Fla. Admin. Code R. 23-21.022

Current through Reg. 50, No. 235-239, December 10, 2024

Section 23-21.022 - Revocation of Parole; Preliminary Hearings; Final Hearings

(1) Preliminary Hearing. Within 30 days of service of the Commission's warrant in this State, an alleged parole violator will be provided a preliminary hearing. The purpose of the preliminary hearing is to determine if there is probable cause that a violation of parole has occurred.

(2) Prior to the preliminary hearing, an interview with the alleged violator will be held at which time an explanation of all rights and procedures will be afforded. The interview and preliminary hearing can be held by a Commission representative, such as a Commission investigator, provided such representative is neutral and detached.

(3) The preliminary hearing will be held in or near the community where the violation is alleged to have occurred or where the parolee has been taken into custody on the Commission's warrant.

(4) For the preliminary hearing, the parolee shall be afforded the following rights:

(a) The opportunity to be present at the hearing and to present evidence in the parolee's own behalf including the securing of witnesses and evidence by subpoena.

(b) The opportunity to have disclosed the evidence which shall be presented at the hearing.

(c) The opportunity to confront and cross-examine witnesses who may give adverse testimony.

(d) The opportunity to be represented by counsel provided by the parolee's own initiative or by appointed counsel should the parolee qualify for such appointment as set forth in the guidelines enunciated in Gagnon v. Scarpelli, 411 U.S. 778.

(5) Waiver of Preliminary Hearing.

(a) A parolee serving a state sentence within the State of Florida may waive his or her preliminary 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 parolee 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 parolee 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 preliminary hearing shall be convened after appropriate notice.

(b) A parolee 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 preliminary hearing in absentia. Upon receipt of the written waiver request, the Commission can elect to either proceed with the preliminary hearing or wait until the parolee has completed his or her sentence in the other jurisdiction and is returned to Florida. The parolee 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 parolee is housed, and must be postmarked within 14 days after date of the the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a preliminary hearing shall be convened after notice.

(6) The parolee may request postponement of the preliminary hearing, until such time as any pending criminal charges that are listed on the Commission's warrant or notice of hearing have been resolved. The granting of a postponement on behalf of the parolee shall waive all time constraints and shall postpone disposition of all violations until notification is received by the Commission that the pending criminal charges have been resolved or the parolee elects to proceed with or waive the preliminary hearing.

(7) The parolee may request that the preliminary hearing be continued upon showing of cause. The request for continuance shall be submitted to the person conducting the hearing in writing prior to convening the hearing, provided that the reasons for the request are outlined with specificity. The granting of a continuance on behalf of the parolee shall waive all time constraints. If a preliminary hearing has been convened, such may be continued on the motion of the parolee, the Commission or duly authorized representative of the Commission, provided the record reflects a good cause for such continuance.

(8) 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.

(9) At least 7 days prior to the preliminary hearing, the parolee shall be informed in writing of the date, time, and location of the hearing. The parolee shall also be informed in this notice of the charges which are to be considered at the hearing and the notice shall contain all rights regarding the hearing as heretofore stated.

(10) The Commission representative who is responsible for holding the preliminary hearing shall have the authority to administer oaths to all witnesses. The Commission representative is responsible for the conduct of the hearing, evaluation of evidence presented and shall make findings based on such evidence with respect to the issue of probable cause. Following all testimony, the Commission representatives shall announce, verbally, the findings regarding probable cause issues and shall promptly provide a written statement of the findings to the parolee within 30 days following the hearing.

(11) Following the hearing, the Commission representative shall prepare a written summary of the hearing. The written summary, which will include recommendations for further Commission action, shall be transmitted to the Commission for action. The written summary shall also contain any mitigating circumstances which are brought to light as a result of the proceeding and a statement on realistic alternatives to further incarceration, if any.

(12) Upon receipt of the preliminary hearing summary, the Commission shall review same and make a further decision with respect to possible restoration to parole or discharge from further supervision or the return of the parolee for a final revocation hearing.

(13) Any parolee who has been arrested pursuant to a Commission warrant may request and shall be provided a hearing on the matter of release on recognizance regarding the Commission warrant. Such hearing may be held by a Commission representative, who shall provide the Commission with a written report regarding the hearing after which the Commission shall make a decision and inform the parolee. A Commissioner is authorized to order a parolee released on his recognizance. However, the parolee must sign a written statement agreeing:

(a) To waive all time constraints to conduct the revocation hearing;

(b) To abide by all conditions of release previously imposed by the Commission;

(c) To abide by any special conditions imposed at the time of release on recognizance; and,

(d) That his release on recognizance is subject to review and approval by the Commission or the Commissioner who executed the warrant, or the Chair in his absence.

(14) If the Commission decides to conduct a final revocation hearing, the Commission or a Commission representative may request the immediate transfer of the alleged violator to an appropriate Department facility. The final revocation hearing shall be noticed and convened within 60 days of receipt of written notification from the Department of the return of the alleged violator to the custody of the Department. If the alleged violator is already in the custody of the Department from another jurisdiction, or has been released on recognizance, or the Commission has elected not to have the violator transferred to the Department, the final revocation hearing shall be noticed and convened within 60 days of the preliminary hearing, or the waiver of that hearing.

(15) Final Hearing. The parolee shall be informed, in writing, at least 14 days prior to the final revocation hearing of the date, time and location of such hearing. The notice of the hearing shall contain the charges of violation and shall contain a list of the rights the parolee shall be afforded for such hearing as follows:

(a) The opportunity to be present for the final revocation hearing.

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

(c) The opportunity to receive, prior to the hearing, disclosure of evidence that will be presented at any final hearing.

(d) The opportunity to confront and cross-examine any adverse witnesses.

(e) The opportunity to be represented by counsel, either retained or appointed, provided that such appointment is made consistent with the guidelines of the United States Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778.

(16) Waiver of Final Hearing.

(a) A parolee 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 parolee 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 parolee 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 revocation hearing shall be convened after appropriate notice from the Department that the parolee has been returned to the custody of the Department from another jurisdiction.

(b) A parolee 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 revocation. 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 parolee has completed his or her sentence in the other jurisdiction and is returned to Florida. The parolee 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 parolee is housed, and must be postmarked within 14 days after date of the the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a revocation hearing shall be convened after appropriate notice.

(17) The parolee is entitled to request that his final revocation hearing be postponed or continued, upon a showing of good cause. The request for postponement or continuance may be submitted to the Commission Investigator or Commission, in writing, prior to the convening of the hearing, provided that the reasons for the request are outlined with specificity. In the event that the final hearing has been convened, such may be postponed or continued beyond 60 days provided the record reflects good cause for such continuance.

(18) The final revocation hearing is a two-part hearing with the first emphasis being placed on the factual determination as to whether or not violations have occurred. The second part of the final revocation hearing is the determination of whether or not the parole should be revoked. In reaching such a determination, the Commission shall consider all mitigating circumstances which were made known at the time of the hearing and shall consider alternatives other than reincarceration prior to making a final determination.

(19) During the course of a final revocation hearing, the parolee has a right to speak and present arguments on his/her behalf. The person or persons conducting the hearing may elect to rule on legal matters during the course of the hearing or may elect to withhold ruling pending consultation with Commission counsel or individual staff members. If the person conducting the hearing elects not to address arguments of counsel or the parolee during the course of the hearing, such shall be made known to the interested parties. In the event a decision is made during the course of the final revocation hearing, such decision shall be reflected in the record, and then reviewed by the Commission. 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.

(20) Subpoenas and subpoenas duces tecum for the parolee and State shall be issued by the Commission's duly authorized representative on behalf of the State or the parolee for both the preliminary and final revocation hearings. 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 nonprobative. 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.

(21) At both the preliminary and final revocation hearing, the accused violator may waive representation by an attorney, provided the waiver is reflected clearly in writing or in the record of the proceeding. Should the accused desire, retained counsel may represent the parolee at both hearings. In the event the parolee desires counsel and has not retained such, the following procedure shall apply:

(a) Inquiry shall be made of the parolee's ability to retain private counsel. A conclusion shall be reached by the person or persons responsible for conducting the hearing as to the parolee's ability to retain counsel and time shall be permitted for the parolee to secure such if an affirmative conclusion is reached.

(b) If it is concluded that the parolee is unable to secure retained counsel by reason of indigency or other valid reasons, then the Commission shall proceed to determine if the parolee is eligible for appointed counsel pursuant to the guidelines of Gagnon v. Scarpelli, 411 U.S. 778 (1973) at 790. If a request for counsel is denied, the grounds for denial shall be stated succinctly in the record. Gagnon, supra, at 790-791.

(22) The person or persons conducting the hearing may elect to receive information following the revocation hearing provided the parolee agrees to the receipt of such information outside of the context of the hearing and that such agreement is reflected clearly in the record.

(23) Based on evidence presented at the hearing, the person or persons conducting the hearing shall make findings of fact regarding the alleged violations, and report that to the Commission. The Commission may enter an order revoking the parole, reinstating the parolee to supervision or enter such other order as deemed appropriate by the Commission. When, based on the findings of the person or persons conducting the hearing, the Commission finds that the parolee has committed one or more violations, the Commission may elect to order the parolee returned to supervision with a new term not to exceed statutorily prescribed limits and may elect to establish new conditions of the parole provided the parolee agrees to each term and condition. In any event, the Commission shall make a decision in an open meeting within 45 days following the revocation hearing. Prompt notification of the decision shall be provided to the parolee and his defense attorney, unless such notification is waived by the parolee. If the decision of the Commission is to revoke, the order entered shall contain the evidence relied upon and the reasons for the revocation.

(24) Upon a finding that the parolee did commit one or more violations, the Commission may order the parolee placed in a community control program. Placement in community control shall be utilized by the Commission, in its judgment, for parole violators who are not suitable for restoration to standard supervision and would, therefore, be revoked if not for the alternative of community control placement. When ordering such placement in community control, the Commission shall specify:

(a) The proven violation or violations;

(b) The term of community control which may exceed the original term of parole but not exceed statutorily prescribed limits. This term may be reduced by subsequent order of the Commission;

(c) The new term of parole which shall not exceed statutorily prescribed limits nor be less than the term of community control;

(d) Standard community control conditions ordered to be applicable;

(e) Special community control conditions based upon individual case study of the parolee; and,

(f) Additional parole or release conditions, if any, in the event the community control term is less than the resulting parole or release term.

(25) Release on Own Recognizance:

(a) At a scheduled final revocation hearing, a Commissioner can place an alleged parole violator on ROR when the final hearing is postponed or continued.

(b) During the final revocation hearing, a Commissioner may place the parolee charged with violation on ROR when:

1. The parolee was on ROR prior to the convening of the final revocation hearing.

2. Insufficient evidence is produced to sustain any violation of parole.

3. Upon finding that the parolee did violate one or more conditions of parole, the hearing officer announces his intention to recommend action other than revocation of parole.

(c) Subsequent to the final revocation hearing in which there was a finding that the parolee did violate one or more conditions of parole, the hearing officer can recommend the parole violator be placed on ROR upon receipt of pertinent favorable information. Violations of the conditions of release can cause an order to revoke the ROR to be executed by a Commissioner when reliable information is received of violation of release on recognizance. Such order shall be sufficient to cause the arrest and return of the parolee to custody.

(26) Violation of the conditions of parole for grounds other than for a new conviction: An inmate who is found guilty for a violation of the conditions of his parole on grounds other than for the commission of a new felony or misdemeanor offense may be reinstated to parole, discharged from parole or revoked. The following information should be considered in making that determination:

(a) The preponderance of available evidence suggests that the parolee would pose a danger to public safety or would likely engage in new criminal conduct if reinstated to parole;

(b) The parolee has previous violations of the conditions of his parole under the current sentence;

(c) The parolee's behavior demonstrates the inability or unwillingness of the parolee to conform to minimum parole restraints so as to prevent successful completion of the Court imposed sentence outside of actual confinement. Any parole violation leading to revocation is the manifestation that the parolee's record during confinement was NOT good. These inmates will be scheduled for interview to determine whether or not they are eligible for consideration for parole within 6 months of the revocation.

(27) Should the Commission decide to revoke the parole, the parolee shall be entitled to all credit for time spent in custody prior to the revocation hearing for all charges that appear on the warrant and/or notice of hearing. Time spent in other jurisdictions as a result of intervening sentences shall be considered by the Commission. The Commission shall consider the credit for time served on parole in each case. The actual award of such credit is discretionary with the Commission. Credit for time served on parole shall be reflected in the Commission's order.

(28) If the Commission's decision is to revoke the parole, the parolee shall be scheduled for an interview by a Commission representative within six months from the date the Commission's order revoking parole. The purpose of this interview shall be to formulate a recommendation to the Commission for the setting of a presumptive parole release date consistent with appropriate statutory requirements and Commission policies and practices as reflected in these rules. Should the parolee have received a prison commitment a presumptive parole release date shall be established according to appropriate statutory requirements and Commission practices and policies as reflected in these rules regarding newly sentenced inmates.

Fla. Admin. Code Ann. R. 23-21.022

Rulemaking Authority 947.07, 947.20 FS. Law Implemented 947.23 FS.

New 9-10-81, Amended 10-1-82, 7-1-84, Formerly 23-21.22, Amended 5-10-87, 1-26-93, 1-5-94, 8-17-06, 3-31-10, 2-12-13, Amended by Florida Register Volume 43, Number 129, July 5, 2017 effective 7/16/2017.

New 9-10-81, Amended 10-1-82, 7-1-84, Formerly 23-21.22, Amended 5-10-87, 1-26-93, 1-5-94, 8-17-06, 3-31-10, 2-12-13, 7-16-17.