23-21.010. Decisions Outside the Matrix Time Range

(1) The Commission may render a decision outside the matrix time range based on any competent and persuasive evidence relevant to aggravating or mitigating circumstances if the inmate is furnished a written explanation of such a decision. The requirements of competent and persuasive evidence are:

(a) That the information is specific as to the behavior alleged to have taken place; and,

(b) The source of the allegation appears to be reliable.

(2) Information (for example information supporting a count of an indictment that was dismissed as a result of a plea agreement) may be relied upon as aggravating or mitigating circumstances provided it meets the competent and persuasive criteria. However, the following aggravating factors shall not be used:

(a) Any element of the crime;

(b) Information included in calculating the salient factor score;

(c) Information included in the severity of offense behavior, or

(d) Charges for which a person was acquitted after trial.

(3) The Commission shall use as an aggravating factor all existing consecutive sentences, including parole ineligible sentences. In so doing, a specific number of months shall be assessed for each consecutive sentence(s), even if one of such sentences is for the most serious offense as defined in these rules. A consecutive sentence(s) for the underlying offense(s) in a felony murder conviction shall be used as an aggravating factor(s), but the number of months assessed for these sentences shall be zero.

(4) The Commission investigator must state in writing with individual particularity why the specific aggravation or mitigation factor(s) was recommended. This does not mean that those are the only situations in which a recommendation of aggravation or mitigation may be considered by a Commission investigator, nor does it mean that a recommendation of aggravation or mitigation is mandated for every such case. The Commission’s adoption of a Commission investigator’s recommendation without change adopts the Commission investigator’s explanation of aggravation or mitigation. Additionally, the Commission is free to consider and apply aggravation or mitigation regardless of whether the Commission investigator’s recommendation included the same and the Commission is free to disregard any recommendation by the Commission investigator and independently recompute the Salient Factor Score, Severity of Offense Behavior and apply any aggravation or mitigation deemed necessary as long as the inmate receives in writing an explanation of such decision with individual particularity.

(5) Following are examples of situations in which a Commission investigator or the quorum may wish to consider a recommendation of aggravation or mitigation. However, these are only examples and the Commission is not limited to only these examples as long as a written explanation of the factor is provided to the inmate:

(a) Aggravation – Decisions above the matrix time range:

1. Reasons related to aggravation of the severity of offense behavior can include:

a. The offense involved the use of a firearm or dangerous weapon,

b. The offense was committed for pecuniary gain,

c. The offense involved multiple victims or knowingly created a great risk of bodily injury or death to many people,

d. The offense involved exceptionally brutal or heinous behavior indicative of wanton cruelty,

e. The offense was part of a large-scale organized scheme or criminal conspiracy,

f. The offense was committed against a victim known to be particularly vulnerable, such as elderly persons, physically or mentally handicapped persons, children,

g. Any additional offenses,

h. The inmate committed an offense for the purpose of avoiding or preventing a lawful arrest or effecting an escape,

i. Extent of psychological trauma to the victim(s),

j. Inmate concealed or destroyed evidence in an attempt to avoid apprehension,

k. In an attempt to avoid apprehension, the inmate fled from the jurisdiction where the crime was committed,

l. The offense was committed against a victim that the inmate had custodial or familial authority over,

m. The inmate is or has been affliated with a gang.

2. Reasons related to likelihood of favorable parole outcome, negative indicants of parole prognosis can include:

a. The offense was committed while on bond, after bond was entreated or on release on recognizance,

b. The inmate has a history of alcohol or narcotics abuse,

c. The inmate has a history of assaultive or violent behavior,

d. The inmate has a history of poor institutional conduct,

(b) Mitigation – Decisions below the matrix time range:

1. Reasons related to mitigation of severity of offense behavior can include:

a. The crime neither caused nor threatened serious harm to persons nor property, or the inmate did not contemplate it would do so,

b. The inmate committing the crime was of such a young age as to diminish his capacity to fully understand the seriousness of his action and its direct consequences,

c. The victim of the crime induced or facilitated the offense,

d. There is substantial evidence tending to excuse or justify the crime, though failing to establish a defense,

e. The inmate acted under strong provocation or duress,

f. The inmate had only a peripheral role in the crime,

g. The inmate had diminished mental capacity to contemplate the seriousness of the offense,

h. There is confirmed evidence that the inmate attempted to withdraw prior to completion of the offense or attempted to make restitution prior to the discovery of the offense,

2. Reasons related to likelihood of favorable parole outcome, positive indicants of parole prognosis can include:

a. The inmate has led a law-abiding life for a substantial period before commission of the crime,

b. The inmate has the availability of extremely strong community resources,

c. The inmate has strong family ties,

d. The inmate has education and skills which make him or her employable within the community,

e. The inmate has made restitution to the victim of this crime for the injury, damage, or loss sustained,

f. The inmate has a poor medical prognosis,

g. The inmate has provided substantial cooperation or assistance to the government which has been otherwise unrewarded,

h. The inmate has either saved the life of or protected a Department of Corrections employee from assault or injury,

i. The inmate faces a substantial period of incarceration for other offenses,

j. The inmate has made a record of clearly exceptional program achievement (This factor would normally not be applied at the time of the initial interview but may be applicable after a substantial period of incarceration),

k. The inmate is an alien and faces deportation under a deportation order or detainer which has been formally entered by the United States Immigration and Customs Enforcement.

Rulemaking Authority 947.07, 947.165 FS. Law Implemented 947.002, 947.13, 947.165 FS. History–New 9-10-81, Formerly 23-21.10, Amended 1-26-93, 1-5-94, 8-17-06, 7-30-14, 7-16-17.