Fla. Admin. Code R. 23-25.005

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

Section 23-25.005 - Revocation of Addiction Recovery Supervision

(1) Warrants.

(a) A warrant for the arrest of a Releasee shall only be executed by a Commissioner except in the case of an emergency warrant as provided in subsection (2), herein. The decision to issue a warrant shall be based on evidence which indicates reasonable grounds to believe a Releasee has violated a condition of addiction recovery supervision. The issuance of a warrant is discretionary.

(b) Warrant requests will be reviewed by Commission staff for sufficiency of information and if found sufficient, staff shall submit a warrant request to a Commissioner for review.

(c) The reviewing Commissioner will execute a warrant, deny the warrant request, or have the warrant request placed before a panel of no fewer than two Commissioners for a decision.

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

(e) If staff submits a warrant request to a Commissioner for a review, the reviewing Commissioner shall execute the warrant, deny the warrant, or have the warrant request placed before a panel of no fewer than two (2) Commissioners for a decision. Should a warrant be issued, such will be transmitted to the requesting agency for appropriate service or filing. Alleged violators of addiction recovery supervision will be entered into the Florida Crime Information Center and the National Crime Information Center, unless in custody. The Commission has authority to pursue extradition of alleged violators from other jurisdictions.

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

(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 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 there are reasonable grounds to believe a Releasee violated the conditions of addiction recovery supervision.

(c) Should an emergency warrant be issued, Commission staff will transmit the warrant to the detaining agency for appropriate service or filing and enter information regarding the Releasee into the Florida Crime Information Center and National Crime Information Center, unless the Releasee is in custody. The Commission has authority to pursue extradition of alleged violators from other jurisdictions.

(3) Release on Recognizance.

(a) The Commission or a Commissioner may at any time during the violation process release a Releasee on recognizance. Such release will be conditioned upon the Releasee's appearance at any hearings noticed by the Commission or until further order of the Commission and may include any other condition deemed warranted from the Commission's review of the record.

(b) A review regarding release on recognizance for alleged addiction recovery supervision 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 Releasee 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 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 Releasee. Should the Commission or an authorized representative receive reliable information that the Releasee has violated the conditions of the release on recognizance, a Commissioner can enter an order revoking the release on recognizance. Such order shall be sufficient to cause the arrest and return of the Releasee to custody.

(4) Addiction Recovery Supervision Violation Hearing.

(a) A Commissioner or a duly authorized representative of the Commission shall convene a Violation Hearing within 45 days after notification of the arrest in the State of Florida of a Releasee charged with violation(s), unless waived by the Releasee, or 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.

(b) The Releasee shall be informed, in writing, at least 14 days prior to the 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 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 Violation Hearing, the disclosure of evidence that will be presented at the 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 the guidelines of the United States Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778 (1973).

(c) Waiver of Addiction Recovery Supervision.

1. A 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 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 Violation Hearing shall be convened after appropriate notice.

2. A 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 releasee has completed his or her sentence in the other jurisdiction and is returned to Florida. The 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 the execution of the waiver. Upon receipt of a timely waiver withdrawal request, a violation hearing shall be convened after appropriate notice.

(d) The Releasee may request that the Violation Hearing be postponed 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 Releasee shall toll the 45 day period until notification is received by the Commission that the pending criminal charges have been resolved or the Releasee elects to proceed with or waive the hearing. If there are also pending technical charges, the granting of the postponement also postpones disposition of the technical charges until such time as the criminal charges are resolved.

(e) The Releasee may request that the Violation Hearing be continued upon showing of good cause. The request for continuance may 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 Releasee shall toll the 45 day period until the hearing is reconvened. If a Violation Hearing has been convened, such may be continued beyond 45 days on the motion of the Releasee, the Commission or duly authorized representative of the Commission, provided the record reflects a good cause for such continuance.

(f) 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.

(g) Subpoenas and subpoenas duces tecum for the Releasee and the Commission shall be issued by a Commissioner or a duly authorized representative of the Commission on behalf of the State or the Releasee. The Commission, a Commissioner or a duly authorized representative of the Commission will 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 may waive representation by an attorney, provided the waiver is reflected clearly in writing or in the record of the proceeding. Should the Releasee desire, retained counsel may represent the Releasee at the hearing. If the Releasee desires counsel and has not retained one, the following procedure shall apply:

1. The person conducting the hearing shall determine the Releasee's financial ability to retain private counsel. When the person conducting the hearing determines a Releasee has the ability to retain private counsel, reasonable time shall be permitted for the Releasee to secure counsel, if the Releasee so desires.

2. If the person conducting the hearing concludes the Releasee is unable to secure counsel by reason of indigence, the person conducting the hearing shall then proceed to determine if the 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 the violation hearing, the releasee has a right to speak on his/her own behalf. The person conducting the hearing has authority to elect to rule on legal matters during the course of the violation hearing or may elect to withhold ruling pending consultation with counsel or staff.

(j) Based on evidence presented at the Violation Hearing, or received by stipulation, the person conducting the hearing shall make findings of fact regarding the alleged violations, with a written recommendation to the Commission. When the Commission finds that the Releasee has committed one or more violations, the Commission shall enter an order revoking the addiction recovery supervision, restoring the Releasee to supervision or such an order as deemed appropriate. Notification by copy of the Commission order shall be provided to the Releasee. If the decision of the Commission is to revoke, the order entered shall contain the condition(s) that have been violated and the evidence relied upon.

(k) The person conducting the hearing has authority to elect to receive information following the Violation Hearing if the Releasee stipulates to the receipt of such information and such stipulation is reflected in the record.

(l) When a panel of no fewer than two Commissioners revokes addiction recovery supervision, the Releasee shall be entitled to credit for time spent in custody on all charges apprearing on the Commission's warrant and/or notice of hearing prior to the violation hearing. Time spent in another jurisdiction as a result of intervening sentences shall be considered. Credit for time in custody as decided by the panel shall be reflected in the order of revocation of addiction recovery supervision.

(m) The Commission shall consider the credit for time served on addiction recovery supervision in each case. The actual award of such credit is discretionary with the Commission. Credit for time served on addiction recovery supervision shall be reflected in the Commission's order.

(n) 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.

Fla. Admin. Code Ann. R. 23-25.005

Rulemaking Authority 944.4731, 947.07 FS. Law Implemented 944.4731, 947.141 FS.

New 2-10-03, Amended 3-31-10, 2-12-13, Amended by Florida Register Volume 43, Number 129, July 5, 2017 effective 7/16/2017.

New 2-10-03, Amended 3-31-10, 2-12-13, 7-16-17.