Senate Bill 1428c1

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    Florida Senate - 1999                           CS for SB 1428

    By the Committee on Criminal Justice and Senator Silver





    307-1801-99

  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. 947.01,

  5         F.S., relating to the number of members on the

  6         Parole Commission; increasing the number of

  7         commissioners; amending s. 947.1405, F.S.,

  8         relating to the Conditional Release Program

  9         Act; revising criteria for eligibility for

10         conditional release; providing that an inmate

11         who has committed any of specified crimes but

12         who has not served at least one prior felony

13         commitment may be subject to conditional

14         release supervision; specifying that certain

15         inmates are to be released under "conditional

16         release" supervision; revising terms and

17         conditions of conditional release supervision

18         applicable to certain inmates convicted of

19         specified offenses or sentenced as a habitual

20         or violent felony offender or a violent career

21         criminal; providing for applicability of such

22         supervision to all sentences under specified

23         circumstances when an inmate's overall term of

24         sentences includes one or more sentences on

25         which the eligibility for control release

26         supervision is based; requiring supervision by

27         the Department of Corrections, according to the

28         conditions imposed by the court when the inmate

29         who is placed on conditional release

30         supervision also is subject to probation or

31         community control resulting from a split

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  1         sentence within the overall term of sentences;

  2         providing for revocation of the conditional

  3         release supervision without further hearing by

  4         the commission in those cases when the court

  5         revokes probation or community control;

  6         providing for forfeiture of all gain-time under

  7         specified circumstances, and authorizing the

  8         Parole Commission to revoke the resulting

  9         deferred conditional release supervision and

10         take other appropriate action; providing for

11         the supervision to revert to the authority of

12         the commission and be subject to the conditions

13         of the commission in certain cases when the

14         term of the probation or community control

15         expires before that of the conditional release

16         supervision; providing for applicability of

17         various changes made by the act to certain

18         inmates convicted of crimes committed before,

19         on, or after July 1, 1999; providing for

20         applicability of certain provisions relating to

21         the authority of the commission to establish

22         terms and conditions of such release and to

23         determine whether a violation has occurred or

24         revocation is warranted; providing for

25         applicability of a requirement that certain

26         offenders submit to random substance abuse

27         testing throughout the term of such conditional

28         release supervision; reenacting s.

29         775.084(4)(i), relating to violent career

30         criminals, habitual felony offenders, and

31         habitual violent felony offenders, s.

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  1         921.001(10), F.S., relating to the Sentencing

  2         Commission and sentencing guidelines, s.

  3         944.70(1), relating to conditions for release

  4         from incarceration, s. 947.13(1)(f), F.S.,

  5         relating to powers and duties of the Parole

  6         Commission, and s. 947.141(1) and (2), F.S.,

  7         relating to violations of conditional release,

  8         control release, or conditional medical

  9         release, to incorporate the amendment in

10         references; providing an effective date.

11

12         WHEREAS, the current sentencing guidelines are no

13  longer based on the four category levels of severity which

14  served as the criteria for conditional release eligibility,

15  and

16         WHEREAS, inmates who commit serious violent offenses

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

18  conditions of supervision when released from custody as a

19  result of accumulated gain-time, and

20         WHEREAS, the serious violent crimes which require a

21  period of strict supervision should be specified in statute

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

23  these serious violent crimes, and

24         WHEREAS, a conviction for one of the specified serious

25  violent crimes is sufficient in itself, without the necessity

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

27  period of strict conditional release supervision, and

28         WHEREAS, any violation of these strict conditions of

29  release which results in revocation of supervision should

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

31

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  1         WHEREAS, when an inmate also has been subject to

  2  conditions of probation or community control following release

  3  from incarceration, and the inmate has violated these

  4  conditions with the result that the probation or community

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

  6  Parole Commission should not be required to conduct a second

  7  administrative proceeding to revoke any concurrent or

  8  consecutive term of conditional release supervision, and

  9         WHEREAS, such a second administrative proceeding is not

10  constitutionally required and is an unjustified and

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

12

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

14

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

16  of Violent Offenders Act of 1999."

17         Section 2.  Section 947.01, Florida Statutes, is

18  amended to read:

19         947.01  Parole Commission; creation; number of

20  members.--A Parole Commission is created to consist of six

21  members who are residents of the state.  Effective July 1,

22  1999, the membership of the commission shall be four members.

23  Effective July 1, 1996, the membership of the commission shall

24  be three members.

25         Section 3.  Section 947.1405, Florida Statutes, is

26  amended to read:

27         947.1405  Conditional release program.--

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

29  "Conditional Release Program Act."

30         (2)  Any inmate who:

31

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

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

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

  4  1994, and before July 1, 1999, which crime is or was contained

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

  6  3.701 and Rule 3.988, Florida Rules of Criminal Procedure

  7  (1993), and who has served at least one prior felony

  8  commitment at a state or federal correctional institution;

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

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

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

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

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

14  1, 1999,

15

16  shall, upon reaching the tentative release date or provisional

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

18  Department of Corrections, be released under conditional

19  release supervision subject to specified terms and conditions,

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

21  948.09. Such supervision shall be applicable to all sentences

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

23  term of sentences includes one or more sentences that are

24  eligible for conditional release supervision as provided

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

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

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

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

29  detention facility under s. 951.032 for medical care,

30  treatment, hospitalization, or transportation received by the

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

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  1  determining whether to order such repayment and the amount of

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

  3  there was any fault of the institution for the medical

  4  expenses incurred, the financial resources of the releasee,

  5  the present and potential future financial needs and earning

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

  7  factors. If any inmate placed on conditional release

  8  supervision is also subject to probation or community control

  9  resulting from a probationary or community control split

10  sentence within the overall term of sentences, the Department

11  of Corrections shall supervise such person according to the

12  conditions imposed by the court, and the commission shall

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

14  community control and resentences the offender to a term of

15  incarceration, such revocation also constitutes a sufficient

16  basis for the revocation of the conditional release

17  supervision on any nonprobationary or non-community-control

18  sentence without further hearing by the commission.  If any

19  such supervision on any nonprobationary or

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

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

22  may revoke the resulting deferred conditional release

23  supervision or take other action it considers appropriate.  If

24  the term of conditional release supervision exceeds that of

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

26  the probation or community control, authority for the

27  supervision shall revert to the commission, and the

28  supervision shall be subject to the conditions of the

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

30  community control supervision to be served after release from

31  incarceration, the period of probation or community control

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  1  must be substituted for the conditional release supervision. A

  2  panel of no fewer than two commissioners shall establish the

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

  4  controlled substance violation, the conditions shall include a

  5  requirement that the offender submit to random substance abuse

  6  testing intermittently throughout the term of conditional

  7  release supervision, upon the direction of the correctional

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

  9  shall also determine whether the terms and conditions of such

10  release have been violated and whether such violation warrants

11  revocation of the conditional release.

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

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

14  solicitation, or conspiracy to commit any of the following

15  offenses committed on or after July 1, 1999:

16         1.  Sexual battery;

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

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

19         4.  Kidnapping;

20         5.  Aggravated child abuse;

21         6.  False imprisonment;

22         7.  Sexual performance by a child;

23         8.  Selling or buying of a minor;

24         9.  Stalking or aggravated stalking;

25         10.  Incest;

26         11.  Burglary or armed burglary of an occupied

27  dwelling, building, or conveyance when any person was

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

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

30  was attempted or completed;

31

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  1         13.  Resisting a law enforcement officer with violence

  2  to the officer's person;

  3         14.  Aggravated assault or aggravated battery on a law

  4  enforcement officer;

  5         15.  Felonious threats or extortion;

  6         16.  DUI manslaughter;

  7         17.  Robbery;

  8         18.  Attempted murder of a law enforcement officer

  9  engaged in duty;

10         19.  Arson;

11         20.  Carjacking;

12         21.  Home invasion robbery;

13         22.  Assault or battery upon a district school board

14  employee; or

15         23.  Written threats to kill or do bodily injury

16

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

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

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

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

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

22  tentative release date established by the Department of

23  Corrections, be released under conditional release supervision

24  subject to the terms and conditions determined by the

25  commission as provided in this section.  Such supervision

26  shall be applicable to all sentences within the overall term

27  of sentences if an inmate's overall term of sentences includes

28  one or more sentences that are eligible for conditional

29  release supervision as provided herein.  If any inmate placed

30  on conditional release supervision is also subject to

31  probation or community control resulting from a probationary

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  1  or community control split sentence within the overall term of

  2  sentences, the Department of Corrections shall supervise such

  3  person according to the conditions imposed by the court, and

  4  the commission shall defer to such supervision.  If the court

  5  revokes probation or community control and resentences the

  6  offender to a term of incarceration, such revocation also

  7  constitutes a sufficient basis for the revocation of the

  8  conditional release supervision on any nonprobationary or

  9  non-community-control sentence, without further hearing by the

10  commission.  If any such supervision on any nonprobationary or

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

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

13  may revoke the resulting deferred conditional release

14  supervision or take other action it considers appropriate.  If

15  the term of conditional release supervision exceeds that of

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

17  the probation or community control, authority for the

18  supervision shall revert to the commission, and the

19  supervision shall be subject to the conditions of the

20  commission.

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

22  establish the terms and conditions of any conditional release.

23  If the offense was a controlled substance violation, the

24  conditions shall include a requirement that the offender

25  submit, upon the direction of the correctional probation

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

27  testing intermittently throughout the term of conditional

28  release supervision.  The commission shall also determine

29  whether the terms and conditions of such release have been

30  violated and whether such violation warrants revocation of the

31  conditional release.

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

  2  commission shall determine:

  3         (a)  The amount of reparation or restitution.

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

  5  aggrieved party.

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

  7  concerns about the release of the inmate.

  8         (4)  The commission shall provide to the aggrieved

  9  party information regarding the manner in which notice of any

10  developments concerning the status of the inmate during the

11  term of conditional release may be requested.

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

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

14  representative of the commission shall interview the inmate.

15  The commission representative shall review the inmate's

16  program participation, disciplinary record, psychological and

17  medical records, and any other information pertinent to the

18  impending release.  A commission representative shall conduct

19  a personal interview with the inmate for the purpose of

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

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

22  results of the interview must be forwarded to the commission

23  in writing.

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

25  947.175, the commission shall conduct a review of the inmate's

26  record for the purpose of establishing the terms and

27  conditions of the conditional release.  The commission may

28  impose any special conditions it considers warranted from its

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

30  inmate is eligible for release under this section, the

31  commission shall enter an order establishing the length of

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  1  supervision and the conditions attendant thereto. However, an

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

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

  4  maximum level of supervision provided, with the mandatory

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

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

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

  8  exceed the maximum penalty imposed by the court.

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

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

11  previously convicted of a crime committed on or after October

12  1, 1995, in violation of chapter 794, s. 800.04, s. 827.071,

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

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

15  imposed, the following special conditions imposed by the

16  commission:

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

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

19  employment precludes the above specified time, and such

20  alternative is recommended by the Department of Corrections.

21  If the court determines that imposing a curfew would endanger

22  the victim, the court may consider alternative sanctions.

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

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

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

26  regularly congregate.

27         3.  Active participation in and successful completion

28  of a sex offender treatment program with therapists

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

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

31

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

  2  offender shall participate in other appropriate therapy.

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

  4  directly or indirectly, including through a third person,

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

  6  the sentencing court.

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

  8  prohibition, until successful completion of a sex offender

  9  treatment program, on unsupervised contact with a child under

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

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

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

13  commission.

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

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

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

17  regularly congregate, as prescribed by the commission.

18         7.  Unless otherwise indicated in the treatment plan

19  provided by the sexual offender treatment program, a

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

21  pornographic, or sexually stimulating visual or auditory

22  material, including telephone, electronic media, computer

23  programs, or computer services that are relevant to the

24  offender's deviant behavior pattern.

25         8.  A requirement that the releasee must submit two

26  specimens of blood to the Florida Department of Law

27  Enforcement to be registered with the DNA database.

28         9.  A requirement that the releasee make restitution to

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

30  commission, for all necessary medical and related professional

31

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  1  services relating to physical, psychiatric, and psychological

  2  care.

  3         10.  Submission to a warrantless search by the

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

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

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

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

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

  9  release supervision, in addition to any other provision of

10  this subsection, the commission shall impose the following

11  additional conditions of conditional release supervision:

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

13  minimum of one annual polygraph examination to obtain

14  information necessary for risk management and treatment and to

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

16  examination must be conducted by a polygrapher trained

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

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

19  offender. The results of the polygraph examination shall not

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

21  supervision has occurred.

22         2.  Maintenance of a driving log and a prohibition

23  against driving a motor vehicle alone without the prior

24  approval of the supervising officer.

25         3.  A prohibition against obtaining or using a post

26  office box without the prior approval of the supervising

27  officer.

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

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

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

31  victim's parent or guardian.

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  1         5.  Electronic monitoring when deemed necessary by the

  2  community control or probation officer and his or her

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

  4  the Department of Corrections.

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

  6  population of offenders released from state prison into the

  7  community who meet the conditional release criteria poses the

  8  greatest threat to the public safety of the groups of

  9  offenders under community supervision. Therefore, the

10  Department of Corrections is to provide intensive supervision

11  by experienced correctional probation officers to conditional

12  release offenders. Subject to specific appropriation by the

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

14  conditional release offenders per officer to provide for

15  enhanced public safety and to effectively monitor conditions

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

17  commission.

18         Section 4.  For the purpose of incorporating the

19  amendments made by this act to section 947.1405, Florida

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

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

22  reenacted to read:

23         775.084  Violent career criminals; habitual felony

24  offenders and habitual violent felony offenders; definitions;

25  procedure; enhanced penalties.--

26         (4)

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

28  persons sentenced as habitual felony offenders and persons

29  sentenced as habitual violent felony offenders.

30         Section 5.  For the purpose of incorporating the

31  amendments made by this act to section 947.1405, Florida

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

  2  944.70, Florida Statutes, 1998 Supplement, is reenacted to

  3  read:

  4         944.70  Conditions for release from incarceration.--

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

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

  7  be released from incarceration only:

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

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

10  by accumulated gain-time;

11         3.  As directed by an executive order granting

12  clemency;

13         4.  Upon attaining the provisional release date;

14         5.  Upon placement in a conditional release program

15  pursuant to s. 947.1405; or

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

17  947.146.

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

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

20  only:

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

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

23  by accumulated meritorious or incentive gain-time;

24         3.  As directed by an executive order granting

25  clemency;

26         4.  Upon placement in a conditional release program

27  pursuant to s. 947.1405 or a conditional medical release

28  program pursuant to s. 947.149; or

29         5.  Upon the granting of control release, including

30  emergency control release, pursuant to s. 947.146.

31

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  1         Section 6.  For the purpose of incorporating the

  2  amendments made by this act to section 947.1405, Florida

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

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

  5         947.13  Powers and duties of commission.--

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

  7  the duties of:

  8         (f)  Establishing the terms and conditions of persons

  9  released on conditional release under s. 947.1405, and

10  determining subsequent ineligibility for conditional release

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

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

13         Section 7.  For the purpose of incorporating the

14  amendments made by this act to section 947.1405, Florida

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

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

17         947.141  Violations of conditional release, control

18  release, or conditional medical release.--

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

20  representative of the commission has reasonable grounds to

21  believe that an offender who is on release supervision under

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

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

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

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

26  sexual predator, the warrant must be issued.

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

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

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

30  until the initial appearance of the offender at which a

31  judicial determination of probable cause is made. If the

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  1  magistrate determines that there was no probable cause for the

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

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

  4  determination also constitutes reasonable grounds to believe

  5  that the offender violated the conditions of the release.

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

  7  cause, the detention facility administrator or designee shall

  8  notify the commission and the department of the finding and

  9  transmit to each a facsimile copy of the probable cause

10  affidavit or the sworn offense report upon which the

11  magistrate's probable cause determination is based. The

12  offender must continue to be detained without bond for a

13  period not exceeding 72 hours excluding weekends and holidays

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

15  decision by the commission whether to issue a warrant charging

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

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

18  continue to be held in custody pending a revocation hearing

19  held in accordance with this section.

20         Section 8.  This act shall take effect July 1, 1999.

21

22          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
23                         Senate Bill 1428

24

25  Provides for the addition of a fourth commissioner to the
    Parole Commission.
26

27

28

29

30

31

                                  17