Fla. Admin. Code Ann. R. 23-23.011 - Revocation of Conditional Release

(1) Warrants.

(a) A warrant for the arrest of a conditional releasee shall be executed only 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 conditional release. The issuance of a warrant is discretionary, except in the case of a sexual predator, the warrant is not discretionary and must be issued, pursuant to Section 947.141(1), F.S., provided reasonable grounds exist that a violation has occurred.

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

(c) If staff submits a warrant request to a Commissioner for a review, the reviewing Commissioner will elect to execute the warrant, deny the warrant, or to have the warrant request 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.

(e) Should a warrant be issued, such will be transmitted to the requesting agency for appropriate service or filing. Alleged violators of conditional 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) 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 or have the dismissal request placed on the docket before a panel of no fewer than two (2) Commissioners for a decision.

(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 reasonable grounds to believe a release violated the conditions of conditional releasee. 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 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.

(3) Release on Recognizance.

(a) The Commission or a Commissioner may at any time during the violation process, release a conditional releasee on recognizance bond, conditioned upon the conditional 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 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 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 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) Conditional Release 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 conditional releasee charged with violation(s), unless waived by the releasee.

(b) The conditional releasee shall be informed, in writing, at least 14 days prior to the conditional 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 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 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 the guidelines of the United States Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778 (1973).

(c) Waiver of Conditional Release Violation Hearing.

1. A conditional 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 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 release violation hearing shall be convened after appropriate notice.

2. A conditional 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 releasee has completed his or her sentence in the other jurisdiction and is returned to Florida. The conditional 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 conditional release violation hearing shall be convened after appropriate notice.

(d) The conditional releasee is entitled to request that his conditional release 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 or upon a showing of good cause. The request for postponement or 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 or postponement on behalf of the conditional releasee constitutes a waiver by the conditional releasee of all time constraints, any requirement for a local hearing, and shall postpone disposition of the violations 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 violations, the granting of the postponement also postpones disposition of the technical violations until such time as the criminal charges are resolved. In the event that the conditional release violation hearing has been convened, such may be postponed or continued beyond 45 days as provided by statute, on the motion of the conditional releasee, the Commission or duly authorized representative of the Commission, provided the record reflects a good cause reason 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 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 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 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 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.

(h) At the 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 conditional releasee desire, retained counsel may represent the conditional releasee at the hearing. In the event the conditional releasee desires counsel and has not retained one, the following procedure shall apply:

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

2. If the person conducting the hearing concludes the conditional releasee is unable to secure counsel by reason of indigency, the person conducting the hearing shall then proceed to determine if the conditional 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 release violation hearing, the conditional 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 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 conditional releasee has committed one or more violations, the Commission shall within a reasonable time enter an order revoking the conditional release, restoring the conditional releasee to supervision or such other order as deemed appropriate. Notification by copy of the Commission order shall be provided to the conditional 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 person conducting the hearing has authority to elect to receive information following the violation hearing if the conditional 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 (2) Commissioners revokes conditional release, the conditional 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 as decided by the panel shall be reflected in the order of revocation of conditional release.

(m) The Commission shall consider the credit for time served on conditional release in each case. The actual award of such credit is discretionary with the Commission. Credit for time served on conditional release 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.

Notes

Fla. Admin. Code Ann. R. 23-23.011

Rulemaking Authority 947.07 FS. Law Implemented 947.1405, 947.141 FS.

New 10-20-91, Amended 1-5-94, 4-20-94, 3-31-10, 2-12-13, Amended by Florida Register Volume 43, Number 129, July 5, 2017 effective 7/16/2017.

New 10-20-91, Amended 1-5-94, 4-20-94, 3-31-10, 2-12-13, 7-16-17.