23-24.050. Revocation of Conditional Medical Release

The revocation process for conditional medical release shall be initiated either by order of the Commission or by issuance of a warrant. Any hearing will be conducted in accordance with 947.141, F.S. Revocation hearings pursuant to order of the Commission, shall be initiated when the Commission does not intend to require the releasee to be taken into custody prior to the hearing. Revocation proceedings pursuant to warrant shall be initiated when the Commission believes that the conditional medical releasee should be returned to custody prior to the hearing being convened.

(1) Order For Revocation Hearing.

(a) A Commission order requiring a revocation hearing for a conditional medical releasee shall be authorized by the Commission, a Commissioner or a panel of no fewer than two (2) Commissioners. The decision to issue an order is discretionary and shall be based on information which indicates reasonable grounds to believe that the medical or physical condition of the medical releasee has improved to the extent that he would no longer be eligible for conditional medical release. The order shall specify whether the revocation hearing shall be held locally or at a Department of Corrections facility. Failure of a conditional medical releasee to comply with such order shall constitute grounds for issuance of a warrant.

(b) Reports reflecting improved medical or physical condition of the conditional medical releasee to the extent that he would no longer be eligible for conditional medical release will be reviewed by staff for sufficiency of information and if found sufficient, staff shall submit a draft order with supporting information to a Commissioner for a decision.

(c) If staff submits a draft order to a Commissioner for review, the reviewing Commissioner shall elect to execute the order, deny the order, or direct the draft order and supporting information be placed before a panel of no fewer than two (2) Commissioners for a decision.

(d) The Commission order can be dismissed for good cause by a panel of no fewer than two (2) Commissioners or by the Commissioner who issued the order. Should an order be issued in error by a Commissioner, such shall be dismissed by a panel of no fewer than two (2) Commissioners, or by the Commissioner who issued the order.

(2) Conditional Medical Release Revocation Hearing pursuant to Commission Order.

(a) A Commissioner or a duly authorized representative of the Commission shall convene a revocation hearing within 45 days after service of a Commissioner order for a revocation hearing.

(b) The conditional medical releasee shall be informed, in writing, at least 14 days prior to the conditional medical release revocation hearing of the date, time and location of the hearing. The notice of hearing shall include the reason for the hearing and a list of the releasee’s rights, as follows:

1. The opportunity to be present for the conditional medical release violation hearing.

2. The opportunity to present evidence in his or her own behalf, including witnesses and evidence secured by subpoena or subpoena duces tecum.

3. The opportunity to receive, prior to the hearing, the disclosure of evidence that will be presented at the conditional medical release violation hearing.

4. The opportunity to confront and cross-examine adverse witness.

5. The opportunity to be represented by counsel, either retained or appointed, provided the appointment is made consistent with applicable law.

(c) Waiver of Violation Hearing.

1. A conditional medical releasee serving a state sentence within the State of Florida may waive his or her final hearing after an explanation of the consequences of a waiver. The waiver shall be in writing and shall be executed before a Commissioner or duly authorized representative of the Commission. The conditional medical releasee can withdraw the waiver by submitting a written request which waives all time constraints. The waiver withdrawal request must be witnessed by Commission staff, Department of Corrections staff, or staff of the correctional facility where the releasee is housed, and must be postmarked within 14 days after date of the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a conditional medical release revocation hearing shall be convened after appropriate notice.

2. A conditional medical releasee serving a sentence in a jurisdiction outside the State of Florida or serving a federal sentence may submit a written request to waive his or her final hearing in absentia and have the Commission proceed with the disposition of the violation. Upon receipt of the written waiver request, the Commission can elect to either proceed with the revocation or wait to make a final decision as to the revocation until the conditional medical releasee has completed his or her sentence in the other jurisdiction and is returned to Florida. The conditional medical releasee may withdraw the waiver by submitting a written request which waives all time constraints. The waiver withdrawal request must be witnessed by Commission staff, Department of Corrections staff, or staff of the correctional facility where the releasee is housed, and must be postmarked within 14 days after date of the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a conditional medical release violation hearing shall be convened after appropriate notice.

(d) The conditional medical releasee is entitled to request that his conditional medical release revocation hearing be postponed upon a showing of good cause. The request for postponement or continuance shall be submitted to the hearing officer in writing prior to convening the hearing, and the reasons for the request must be outlined with specificity. The granting of a continuance or postponement on behalf of the conditional medical releasee constitutes a waiver by the conditional medical releasee of all time constraints. In the event that the conditional medical release revocation hearing has been convened, it can be postponed or continued beyond 45 days on the motion of the conditional medical releasee, the Commission or duly authorized representative of the Commission, provided the record reflects good cause for continuance or postponement.

(e) Subpoenas and subpoenas duces tecum for the conditional medical releasee and the Commission shall be issued by a Commissioner or duly authorized representative of the Commission on behalf of the State or the conditional medical releasee. The Commission, a Commissioner or a duly authorized representative of the Commission may decline a request to subpoena a witness whose testimony is found to be cumulative, irrelevant or non-probative. The party requesting the subpoenas shall furnish to the Commission, a Commissioner or a duly authorized representative of the Commission the names and addresses of proposed witnesses at least 14 days prior to the hearing date.

(f) At the hearing, the releasee can waive representation by an attorney, provided the waiver is reflected clearly in writing or in the record of the proceeding. Should the conditional medical releasee desire, he can retain counsel at his expense. In the event the conditional medical releasee desires but cannot afford counsel the following procedure shall apply:

1. The hearing officer shall determine the conditional medical releasee’s financial ability to retain private counsel. When the hearing officer determines a conditional medical releasee has the ability to retain private counsel, reasonable time shall be permitted for the conditional medical releasee to secure counsel, if the conditional medical releasee so desires.

2. If the hearing officer concludes the conditional medical releasee is unable to secure counsel by reason of indigency, the hearing officer shall then proceed to determine if the conditional medical releasee is eligible for appointed counsel as provided in the guidelines outlined in Gagnon v. Scarpelli, 411 U.S. 778 (1973). If a request for counsel is denied, the grounds for the denial shall be stated in the record.

(g) During a conditional medical release revocation hearing, the conditional medical releasee has a right to speak on his/her own behalf. The hearing officer can elect to rule on legal matters during the course of the hearing or can withhold ruling pending consultation with counsel or staff.

(h) Based on evidence presented at the revocation hearing, or received by stipulation, the hearing officer shall make findings of fact regarding continued eligibility for the conditional medical release program with a written recommendation to the Commission. When the Commission finds that the medical or physical condition of the conditional medical releasee has improved to the extent that he is no longer eligible for conditional medical release, the Commission shall enter an order revoking, modifying or terminating the conditional medical release or restoring the conditional medical releasee to supervision. Notification by copy of the Commission order shall be provided to the conditional medical releasee. If the decision of the Commission is to revoke, the order entered shall include the evidence relied upon and the reasons for the revocation.

(i) The hearing officer conducting the hearing can elect to receive information following the revocation hearing if the conditional medical releasee stipulates to the receipt of such information and such stipulation is reflected in the record.

(j) If the Commission revokes conditional medical release solely for improvement of the releasee’s medical condition, the conditional medical releasee shall be entitled to credit for time served on conditional medical release. Credit for time on conditional medical release shall be reflected in the revocation order. The releasee shall not forfeit gain time accrued before the date of his release on conditional medical release.

(k) When the Commission revokes conditional medical release, the conditional medical releasee shall be scheduled for an evaluation by Commission staff to determine eligibility for parole or any other release program administered by the Commission.

(3) Conditional Medical Release Warrants.

(a) A warrant for the arrest of a conditional medical Releasee shall be authorized by the Commission, a Commissioner, or a panel of no fewer than two (2) Commissioners except in the case of an emergency warrant as provided in subsection (4), herein. The decision to issue a warrant shall be based on information which indicates reasonable grounds to believe a releasee has violated the conditions of conditional medical release. The issuance of a warrant is discretionary.

(b) All warrant requests will be reviewed by staff for sufficiency of information and if found sufficient, staff shall submit the warrant to a Commissioner or Commissioners for a decision.

(c) If staff submits a warrant request to a Commissioner for review, the reviewing Commissioner shall authorize the warrant, deny the warrant, or direct the warrant request be placed before a panel of no fewer than two (2) Commissioners for a decision.

(d) A request for a warrant shall be denied only by a Commissioner or Commissioners and the reasons for the denial shall be provided to the requester, except in the case of an emergency warrant.

(e) Should a warrant be issued, such will be transmitted to the requesting agency for service or filing. Alleged violators of conditional medical release will be entered into the Florida Crime Information Center and National Crime Information Center databases, unless in custody. The Commission has authority to pursue extradition of alleged violators from other jurisdictions.

(f) Any warrant can be dismissed by a panel of no fewer than two (2) Commissioners, or by the Commissioner who issued the warrant, for good cause. Should a warrant be issued in error by a Commissioner such shall be dismissed by a panel of no fewer than two Commissioners, or by the Commissioner who issued the warrant.

(4) 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 releasee has been arrested and charged with a new felony offense and there is no outstanding Commission warrant for the releasee.

(b) The decision to issue an emergency warrant shall be based on evidence which indicates reasonable grounds to believe a releasee violated the conditions of conditional medical release. The issuance of an emergency warrant is discretionary.

(c) Should an emergency warrant be issued, such will be transmitted to the detaining agency for appropriate service or filing. Alleged violators of conditional medical release will be entered into the Florida Crime Information Center and National Crime Information Center, unless in custody. The Commission has authority to pursue extradition of alleged violators from other jurisdictions.

(d) Should an emergency warrant be issued and a dismissal of the emergency warrant is requested, only the signing Commissioner or the Chair is authorized to dismiss the warrant for good cause.

(5) Release on Recognizance.

(a) The Commission or a Commissioner can at any time during the violation process, release a conditional medical releasee on recognizance bond, conditioned upon the conditional medical releasee’s appearance at any hearings noticed by the Commission or until further order of the Commission.

(b) A review regarding bond for alleged conditional medical release violators who are in custody, shall be conducted before or at the time of the initial service of the notice of the violation hearing.

(c) The alleged violator must be informed that by accepting release on recognizance, he is waiving any and all time constraints related to the violation hearing.

(d) Any conditional medical releasee who has been arrested pursuant to a Commission warrant may request and shall be provided a hearing on the matter of bond regarding the Commission warrant. Such hearing shall be held by a Commissioner or a duly authorized representative of the Commission, who shall provide the Commission with a written summary of the hearing, after which a panel of no fewer than two Commissioners shall make a decision and inform the conditional medical releasee.

(6) Conditional Medical Release Violation Hearing pursuant to Commission Warrant.

(a) A Commissioner or a duly authorized representative of the Commission shall convene a violation hearing within 45 days after the arrest in the State of Florida of a conditional medical releasee charged with violation(s), unless waived by the releasee.

(b) The conditional medical releasee shall be informed, in writing, at least 14 days prior to the conditional medical release violation hearing of the date, time and location of the hearing. The notice of the hearing shall contain the charges of violation and a list of the releasee’s rights, as follows:

1. The opportunity to be present for the conditional medical release violation hearing.

2. The opportunity to present evidence in his or her own behalf, including witnesses and evidence secured by subpoena or subpoena duces tecum.

3. The opportunity to receive, prior to the hearing, the disclosure of evidence that will be presented at the conditional medical release violation hearing.

4. The opportunity to confront and cross-examine any adverse witness.

5. The opportunity to be represented by counsel, either retained or appointed, provided that such appointment is made consistent with law.

(c) Any conditional medical release violation hearing can be waived by the conditional medical releasee after an explanation of the consequences of a waiver. The waiver shall be in writing and shall be executed before a Commissioner or duly authorized representative of the Commission. The conditional medical releasee can withdraw the waiver by submitting a written request which waives all time constraints. The waiver withdrawal request must be appropriately witnessed, and postmarked within 14 days after the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a conditional medical release violation hearing shall be convened after appropriate notice.

(d) The conditional medical releasee is entitled to request that his conditional medical release violation hearing be postponed upon a showing of good cause. Any request for postponement or continuance shall be submitted to the hearing officer in writing prior to convening the hearing, provided that the reasons for the request are outlined with specificity. The granting of a continuance or postponement on behalf of the conditional medical releasee constitutes a waiver by the conditional medical releasee of all time constraints. In the event that the conditional medical release violation hearing has been convened, such can be postponed or continued beyond 45 days as provided by statute, on the motion of the conditional medical releasee, the Commission or duly authorized representative of the Commission, provided the record reflects good cause for such continuance or postponement.

(e) If there is a judicial order of incompetency, a written psychiatric or psychological determination of incompetency, or a commitment to a mental institution in the 90 days prior to the violation then an attorney shall be appointed. Once an attorney is appointed for questions of competency or if a previously appointed/retained attorney raises competency issues, then evidence of mental competency/incompetency shall be gathered and forwarded to the Commission for review. Once received by the Commission, the case shall be docketed. At the Commission meeting, the Commission may either order that the violation process proceed, that the violation process be placed in abeyance, or such other order that it considers proper.

(f) The conditional medical release violation hearing shall be convened within 45 days of receipt of written notification from the Department of Corrections that the alleged violator has been returned to the custody of the Department from another jurisdiction.

(g) Subpoenas and subpoenas duces tecum for the conditional medical releasee and the Commission shall be issued by a Commissioner or duly authorized representative of the Commission on behalf of the State or the conditional medical releasee. The Commission, a Commissioner or a duly authorized representative of the Commission has authority to decline a request to subpoena a witness whose testimony is found to be cumulative, irrelevant or non-probative. The party requesting the subpoenas shall furnish to the Commission, a Commissioner or a duly authorized representative of the Commission the names and addresses of his proposed witnesses at least 14 days prior to the hearing date.

(h) At the hearing, the releasee can waive representation by an attorney, provided the waiver is reflected clearly in writing or in the record of the proceeding. Should the conditional medical releasee desire, retained counsel can represent the conditional medical releasee at the hearing. In the event the conditional medical releasee desires counsel and has not retained one, the following procedure shall apply:

1. The hearing officer shall determine the conditional medical releasee’s financial ability to retain private counsel. When the hearing officer determines a conditional medical releasee has the ability to retain private counsel, reasonable time shall be permitted for the conditional medical releasee to secure counsel, if the conditional medical releasee so desires.

2. If the hearing officer concludes the conditional medical releasee is unable to secure counsel by reason of indigency, the hearing officer shall then proceed to determine if the conditional medical releasee is eligible for appointed counsel as provided in the guidelines outlined in Gagnon v. Scarpelli, 411 U.S. 778 (1973). If a request for counsel is denied, the grounds for the denial shall be stated in the record.

(i) During a conditional medical release violation hearing, the hearing officer can entertain arguments of counsel or the conditional medical releasee. The hearing officer shall rule on such matters during the course of the hearing or 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) Based on evidence presented at the violation hearing, or received by stipulation, the hearing officer shall make findings of fact regarding the alleged violations, with a written recommendation to the Commission. When the Commission finds that the conditional medical releasee has committed one or more violations, the Commission shall within a reasonable time enter an order revoking the conditional medical release, restoring the conditional medical releasee to supervision or such other order as deemed appropriate. Notification by copy of the Commission order shall be provided to the conditional medical releasee. If the decision of the Commission is to revoke, the order entered shall contain the evidence relied upon and the reasons for the revocation.

(k) The hearing officer conducting the hearing can elect to receive information following the violation hearing if the conditional medical releasee stipulates to the receipt of such information and such stipulation is reflected in the record.

(l) Pursuant to the United States Supreme Court’s decision in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998), the Commission may consider evidence that has been excluded in a criminal proceeding as the result of the application of the federal exclusionary rule.

(m) When the Commission revokes conditional medical release for reasons of medical improvement, the conditional medical releasee shall be entitled to credit for time served on conditional medical release.

(n) When the Commission revokes conditional medical release, for reasons other than medical improvement, the conditional medical releasee shall be entitled to credit for time spent in custody prior to the violation hearing for all charges that appear on the warrant and/or notice of hearing. Time spent in another jurisdiction as a result of intervening sentence(s) shall be considered. Credit for time in custody shall be reflected in the order of revocation of conditional medical release.

(o) When the Commission revokes conditional medical release, the conditional medical releasee shall be scheduled for an evaluation by Commission staff to determine eligibility for parole or any other release program administered by the Commission.

Rulemaking Authority 947.07, 947.149 FS. Law Implemented 947.141, 947.149 FS. History–New 1-5-94, Amended 4-20-94, 3-31-10, 2-12-13, 7-16-17.