicted, or has been previously convicted, of committing or attempting to commit murder in the first, second, or third degree under Section 782.04(1), (2), (3), or (4), Florida Statutes, or has ever been convicted of committing any degree of murder in another jurisdiction.

10. Is convicted, or has been previously convicted, of DUI manslaughter under Section 316.193(3)(c)3., Florida Statutes, and is sentenced, or has been sentenced at any time, as a habitual offender for such offense, or has been sentenced at any time in another jurisdiction as a habitual offender for such offense;

11. Is serving a sentence for an offense committed on or after January 1, 1994, for a violation of the Law Enforcement Protection Act under Section 775.0823(2), (3), (4), or (5), Florida Statutes, and the subtotal of the offender’s sentence points is multiplied pursuant to Section 921.0014, Florida Statutes;

12. Is serving a sentence for an offense committed on or after January 1, 1994, for possession of a firearm or destructive device in which additional points are added to the subtotal of the offender’s sentence points pursuant to Section 921.0014, Florida Statutes; or

13. Is serving a sentence for an offense committed on or after January 1, 1994, for possession of a semiautomatic weapon, and additional points are added to the subtotal of the offender’s sentence points pursuant to Section 921.0014, Florida Statutes.

(a)(b) Salient Factor Scoring – Salient factors shall be calculated on the basis of the inmate’s prior criminal record as it existed before conviction on the earliest active commitment. Inmates found to be eligible for inclusion in the Control Release Program will be scored as follows:

1. through 8. No change.

(b)(c) Severity of Offense Behavior – The severity of offense behavior shall reflect the primary offense of conviction’s degree of felony. If the present offenses of conviction involved multiple separate offenses, the severity of offense behavior shall be established for the most serious of the separate offenses (primary offense) which resulted in a sentence to incarceration. If the actual offense behavior was more or less severe than the primary offense of conviction reflects, a decision outside the matrix grid may be considered. Convictions that do not qualify as prior record or active commitments may be used for the purpose of aggravations.

(c)(d) Control Release Matrix Grid –

1. through 6. No change.

(d)(e) Control Release Criteria (aggravation) – Reasons for establishing a control release date exceeding the criteria or finding ineligible for future advances shall include:

1. through 38. No change.

(e)(f) Control Release Criteria (mitigation) – Reasons for mitigating a control release date to an earlier date than determined by objective criteria or determining eligible for future advances of control release date shall include:

1. through 26. No change.

(f)(g) Reasons for requiring or extending supervision shall include:

1. through 10. No change.

Rulemaking Specific  Authority 947.146(6)(i), 947.07, 947.20 FS. Law Implemented 947.146 FS. History–New 9-1-90, Amended 8-24-92, 1-5-94, 8-16-94, 4-16-96.

 

23-22.010 Advancing or Extending Control Release Dates.

(1) A panel of no fewer than two members of the Commission shall have The power and duty to extend or advance an inmate’s CRD based upon one or more of the following: shall be by a panel of no fewer than two members of the Commission.

(a) Recently discovered information of:

1. Past criminal conduct;

2. Verified threats by inmates provided by victims, law enforcement, or the Department;

3. Potential risk to or vulnerability of a victim;

4. Psychological or physical trauma to the victim due to the criminal offense;

5. Court-ordered restitution;

6. History of abuse or addiction to a chemical substance verified by a presentence or postsentence investigation report;

7. The inmate’s ties to organized crime;

8. A change in the inmate’s sentence structure;

9. Cooperation with law enforcement;

10. Strong community support; and

11. A documented mental health condition as a factor for future criminal behavior.

(b) The recommendation of the Department regarding:

1. A medical or mental health related condition; or

2. Institutional adjustment of the inmate, which can include refusal by the inmate to sign the agreement to the conditions of the release.

(c) Lawful capacity of the state prison system.

(2) - (5) No Change.

(6) Should any inmate who has been voted a CRD, and whose release is imminent, become the subject of disciplinary proceedings, criminal arrest, an information or an indictment, termination from work release, recently discovered information, recommendations from the Department, or the lawful prison capacity, as provided in subsection (1) above, for cause prior to actual physical release from the institution of confinement, then Postponement of a CRD by a Commissioner has the authority to postpone the release date for a period of not more than 60 days pending shall be reviewed by a panel of no fewer than two Commissioners.

Rulemaking Specific  Authority 947.146(6)(i), 947.07, 947.20 FS. Law Implemented 947.146 FS. History–New 9-1-90, Amended 1-5-94, 8-16-94.

 

23-22.013 Control Release Supervision.

(1) No change.

(a) If the inmate is serving a single or concurrent sentence, the period of time the person shall be on control release supervision shall be the time specified by the control release matrix grid. (See FPC-CR-001) However, the Commission has the authority to designate no supervision or a shorter period of time in which event it will record reasons for the alternative period of supervision. The total of time served and period of supervision shall not exceed the length of the court imposed sentence(s).

(b) No change.

(c) If the inmate’s conviction was for a controlled substance violation, the conditions shall include a requirement that the releasee submit to random substance abuse testing intermittently throughout the term of supervision, upon the direction of the correctional probation officer.

(c)(d) If the inmate has a conditional release eligible component contained within his cumulative sentence structure, the period of time the inmate shall be on control release supervision shall be for the balance of the court imposed sentence(s).

(2) If an inmate placed on control release supervision is subject to probation or community control, the control releasee shall be supervised in accordance with the conditions imposed by the court, and the Commission shall defer to such supervision. If the term of control release supervision exceeds that of the probation or community control, then supervision shall revert to the Commission’s conditions upon expiration of the probation or community control. If the court revokes the probation or community control, a panel of no fewer than two (2) Commissioners, as a result of the revocation, can vacate, modify or terminate the grant of control release and resulting deferred control release supervision.

(3) If an inmate is released on control release subject to a detainer for a pending charge and the pending charge results in a new commitment to incarceration before expiration of the term of control release supervision, a panel of no fewer than two (2) Commissioners can vacate, modify or terminate the grant of control release and supervision.

(2)(4) All persons placed solely on control release supervision shall initially be subject to the standard conditions of control release:

(a) - (b) No change.

(3)(5) As an alternative to standard supervision previously described in this rule and required by the matrices or subsection 23-22.008(9), F.A.C., the Commission is authorized to require a control release term for any length of time up to the remainder of the inmate’s court imposed sentence under the solitary condition of:

(a) through (c) No change.

(4)(6) There shall be no right of review of the terms and conditions of control release as determined by the Commission.

(5)(7) A panel of no fewer than two Commissioners has authority to cause a review of the progress of a control releasee, or the Department of Corrections may make recommendations to the Commission whether to modify the reporting schedule or further modify the terms and conditions of control release. A panel of no fewer than two Commissioners shall discharge from control release, relieve from making further reports or permit the releasee to leave the country upon determining that such action is in the best interest of the control releasee and of society. Such cases shall be docketed before the panel of commissioners, if available, that initially set the terms and conditions of control release.

(6)(8) A panel of no fewer than two Commissioners shall review the progress of each person who has been placed on control release after 2 years of supervision and not less often than biennially thereafter. Such reviews must include consideration of whether to modify the reporting schedule, thereby authorizing the person under supervision to submit reports quarterly, semi-annually, or annually. In the event the Commission elects to place a control releasee on quarterly, semi-annually or annual reporting, the following definitions will be applicable:

(a) through (c) No change.

(7)(9) The panel may give specific instructions reflecting whether the personal contact is to take place in a formal setting or in the setting to be determined by the control release supervisor.

(8)(10) Such modification shall not impose new or different terms or conditions of control release more restrictive than was stated in the original certificate.

Rulemaking Authority 947.146(6)(i), 947.07, 947.20 FS. Law Implemented 947.146 FS. History–New 9-1-90, Amended 8-24-92, 1-5-94, 3-31-10.

 

23-22.014 Revocation of Control Release.

(1) No change.

(2) Emergency Warrants.

(a) An emergency warrant can be issued by a Commissioner or any Commission representative duly authorized by the Chair when the Commission receives notification from an arresting agency that a release releasee has been arrested and charged with a new felony offense and there is no outstanding Commission warrant for the releasee.

(b) 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 for good cause.

(3) No change.

(4) No change.

(a) through (h) No change.

(i) During a control release violation hearing, the releasee has a right to speak on his/her own behalf the hearing officer may entertain arguments of counsel or the control releasee. The hearing examiner officer may elect to rule on legal such matters during the course of the hearing or may elect to withhold ruling pending consultation with counsel or staff. Arguments of counsel of a legal nature must be reduced to writing, and, if possible, presented prior to the hearing.

(j) through (p) No change.

Rulemaking Authority 947.07, 947.146(7)(h), 947.20 FS. Law Implemented 947.141, 120.53, 947.146 FS. History–New 9-1-90, Amended 4-20-94, 1-5-94, 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