Fla. Admin. Code Ann. R. 33-601.307 - Disciplinary Hearings

(1)

(a) No hearing shall commence prior to 24 hours following the delivery of the charges except when the inmate's release date does not allow time for such notice or the inmate waives the 24 hour period. In such cases, an explanation shall be provided in the basis of findings section of the disciplinary report. The inmate may waive the 24-hour waiting period. In such cases, a waiver must be signed by the inmate, witnessed by an employee, and copies attached to each copy of the disciplinary report. Form DC6-112D, 24 Hour/Refusal to Appear Waiver Form, shall be used for this purpose. The disciplinary team or hearing officer shall provide an explanation in the basis of findings section whenever the waiver process is utilized. Form DC6-112D is incorporated by reference in Rule 33-601.313, F.A.C.

(b) The inmate charged shall be present at the disciplinary hearing unless a confirmed medical condition makes the inmate unable to attend, the inmate demonstrates disruptive behavior, either before or during the hearing, that impedes the process or poses a threat to the safety of others or the security of the institution, or the inmate has waived his right to be present. If the inmate waives the right to be present or refuses to be present, Form DC6-112D, 24 Hour/Refusal to Appear Waiver Form, shall be signed by the inmate and witnessed by an employee. If the inmate refuses to sign the form, this shall be noted and signed by the employee. When an inmate waives the right to be present at the hearing, the inmate may not submit a written closing statement to the disciplinary team or hearing officer in place of the oral closing statement permitted in paragraph (1)(g). If the inmate's disruptive conduct makes it necessary to remove the inmate from the hearing, the hearing shall be conducted in the inmate's absence. The reason for the inmate's absence shall be explained in the basis of decision section of the disciplinary report.

(c) The hearing officer or disciplinary team member shall read the charge, ask the inmate if the charge is understood, and explain the range of penalties that could be imposed if there is a finding of guilt.

(d) The inmate shall be asked whether staff assistance is required or desired for the hearing. If in the opinion of the hearing officer or disciplinary team the inmate needs staff assistance, such assistance shall be assigned.

(e) In the case of minor violations the hearing officer shall explain to the inmate that he may request that the case be referred to the disciplinary team.

(f) The hearing officer or disciplinary team shall read the statement of facts to the inmate and the inmate shall be asked to plea.

(g) If the inmate pleads "guilty, " no further evidence needs to be heard. If the inmate pleads "not guilty, " evidence is to be presented, including witness statement forms obtained from witnesses. If evidence is not revealed to the inmate, the reason(s) shall be documented in the comment section of Form DC6-112B, Witness Disposition Form, the comment section of Form DC6-151, Documentary or Physical Evidence Disposition or the comment section of Form DC6-2028, Disposition of Videotape/Audiotape Evidence, depending on the nature of the evidence, and in the witness comments section in the Department's automated database. Forms DC6-112B, DC6-151, and DC6-2028 are incorporated by reference in Rule 33-601.313, F.A.C. The inmate may make only an oral closing statement concerning the infraction for consideration by the hearing officer or disciplinary team. In the event the inmate refuses to enter a plea, it shall be treated as a "not guilty" plea insofar as hearing procedures are concerned. A "no contest" plea shall be handled as a guilty plea.

(h) The hearing officer or disciplinary team shall ensure the following in accordance with Rule 33-601.308, F.A.C.:

1. That a decision of guilt or innocence is made only on the official charge listed on the disciplinary report;

2. That the disciplinary action is proportionate to the infraction;

The hearing officer or the disciplinary team may utilize available resource personnel such as health services staff, work supervisors, or other personnel in a consultative capacity. When consultations occur as part of the hearing process it shall be documented in the basis of findings section of the Disciplinary Report.

(2) The hearing officer or chairman of the disciplinary team has the authority to require the following actions:

(a) That other supporting documents be presented;

(b) That the employee filing the charge personally appear at the hearing;

(c) That the investigating officer appear at the hearing;

(d) That any witness(es) appear at the hearing;

(e) That any other individuals appear at the hearing to clarify information or facts related to the disciplinary report; and

(f) That further investigation be conducted, or evidence presented, or statements presented of unavailable witnesses.

(3) The inmate may request that witnesses appear at the hearing, but inmate witnesses shall not be routinely called before the disciplinary team or hearing officer to provide live testimony for the following reasons:

(a) Multiple hearings are routinely scheduled at one time and the presence of witnesses during these hearings presents a potential security risk for the facility and the safety of staff and inmates as well as a diversion of additional security staff from assigned posts.

(b) The routine presence of inmate witnesses during hearings would cause a disruption in the orderly operation of the facility, as it removes inmates from routine work assignments and programs.

(c) The testimony of witnesses requested by the charged inmate shall be presented at the hearing through Form DC6-112C, Witness Statement Form, unless the inmate:

1. Has completed and signed the witness request form during the investigation;

2. Makes a request at the hearing for a witness to appear to provide live testimony; and

3. The disciplinary team or hearing officer determines that the reason provided by the charged inmate for requesting live testimony overcomes the burden on institutional staff caused by the retrieval and escort of live witnesses as well as the diversion of security staff from assigned posts due to the potential security risk that may result from the appearance of live inmate witnesses and the disruption to the assignments and activities of inmate witnesses. Form DC6-112C is incorporated by reference in Rule 33-601.313, F.A.C.

(d) Failure to sign and complete Form DC6-112B, Witness Disposition Form, during the investigation constitutes waiver of the opportunity to call witnesses either live or by written statement. Form DC6-112B must be used for listing witnesses. Listing witness names on any other document, including Form DC6-112C, Witness Statement, will not result in their being considered.

(e) Additional witnesses. A request for an additional witness who was not listed on the witness request form will be granted if the inmate makes the request at hearing for the additional witness, the expected testimony proffered by the charged inmate indicates that the testimony is material, relevant, and non-repetitive and the inmate presents extraordinary circumstances which prevented him from naming the witness during the investigation. The testimony of the additional witness shall be presented by written statement unless the procedure of paragraph 33-601.307(3)(c), F.A.C., is followed.

(f) In no case shall a witness be called live or by written statement if his testimony would be irrelevant, immaterial or repetitive.

(g) Witnesses shall not be called or certain information disclosed if doing so would create a risk of reprisal, undermine authority or otherwise present a threat to the security or order of the institution. The inmate witnesses must be willing to testify by means of an oral or written statement provided to the investigating officer, hearing officer, or the disciplinary team.

(h) If the disciplinary team or hearing officer utilizes confidential informant information during the hearing, the disciplinary team or hearing officer shall determine whether the informant has direct or indirect knowledge of the events in question. The disciplinary team or hearing officer shall consider the informant's reliability by analyzing the informant's past record for providing accurate or inaccurate information. The disciplinary team or hearing officer shall not accept assurance alone from an officer as to the authenticity of the informant's information. Hearsay and second-hand knowledge not corroborated by other evidence shall not be used to support a finding of guilt. Unless supported by other evidence, information provided by a single informant shall not be used to support a finding of guilt unless the information is especially compelling. The disciplinary team or hearing officer shall document the information used to determine guilt and the reliability of the information in the basis of decision section of Form DC6-112E, Disciplinary Hearing Worksheet. Form DC6-112E is incorporated by reference in Rule 33-601.313, F.A.C. If disclosure of the information would endanger the informant or adversely affect institutional security and order, the disciplinary team or hearing officer shall document the information and the reasons for not revealing it to the inmate in the comment section of Form DC6-112B, Witness Disposition Form.

(i) If a witness is requested by the disciplinary team or hearing officer to appear at the hearing and is unavailable the witness statement form shall be accepted as testimony. Signed witness statements used as testimony shall be read to the charged inmate at the hearing except as provided in paragraphs (a) and (c) above. Where a witness statement is not read or the inmate witness does not appear at the hearing as requested, the reason shall be recorded on Form DC6-112B, Witness Disposition Form.

(j) The charged inmate shall not be permitted to question or cross examine witnesses during the hearing.

(k) The only persons present during disciplinary team deliberations shall be the disciplinary team, employees being trained, and others whom the warden, the chief of security, or the classification supervisor have previously authorized to be present after having determined that these persons will not disrupt the hearing and will benefit by observing the proceedings.

(4) The original charge cannot be reduced by the disciplinary team to what might be termed a "lesser included offense." Up to the point of the disciplinary team or hearing officer announcing their decision to the inmate, the hearing may be postponed.

(a) The entire disciplinary report may be returned for further review, investigation or correction.

(b) If further review suggests a different charge should have been indicated or that additions, deletions or changes should be made in the statement of facts (change section narrative) then the originator shall rewrite the disciplinary report, a copy of the new or corrected disciplinary report shall be delivered to the inmate, a new investigation shall be prepared and the disciplinary report shall be scheduled for a hearing. The original report shall not be processed. Notation of this occurrence shall be incorporated in the findings of the disciplinary team or hearing officer with an indication of the reason that the disciplinary report was rewritten and delayed.

(c) The inmate shall be informed of the final decision by the hearing officer or disciplinary team and the basis for that decision.

(d) The hearing officer's electronic signature and name or the electronic signature and names of all members of the disciplinary team shall be typed or printed on the Disciplinary Report.

(5)

(a) The warden, or designee, of an institution or facility shall determine how an inmate's personal property is to be managed when that inmate has to appear at a disciplinary hearing by evaluating the following factors:

1. Maintenance of proper accountability of inmate property;

2. The likelihood of disruptive and belligerent behavior on the part of the inmate in the event that the inmate is found guilty at the disciplinary hearing; and

3. The physical layout of the institution.

(b) The warden, or designee, is authorized to require an inmate to bring all of the inmate's personal property to the disciplinary hearing if it is determined that this is necessary after evaluating the factors set out above.

(6) Notwithstanding any other rule to the contrary, when an inmate escapes or is otherwise absent from Department custody, the Department may conduct a disciplinary hearing in the inmate's absence at the institution in which the inmate was last confined. Any gain time forfeiture imposed in accordance with this section shall be immediately effective to modify the inmate's release date. When the inmate returns to custody the Warden shall have the charges reheard before a disciplinary team within 60 days after the inmate's arrival at a permanent institution. The disciplinary team shall ensure that the inmate has all rights required for a hearing as set forth in this rule.

Notes

Fla. Admin. Code Ann. R. 33-601.307

Rulemaking Authority 944.09 FS. Law Implemented 20.315, 944.09 FS.

New 3-12-84, Formerly 33-22.06, Amended 12-30-86, 10-1-95, 12-10-97, 5-19-98, Formerly 33-22.006, Amended 5-21-00, 2-11-01, 3-22-05, 10-12-05, 7-17-07, Amended by Florida Register Volume 40, Number 224, November 18, 2014 effective 12/3/2014.

New 3-12-84, Formerly 33-22.06, Amended 12-30-86, 10-1-95, 12-10-97, 5-19-98, Formerly 33-22.006, Amended 5-21-00, 2-11-01, 3-22-05, 10-12-05, 7-17-07, 12-3-14.