Senate Bill 1428

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    Florida Senate - 1999                                  SB 1428

    By Senator Silver





    38-867-99                                               See HB

  1                      A bill to be entitled

  2         An act relating to postrelease supervision of

  3         offenders; creating the "Supervision of Violent

  4         Offenders Act of 1999"; amending s. 947.1405,

  5         F.S., relating to the Conditional Release

  6         Program Act; revising criteria for eligibility

  7         for conditional release; providing that an

  8         inmate who has committed any of specified

  9         crimes but who has not served at least one

10         prior felony commitment may be subject to

11         conditional release supervision; specifying

12         that certain inmates are to be released under

13         "conditional release" supervision; revising

14         terms and conditions of conditional release

15         supervision applicable to certain inmates

16         convicted of specified offenses or sentenced as

17         a habitual or violent felony offender or a

18         violent career criminal; providing for

19         applicability of such supervision to all

20         sentences under specified circumstances when an

21         inmate's overall term of sentences includes one

22         or more sentences on which the eligibility for

23         control release supervision is based; requiring

24         supervision by the Department of Corrections,

25         according to the conditions imposed by the

26         court when the inmate who is placed on

27         conditional release supervision also is subject

28         to probation or community control resulting

29         from a split sentence within the overall term

30         of sentences; providing for revocation of the

31         conditional release supervision without further

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         hearing by the commission in those cases when

  2         the court revokes probation or community

  3         control; providing for forfeiture of all

  4         gain-time under specified circumstances, and

  5         authorizing the Parole Commission to revoke the

  6         resulting deferred conditional release

  7         supervision and take other appropriate action;

  8         providing for the supervision to revert to the

  9         authority of the commission and be subject to

10         the conditions of the commission in certain

11         cases when the term of the probation or

12         community control expires before that of the

13         conditional release supervision; providing for

14         applicability of various changes made by the

15         act to certain inmates convicted of crimes

16         committed before, on, or after July 1, 1999;

17         providing for applicability of certain

18         provisions relating to the authority of the

19         commission to establish terms and conditions of

20         such release and to determine whether a

21         violation has occurred or revocation is

22         warranted; providing for applicability of a

23         requirement that certain offenders submit to

24         random substance abuse testing throughout the

25         term of such conditional release supervision;

26         reenacting s. 775.084(4)(i), relating to

27         violent career criminals, habitual felony

28         offenders, and habitual violent felony

29         offenders, s. 921.001(10), F.S., relating to

30         the Sentencing Commission and sentencing

31         guidelines, s. 944.70(1), relating to

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         conditions for release from incarceration, s.

  2         947.13(1)(f), F.S., relating to powers and

  3         duties of the Parole Commission, and s.

  4         947.141(1) and (2), F.S., relating to

  5         violations of conditional release, control

  6         release, or conditional medical release, to

  7         incorporate the amendment in references;

  8         providing an effective date.

  9

10         WHEREAS, the current sentencing guidelines are no

11  longer based on the four category levels of severity which

12  served as the criteria for conditional release eligibility,

13  and

14         WHEREAS, inmates who commit serious violent offenses

15  should be required to serve a period of time under strict

16  conditions of supervision when released from custody as a

17  result of accumulated gain-time, and

18         WHEREAS, the serious violent crimes which require a

19  period of strict supervision should be specified in statute

20  and include any attempt, solicitation, or conspiracy to commit

21  these serious violent crimes, and

22         WHEREAS, a conviction for one of the specified serious

23  violent crimes is sufficient in itself, without the necessity

24  of a prior felony commitment, to require imposition of a

25  period of strict conditional release supervision, and

26         WHEREAS, any violation of these strict conditions of

27  release which results in revocation of supervision should

28  result in the forfeiture of all accumulated gain-time, and

29         WHEREAS, when an inmate also has been subject to

30  conditions of probation or community control following release

31  from incarceration, and the inmate has violated these

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  conditions with the result that the probation or community

  2  control is revoked in a proceeding before a judge, the Florida

  3  Parole Commission should not be required to conduct a second

  4  administrative proceeding to revoke any concurrent or

  5  consecutive term of conditional release supervision, and

  6         WHEREAS, such a second administrative proceeding is not

  7  constitutionally required and is an unjustified and

  8  inefficient use of limited state resources, NOW, THEREFORE,

  9

10  Be It Enacted by the Legislature of the State of Florida:

11

12         Section 1.  This act may be cited as the "Supervision

13  of Violent Offenders Act of 1999."

14         Section 2.  Section 947.1405, Florida Statutes, is

15  amended to read:

16         947.1405  Conditional release program.--

17         (1)  This section and s. 947.141 may be cited as the

18  "Conditional Release Program Act."

19         (2)  Any inmate who:

20         (a)1.  Is convicted of a crime committed on or after

21  October 1, 1988, and before January 1, 1994, and any inmate

22  who is convicted of a crime committed on or after January 1,

23  1994, and before July 1, 1999, which crime is or was contained

24  in category 1, category 2, category 3, or category 4 of Rule

25  3.701 and Rule 3.988, Florida Rules of Criminal Procedure

26  (1993), and who has served at least one prior felony

27  commitment at a state or federal correctional institution;

28         2.(b)  Is sentenced as a habitual or violent habitual

29  offender or a violent career criminal pursuant to s. 775.084

30  based on an offense committed before July 1, 1999; or

31

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         3.(c)  Is found to be a sexual predator under s. 775.21

  2  or former s. 775.23, based on an offense committed before July

  3  1, 1999,

  4

  5  shall, upon reaching the tentative release date or provisional

  6  release date, whichever is earlier, as established by the

  7  Department of Corrections, be released under conditional

  8  release supervision subject to specified terms and conditions,

  9  including payment of the cost of supervision pursuant to s.

10  948.09. Such supervision shall be applicable to all sentences

11  within the overall term of sentences if an inmate's overall

12  term of sentences includes one or more sentences that are

13  eligible for conditional release supervision as provided

14  herein. Effective July 1, 1994, and applicable for offenses

15  committed on or after that date, the commission may require,

16  as a condition of conditional release, that the releasee make

17  payment of the debt due and owing to a county or municipal

18  detention facility under s. 951.032 for medical care,

19  treatment, hospitalization, or transportation received by the

20  releasee while in that detention facility. The commission, in

21  determining whether to order such repayment and the amount of

22  such repayment, shall consider the amount of the debt, whether

23  there was any fault of the institution for the medical

24  expenses incurred, the financial resources of the releasee,

25  the present and potential future financial needs and earning

26  ability of the releasee, and dependents, and other appropriate

27  factors. If any inmate placed on conditional release

28  supervision is also subject to probation or community control

29  resulting from a probationary or community control split

30  sentence within the overall term of sentences, the Department

31  of Corrections shall supervise such person according to the

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  conditions imposed by the court, and the commission shall

  2  defer to such supervision.  If the court revokes probation or

  3  community control and resentences the offender to a term of

  4  incarceration, such revocation also constitutes a sufficient

  5  basis for the revocation of the conditional release

  6  supervision on any nonprobationary or non-community-control

  7  sentence without further hearing by the commission.  If any

  8  such supervision on any nonprobationary or

  9  non-community-control sentence is revoked, such revocation may

10  result in a forfeiture of all gain-time, and the commission

11  may revoke the resulting deferred conditional release

12  supervision or take other action it considers appropriate.  If

13  the term of conditional release supervision exceeds that of

14  the probation or community control, then, upon expiration of

15  the probation or community control, authority for the

16  supervision shall revert to the commission, and the

17  supervision shall be subject to the conditions of the

18  commission. If an inmate has received a term of probation or

19  community control supervision to be served after release from

20  incarceration, the period of probation or community control

21  must be substituted for the conditional release supervision. A

22  panel of no fewer than two commissioners shall establish the

23  terms and conditions of any such release. If the offense was a

24  controlled substance violation, the conditions shall include a

25  requirement that the offender submit to random substance abuse

26  testing intermittently throughout the term of conditional

27  release supervision, upon the direction of the correctional

28  probation officer as defined in s. 943.10(3). The commission

29  shall also determine whether the terms and conditions of such

30  release have been violated and whether such violation warrants

31  revocation of the conditional release.

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         (b)  Has been convicted of any of the following

  2  offenses committed on or after July 1, 1999, or an attempt,

  3  solicitation, or conspiracy to commit any of the following

  4  offenses committed on or after July 1, 1999:

  5         1.  Sexual battery;

  6         2.  Lewd, lascivious, or indecent assault or act;

  7         3.  Murder in the first, second, or third degree;

  8         4.  Kidnapping;

  9         5.  Aggravated child abuse;

10         6.  False imprisonment;

11         7.  Sexual performance by a child;

12         8.  Selling or buying of a minor;

13         9.  Stalking or aggravated stalking;

14         10.  Incest;

15         11.  Burglary or armed burglary of an occupied

16  dwelling, building, or conveyance when any person was

17  assaulted or battered or a sex act was attempted or completed;

18         12.  Any battery or aggravated battery when a sex act

19  was attempted or completed;

20         13.  Resisting a law enforcement officer with violence

21  to the officer's person;

22         14.  Aggravated assault or aggravated battery on a law

23  enforcement officer;

24         15.  Felonious threats or extortion;

25         16.  DUI manslaughter;

26         17.  Robbery;

27         18.  Attempted murder of a law enforcement officer

28  engaged in duty;

29         19.  Arson;

30         20.  Carjacking;

31         21.  Home invasion robbery;

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         22.  Assault or battery upon a district school board

  2  employee; or

  3         23.  Written threats to kill or do bodily injury

  4

  5  or is sentenced as a habitual or violent habitual offender or

  6  a violent career criminal pursuant to s. 775.084 based on an

  7  offense committed on or after July 1, 1999, or is found to be

  8  a sexual predator based on an offense committed on or after

  9  July 1, 1999, under s. 775.21 shall, upon reaching the

10  tentative release date established by the Department of

11  Corrections, be released under conditional release supervision

12  subject to the terms and conditions determined by the

13  commission as provided in this subsection and subsection (3).

14  Such supervision shall be applicable to all sentences within

15  the overall term of sentences if an inmate's overall term of

16  sentences includes one or more sentences that are eligible for

17  conditional release supervision as provided herein.  If any

18  inmate placed on conditional release supervision is also

19  subject to probation or community control resulting from a

20  probationary or community control split sentence within the

21  overall term of sentences, the Department of Corrections shall

22  supervise such person according to the conditions imposed by

23  the court, and the commission shall defer to such supervision.

24  If the court revokes probation or community control and

25  resentences the offender to a term of incarceration, such

26  revocation also constitutes a sufficient basis for the

27  revocation of the conditional release supervision on any

28  nonprobationary or non-community-control sentence, without

29  further hearing by the commission.  If any such supervision on

30  any nonprobationary or non-community-control sentence is

31  revoked, such revocation may result in a forfeiture of all

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  gain-time, and the commission may revoke the resulting

  2  deferred conditional release supervision or take other action

  3  it considers appropriate.  If the term of conditional release

  4  supervision exceeds that of the probation or community

  5  control, then, upon expiration of the probation or community

  6  control, authority for the supervision shall revert to the

  7  commission, and the supervision shall be subject to the

  8  conditions of the commission.

  9         (c)  A panel of no fewer than two commissioners shall

10  establish the terms and conditions of any conditional release.

11  If the offense was a controlled substance violation, the

12  conditions shall include a requirement that the offender

13  submit, upon the direction of the correctional probation

14  officer as defined in s. 943.10(3), to random substance abuse

15  testing intermittently throughout the term of conditional

16  release supervision.  The commission shall also determine

17  whether the terms and conditions of such release have been

18  violated and whether such violation warrants revocation of the

19  conditional release.

20         (3)  As part of the conditional release process, the

21  commission shall determine:

22         (a)  The amount of reparation or restitution.

23         (b)  The consequences of the offense as reported by the

24  aggrieved party.

25         (c)  The aggrieved party's fear of the inmate or

26  concerns about the release of the inmate.

27         (4)  The commission shall provide to the aggrieved

28  party information regarding the manner in which notice of any

29  developments concerning the status of the inmate during the

30  term of conditional release may be requested.

31

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         (5)  Within 180 days prior to the tentative release

  2  date or provisional release date, whichever is earlier, a

  3  representative of the commission shall interview the inmate.

  4  The commission representative shall review the inmate's

  5  program participation, disciplinary record, psychological and

  6  medical records, and any other information pertinent to the

  7  impending release.  A commission representative shall conduct

  8  a personal interview with the inmate for the purpose of

  9  determining the details of the inmate's release plan,

10  including the inmate's planned residence and employment.  The

11  results of the interview must be forwarded to the commission

12  in writing.

13         (6)  Upon receipt of notice as required under s.

14  947.175, the commission shall conduct a review of the inmate's

15  record for the purpose of establishing the terms and

16  conditions of the conditional release.  The commission may

17  impose any special conditions it considers warranted from its

18  review of the record. If the commission determines that the

19  inmate is eligible for release under this section, the

20  commission shall enter an order establishing the length of

21  supervision and the conditions attendant thereto. However, an

22  inmate who has been convicted of a violation of chapter 794 or

23  found by the court to be a sexual predator is subject to the

24  maximum level of supervision provided, with the mandatory

25  conditions as required in subsection (7), and that supervision

26  shall continue through the end of the releasee's original

27  court-imposed sentence.  The length of supervision must not

28  exceed the maximum penalty imposed by the court.

29         (7)(a)  Any inmate who is convicted of a crime

30  committed on or after October 1, 1995, or who has been

31  previously convicted of a crime committed on or after October

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  1, 1995, in violation of chapter 794, s. 800.04, s. 827.071,

  2  or s. 847.0145, and is subject to conditional release

  3  supervision, shall have, in addition to any other conditions

  4  imposed, the following special conditions imposed by the

  5  commission:

  6         1.  A mandatory curfew from 10 p.m. to 6 a.m. The court

  7  may designate another 8-hour period if the offender's

  8  employment precludes the above specified time, and such

  9  alternative is recommended by the Department of Corrections.

10  If the court determines that imposing a curfew would endanger

11  the victim, the court may consider alternative sanctions.

12         2.  If the victim was under the age of 18, a

13  prohibition on living within 1,000 feet of a school, day care

14  center, park, playground, or other place where children

15  regularly congregate.

16         3.  Active participation in and successful completion

17  of a sex offender treatment program with therapists

18  specifically trained to treat sex offenders, at the releasee's

19  own expense. If a specially trained therapist is not available

20  within a 50-mile radius of the releasee's residence, the

21  offender shall participate in other appropriate therapy.

22         4.  A prohibition on any contact with the victim,

23  directly or indirectly, including through a third person,

24  unless approved by the victim, the offender's therapist, and

25  the sentencing court.

26         5.  If the victim was under the age of 18, a

27  prohibition, until successful completion of a sex offender

28  treatment program, on unsupervised contact with a child under

29  the age of 18, unless authorized by the commission without

30  another adult present who is responsible for the child's

31

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  welfare, has been advised of the crime, and is approved by the

  2  commission.

  3         6.  If the victim was under age 18, a prohibition on

  4  working for pay or as a volunteer at any school, day care

  5  center, park, playground, or other place where children

  6  regularly congregate, as prescribed by the commission.

  7         7.  Unless otherwise indicated in the treatment plan

  8  provided by the sexual offender treatment program, a

  9  prohibition on viewing, owning, or possessing any obscene,

10  pornographic, or sexually stimulating visual or auditory

11  material, including telephone, electronic media, computer

12  programs, or computer services that are relevant to the

13  offender's deviant behavior pattern.

14         8.  A requirement that the releasee must submit two

15  specimens of blood to the Florida Department of Law

16  Enforcement to be registered with the DNA database.

17         9.  A requirement that the releasee make restitution to

18  the victim, as determined by the sentencing court or the

19  commission, for all necessary medical and related professional

20  services relating to physical, psychiatric, and psychological

21  care.

22         10.  Submission to a warrantless search by the

23  community control or probation officer of the probationer's or

24  community controllee's person, residence, or vehicle.

25         (b)  For a releasee whose crime was committed on or

26  after October 1, 1997, in violation of chapter 794, s. 800.04,

27  s. 827.071, or s. 847.0145, and who is subject to conditional

28  release supervision, in addition to any other provision of

29  this subsection, the commission shall impose the following

30  additional conditions of conditional release supervision:

31

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         1.  As part of a treatment program, participation in a

  2  minimum of one annual polygraph examination to obtain

  3  information necessary for risk management and treatment and to

  4  reduce the sex offender's denial mechanisms. The polygraph

  5  examination must be conducted by a polygrapher trained

  6  specifically in the use of the polygraph for the monitoring of

  7  sex offenders, where available, and at the expense of the sex

  8  offender. The results of the polygraph examination shall not

  9  be used as evidence in a hearing to prove that a violation of

10  supervision has occurred.

11         2.  Maintenance of a driving log and a prohibition

12  against driving a motor vehicle alone without the prior

13  approval of the supervising officer.

14         3.  A prohibition against obtaining or using a post

15  office box without the prior approval of the supervising

16  officer.

17         4.  If there was sexual contact, a submission to, at

18  the probationer's or community controllee's expense, an HIV

19  test with the results to be released to the victim or the

20  victim's parent or guardian.

21         5.  Electronic monitoring when deemed necessary by the

22  community control or probation officer and his or her

23  supervisor, and ordered by the court at the recommendation of

24  the Department of Corrections.

25         (8)  It is the finding of the Legislature that the

26  population of offenders released from state prison into the

27  community who meet the conditional release criteria poses the

28  greatest threat to the public safety of the groups of

29  offenders under community supervision. Therefore, the

30  Department of Corrections is to provide intensive supervision

31  by experienced correctional probation officers to conditional

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  release offenders. Subject to specific appropriation by the

  2  Legislature, caseloads may be restricted to a maximum of 40

  3  conditional release offenders per officer to provide for

  4  enhanced public safety and to effectively monitor conditions

  5  of electronic monitoring or curfews, if so ordered by the

  6  commission.

  7         Section 3.  For the purpose of incorporating the

  8  amendments made by this act to section 947.1405, Florida

  9  Statutes, in references thereto, paragraph (i) of subsection

10  (4) of section 775.084, Florida Statutes, 1998 Supplement, is

11  reenacted to read:

12         775.084  Violent career criminals; habitual felony

13  offenders and habitual violent felony offenders; definitions;

14  procedure; enhanced penalties.--

15         (4)

16         (i)  The provisions of s. 947.1405 shall apply to

17  persons sentenced as habitual felony offenders and persons

18  sentenced as habitual violent felony offenders.

19         Section 4.  For the purpose of incorporating the

20  amendments made by this act to section 947.1405, Florida

21  Statutes, in references thereto, subsection (1) of section

22  944.70, Florida Statutes, 1998 Supplement, is reenacted to

23  read:

24         944.70  Conditions for release from incarceration.--

25         (1)(a)  A person who is convicted of a crime committed

26  on or after October 1, 1983, but before January 1, 1994, may

27  be released from incarceration only:

28         1.  Upon expiration of the person's sentence;

29         2.  Upon expiration of the person's sentence as reduced

30  by accumulated gain-time;

31

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1         3.  As directed by an executive order granting

  2  clemency;

  3         4.  Upon attaining the provisional release date;

  4         5.  Upon placement in a conditional release program

  5  pursuant to s. 947.1405; or

  6         6.  Upon the granting of control release pursuant to s.

  7  947.146.

  8         (b)  A person who is convicted of a crime committed on

  9  or after January 1, 1994, may be released from incarceration

10  only:

11         1.  Upon expiration of the person's sentence;

12         2.  Upon expiration of the person's sentence as reduced

13  by accumulated meritorious or incentive gain-time;

14         3.  As directed by an executive order granting

15  clemency;

16         4.  Upon placement in a conditional release program

17  pursuant to s. 947.1405 or a conditional medical release

18  program pursuant to s. 947.149; or

19         5.  Upon the granting of control release, including

20  emergency control release, pursuant to s. 947.146.

21         Section 5.  For the purpose of incorporating the

22  amendments made by this act to section 947.1405, Florida

23  Statutes, in references thereto, paragraph (f) of subsection

24  (1) of section 947.13, Florida Statutes, is reenacted to read:

25         947.13  Powers and duties of commission.--

26         (1)  The commission shall have the powers and perform

27  the duties of:

28         (f)  Establishing the terms and conditions of persons

29  released on conditional release under s. 947.1405, and

30  determining subsequent ineligibility for conditional release

31

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  due to a violation of the terms or conditions of conditional

  2  release and taking action with respect to such a violation.

  3         Section 6.  For the purpose of incorporating the

  4  amendments made by this act to section 947.1405, Florida

  5  Statutes, in references thereto, subsections (1) and (2) of

  6  section 947.141, Florida Statutes, are reenacted to read:

  7         947.141  Violations of conditional release, control

  8  release, or conditional medical release.--

  9         (1)  If a member of the commission or a duly authorized

10  representative of the commission has reasonable grounds to

11  believe that an offender who is on release supervision under

12  s. 947.1405, s. 947.146, or s. 947.149 has violated the terms

13  and conditions of the release in a material respect, such

14  member or representative may cause a warrant to be issued for

15  the arrest of the releasee; if the offender was found to be a

16  sexual predator, the warrant must be issued.

17         (2)  Upon the arrest on a felony charge of an offender

18  who is on release supervision under s. 947.1405, s. 947.146,

19  or s. 947.149, the offender must be detained without bond

20  until the initial appearance of the offender at which a

21  judicial determination of probable cause is made. If the

22  magistrate determines that there was no probable cause for the

23  arrest, the offender may be released. If the magistrate

24  determines that there was probable cause for the arrest, such

25  determination also constitutes reasonable grounds to believe

26  that the offender violated the conditions of the release.

27  Within 24 hours after the magistrate's finding of probable

28  cause, the detention facility administrator or designee shall

29  notify the commission and the department of the finding and

30  transmit to each a facsimile copy of the probable cause

31  affidavit or the sworn offense report upon which the

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    Florida Senate - 1999                                  SB 1428
    38-867-99                                               See HB




  1  magistrate's probable cause determination is based. The

  2  offender must continue to be detained without bond for a

  3  period not exceeding 72 hours excluding weekends and holidays

  4  after the date of the probable cause determination, pending a

  5  decision by the commission whether to issue a warrant charging

  6  the offender with violation of the conditions of release. Upon

  7  the issuance of the commission's warrant, the offender must

  8  continue to be held in custody pending a revocation hearing

  9  held in accordance with this section.

10         Section 7.  This act shall take effect July 1, 1999.

11

12            *****************************************

13                       LEGISLATIVE SUMMARY

14
      Revises the Conditional Release Program Act. Revises
15    criteria for eligibility for conditional release. Revises
      terms and conditions of conditional release supervision
16    applicable to an inmate convicted of any of specified
      offenses or sentenced as a habitual or violent felony
17    offender or a violent career criminal.  Provides that an
      inmate who has committed any of specified crimes but who
18    has not served at least one prior felony commitment may
      be subject to conditional release supervision.  Requires
19    supervision by the Department of Corrections, according
      to the conditions imposed by the court, when the inmate
20    who is placed on conditional release supervision also is
      subject to probation or community control resulting from
21    a split sentence within the overall term of sentences.
      Provides for revocation of the conditional release
22    supervision without further hearing by the commission in
      those cases when the court revokes probation or community
23    control.  Provides for forfeiture of all gain-time under
      specified circumstances. Provides for applicability of
24    various changes made by the act to certain inmates
      convicted of crimes committed before, on, or after July
25    1, 1999. (See bill for details.)

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