Fla. Admin. Code R. 23-22.008

Current through Reg. 50, No. 090; May 7, 2024

Section 23-22.008 - Control Release Evaluation Procedure

(1) Upon the Commission's receipt of notice from the Department that an inmate eligible for control release has been committed to the Department, the Administrator of Control Release shall schedule an evaluation for the inmate to be conducted by a Commission investigator and forwarded to the Commission's headquarters, unless the inmate is ineligible pursuant to Sections 947.146(3)(a)-(m), F.S., shall be placed in the Maximum Non-Advanceable Category B. Their CRD shall be set at the maximum of the court imposed sentence and not advanceable without the necessity of an evaluation by the Commission but based upon their record of convictions for the herein enumerated offenses. Additionally, the Commission can for a prior conviction for any of the enumerated offenses, place the inmate in the Maximum B category.

(2) Inmates serving a mandatory minimum term of years shall be scheduled for a control release evaluation within 90 days following completion of the mandatory portion of the sentence. If the mandatory term is the same length as the sentence imposed, no evaluation shall be required.

(3) The control release evaluation shall be in two parts. In the first part, the Commission investigator shall determine whether the inmate is statutorily eligible for control release consideration. The second part of the evaluation involves calculation of a recommended CRD for eligible inmates. The Commission investigator shall reduce to writing his recommendation for control release, salient factor score, severity of offense behavior, aggravation, mitigation and the recommended CRD and forward it to the Commission's headquarters.

(a) Salient Factor Scoring - Salient factors shall be calculated on the basis of the inmate's prior criminal record as it existed before conviction on the earliest active commitment. Inmates found to be eligible for inclusion in the Control Release Program will be scored as follows:

1. Number of prior criminal convictions:

Four or more prior convictions = 3 points

Three prior convictions = 2 points

One or two prior convictions = 1 point

No prior convictions = 0 points

a. Count all prior convictions obtained in the same criminal episode as one prior conviction.

b. Count all prior juvenile sanctions which would have been criminal if committed by an adult. Do not count "status offenses," for example runaway, truancy, habitual disobedience, as prior criminal record. This does not, preclude a Commission investigator or the Commission from considering such behavior as a negative indicant of control release prognosis.

c. Do not count vagrancy, loitering, disorderly conduct, public drunkenness, violations of local ordinances which would not constitute violations of State Law and noncriminal traffic infractions as prior criminal record. This does not, however, preclude a Commission investigator or the Commission from considering such behavior as a negative indicant of control release prognosis. Count convictions for prowling, trespassing, criminal contempt of court, failure to appear and serious vehicular convictions which shall include, but not be limited to, driving while intoxicated or hit and run.

d. Count all prior military criminal convictions which would have been subject to civilian criminal law. Do not count military convictions for strictly military type offenses. However, this does not preclude considering serious misconduct as a negative indicant of control release prognosis.

e. Count all pleas of guilt, pleas of nolo contendere or convictions which result from criminal offenses committed while on bail or probation for the present offense of conviction. Do not count conduct resulting in diversion from the judicial process without a plea of guilt or a plea of nolo contendere or a specific finding of guilt. Also, do not count deferred prosecution, pretrial intervention and probation without a plea.

f. Do not count the present state conviction(s) resulting from the present offense behavior as a prior criminal record.

g. Do not count convictions which were set aside or pardoned on grounds of innocence, reversed on appeal, unless a retrial resulted in conviction(s).

h. If an inmate has maintained a conviction-free record in the community for a period of ten consecutive years and has not been in confinement or under probation, parole, conditional or control release supervision, the prior criminal record to such ten year period should be considered ancient prior record and should not be counted for any salient factor. This shall not prevent consideration of such behavior as a negative indicant of control release prognosis. A substantial conviction-free period in the community not amounting to ten years may be considered as a positive indicant of control release prognosis.

2. Number of prior violent convictions:

Four or more prior violent convictions = 4 points

Three prior violent convictions = 3 points

Two prior violent convictions = 2 points

One prior violent conviction = 1 point

No prior violent convictions = 0 points

a. Count all prior violent convictions obtained in the same criminal episode as one prior violent conviction.

b. For the purpose of this salient factor, count any prior convictions that involved the use of force or the threat of force against a person. These offenses shall include, but not be limited to the following:

Assault

Battery

Aggravated Assault

Aggravated Battery

Robbery

Manslaughter

Vehicular Homicide

DUI Resulting in Death

Extortion

Resisting arrest with violence

3. Number of prior incarcerations:

Three or more prior incarcerations = 2 points

One or Two prior incarcerations = 1 point

No prior incarcerations = 0 points

a. For purposes of this salient factor, count only imposed sentences of sixty days or more.

b. Count all prior incarcerations, including commitments and placements in residential juvenile facilities, resulting from a sentence imposed for a conviction or delinquency adjudication.

c. Count only incarcerations that were actually imposed; do not count confinement pending trial or adjudication as an incarceration unless the sentence was specifically to "time served." Concurrent or consecutive sentences for offenses in the same criminal episode are to be counted as a single incarceration.

d. Count only incarcerations which were imposed and served prior to the receipt by commitment for the present offense of conviction. Do not count incarcerations which were imposed following the commission of the present offense of conviction; however, count any incarcerations which resulted from a criminal offense committed while on bail or probation for the present offense of conviction. This does not preclude considering the commission of additional offenses as a negative indicant of control release prognosis.

e. Do not count incarcerations resulting from convictions which were set aside or pardoned on grounds of innocence or imposed as a condition of probation.

4. Total prior sentences in years:

Two or more years = 2 points

Less than two years but more than 59 days = 1 point

All prior sentences of 59 days or less = 0 points

a. Count all time imposed for all prior sentences for 60 days or more.

b. Score 2 if the total time sentenced is two years or longer.

c. Score 1 if the total time sentenced for all prior incarcerations is less than two years but more than 59 days.

d. Score 0 if all prior sentences are 59 days or less.

e. Do not count sentences imposed for a conviction which was later set aside or pardoned on grounds of innocence or was an incarceration imposed as a condition of probation.

5. Age at time of offense which led to the first incarceration:

17 years or younger = 2 points

18 - 25 years = 1 point

26 years or older = 0 points

a. Score 2 points if the inmate was less than 18 years of age at the time of the offense which led to the inmate's first incarceration.

b. Score 1 point if the inmate was 18 through 25 years old at the time of the offense which led to the inmate's first incarceration.

c. Score 0 points if the inmate was 26 years old or older at the time of the offense which led to the inmate's first incarceration.

d. For purposes of this item, count only commitments in which the sentence imposed was for 60 days or more.

e. If the inmate was placed on probation and it later was revoked, the age at offense which led to the first incarceration shall be the inmate's age on the date of the behavior leading to the probation revocation. Do not use the age at the offense which led to the probation.

f. Do not consider age at time of commission of any offense for which conviction was later set aside or pardoned on grounds of innocence.

6. Number of Revocations:

Three or more revocations = 2 points

One or Two revocations = 1 point

No revocation = 0 points

a. For purposes of this salient factor, a revocation includes probation, parole, mandatory conditional release (MCR), compulsory conditional release (CCR), conditional release and control release.

b. Score 2 if the inmate has three or more revocations. Do not count probation revocations which do not result in a commitment for the offense for which probation was imposed.

c. Score 1 if the inmate has one or two revocations.

d. Score 0 if the inmate has never had a revocation. Do not point for juvenile revocations or adult revocations which did not result in a commitment or sentence to incarceration.

e. Do not consider any revocation on a conviction subsequently set aside or pardoned on grounds of innocence.

7. Number of Prior Escape Convictions:

One or more prior escape convictions = 1 point

No prior escape convictions = 0 points

a. Score 1 if the inmate has ever been convicted of escape prior to the present offense of conviction.

b. Score 0 if the inmate has no prior escape convictions.

8. Burglary or Breaking and Entering as the Present Offense of Conviction:

Present offenses of conviction include a conviction for Burglary or Breaking and Entering = 1 point

a. Score 1 if the present offenses of conviction include a conviction for burglary or breaking and entering.

b. Score 0 if the present offenses of conviction do not include a conviction for burglary or breaking and entering. Do not point convictions for entering without breaking, attempted burglary, attempted breaking and entering or possession of burglary tools.

c. More than one conviction for burglary or breaking and entering may be considered as a negative indicant of control release prognosis and used as an aggravating factor.

(b) Severity of Offense Behavior - The severity of offense behavior shall reflect the primary offense of conviction's degree of felony. If the present offenses of conviction involved multiple separate offenses, the severity of offense behavior shall be established for the most serious of the separate offenses (primary offense) which resulted in a sentence to incarceration. If the actual offense behavior was more or less severe than the primary offense of conviction reflects, a decision outside the matrix grid may be considered. Convictions that do not qualify as prior record or active commitments may be used for the purpose of aggravations.

(c) Control Release Matrix Grid -

1. Calculate and total the salient factor score.

2. Determine the degree of felony of the primary offense of conviction.

3. Determine if the case should be scored on the violent, property or drug offense matrix grid.

4. Locate the matrix grid cell where the salient factor score total intersects with the severity of offense behavior on the appropriate grid.

5. If the totality of the circumstances of the primary offense of conviction warrants a decision outside the matrix grid or if there are other indicants which warrant a decision outside the matrix grid, the appropriate code for Aggravation or Mitigation factors shall be included on a control release evaluation form.

6. CONTROL RELEASE SALIENT FACTOR SCORING SYSTEM

I. VIOLENT OFFENSE* C.R. SALIENT FACTOR SCORE MATRIX GRID

OFFENSE SEVERITY

10+

3rd Degree Felony

2nd Degree Felony

1st Degree Felony

Life Felony

A12

Capital Felony

II. PROPERTY OFFENSE* C.R. SALIENT FACTOR SCORE

OFFENSE SEVERITY

10+

3rd Degree Felony

A12

2nd Degree Felony

A12

1st Degree Felony

A12

Life Felony

A12

Capital Felony

III. DRUG OFFENSE* C.R. SALIENT FACTOR SCORE

OFFENSE SEVERITY

10+

3rd Degree Felony

2nd Degree Felony

A12

1st Degree Felony

A12

Life Felony

A12

Capital Felony

M = Eligible for Immediate Release

A = Eligible for Early Release (before maximum release date) and/or Advanceable C.R. Date

NA = Maximum non-advanceable Category A. May be transferred to advanceable category in the event of critical depletion of advanceable category (less than 4,000)

NB = Not Eligible for Early Release or Advanceable C.R. Date (Maximum non-advanceable Category B)

A6 = Post Release Supervision of 6 Months

A12 = Post Release Supervision of 12 Months

*Primary Offense of Conviction

I Violent - Guidelines categories 1-4 (9-Kidnapping, Child Abuse)

II Property - Guidelines categories 5, 6, 8 (9-Other than Kidnapping and Child Abuse)

III Drugs - Guidelines category 7

(d) Control Release Criteria (aggravation) - Reasons for establishing a control release date exceeding the criteria or finding ineligible for future advances shall include:

1. The inmate has multiple separate offenses.

2. Extent of psychological or physical trauma to the victim(s) due to the criminal offense.

3. The inmate used force in excess of that required to accomplish his criminal intent.

4. Any release may cause unreasonable risk to others.

5. The inmate violated probation almost immediately following disposition.

6. Inmate committed offense(s) while awaiting sentence on earlier offense.

7. Similar crime committed shortly after being placed on probation.

8. Offense occurred shortly after release from prison.

9. Inmate committed and was convicted of crimes which occurred while he was released on recognizance.

10. Escalating or continuing a persistent pattern of criminal conduct.

11. Extreme cruelty toward victims.

12. Potential risk to or vulnerability of victims.

13. Inmate's status as a drug dealer.

14. Inmate was AWOL or dishonorably discharged from the military service.

15. Inmate's previous driving infractions show a danger to others and his present commitment involves vehicular homicide.

16. Offense committed to thwart police investigation.

17. Commission of attempted murder was for the sole purpose of eliminating an eye witness.

18. Professional manner in which crime was committed.

19. The inmate utilized inside information to commit offense at the most opportune time.

20. Inmate disregarded property right and welfare and safety of others.

21. Inmate evaluated to be in need of mental health treatment or treatment as a sex offender.

22. Willful and obstinate refusal to work while on probation, parole, community control, conditional release or control release, or while at a restitution center.

23. Inmate threatened victim(s) or witness(es).

24. The facts of the offense show egregious circumstances which are not elements of the crimes charged.

25. Inmate has expressed contempt for the judicial or correctional system.

26. Inmate was a public official who accepted bribe to influence an official decision.

27. Inmate's status as ringleader of a drug operation.

28. Inmate's attack on victim(s) was in the presence of children.

29. Inmate induced others to participate in the commission of the crime.

30. Inmate is an illegal alien who committed the offense after previously being deported for a criminal offense.

31. The offense involved the use of a firearm or dangerous weapon.

32. The offense resulted in great bodily injury or pecuniary loss.

33. The offense was part of a large scale organized scheme of criminal conspiracy.

34. The inmate committed an offense for the purpose of avoiding or preventing a lawful arrest or effecting an escape.

35. The inmate has a history of alcohol or narcotic abuse.

36. The inmate has a history of assaultive or violent behavior.

37. The inmate has failed or refused to make restitution although able to do so.

38. Based on an inmates sentence under Section 893.13(1)(e)1., or (1)(i)1. or 775.084(1)(a), F.S., it is statutorily required that the inmate be placed into an advanceable category only as the result of a critical depletion transfer. (All inmates aggravated under this factor have scored as eligible for early release and/or advanceable on the matrix grid, but are aggravated to the max A non-advanceable category).

(e) Control Release Criteria (mitigation) - Reasons for mitigating a control release date to an earlier date than determined by objective criteria or determining eligible for future advances of control release date shall include:

1. Period of control release supervision necessary to assure inmate makes restitution.

2. Inmate suffering mental impairment which diminishes understanding and judgment, but is capable of responding to supervision.

3. Cooperation with law enforcement or other material assistance to state or federal authorities.

4. Inmate's criminal behavior appears influenced by intoxication or substance abuse, and inmate appears amenable to treatment and supervision.

5. Inmate's participation in drug treatment program.

6. Age of inmate shows some reasonable chance for rehabilitation.

7. Inmate acted under duress from co-defendant.

8. Inmate out of custody for extended period and led a law abiding life.

9. Inmate's offense was isolated incident and inmate appears to pose no future threat to society.

10. Inmate has consistently evidenced remorse since the offense.

11. Unsophisticated manner in which crime was committed.

12. The crime neither caused nor threatened serious harm to persons or property, nor did the inmate contemplate it would do so.

13. The victim of the crime induced or facilitated the offense.

14. There is substantial evidence tending to excuse or justify the crime, though failing to establish a defense.

15. The inmate acted under strong provocation or duress.

16. The inmate had only a peripheral role in the crime.

17. There is confirmed evidence that the inmate attempted to withdraw prior to completion of the offense or attempted to make restitution prior to the discovery of the offense.

18. The inmate genuinely believed he had a claim of right (property offenses only).

19. The inmate's past offenses were of a trivial nature.

20. The inmate has the availability of extremely strong community resources.

21. The inmate has a poor medical prognosis as indicated by a licensed medical practitioner.

22. The inmate has served, or faces a substantial period of incarceration for other offenses.

23. The inmate is an alien and faces deportation under a deportation order or detainer which has been formally entered by the United States Immigration and Naturalization Service.

24. The inmate has spent a long period of incarceration in another jurisdiction.

25. The inmate has court ordered supervision to follow release.

26. To maintain lawful prison capacity.

(f) Reasons for requiring or extending supervision shall include:

1. Inmate has need for an extended rehabilitation treatment program and the control release is predicated upon successful completion of that program.

2. Inmate has previously failed to successfully complete a period of supervision.

3. Inmate is required to make restitution and the extended period will allow him to complete payment while supporting himself and his dependents.

4. The circumstances of the inmate's offense(s) of conviction were so serious that it is in the best interest of society that he remain under supervision.

5. Inmate's release from supervision at an earlier date would depreciate the seriousness of his offense(s) or promote disrespect for the law.

6. Inmate's criminal record is so extensive that a lesser period of supervision would promote general disrespect for the law.

7. Inmate's criminal behavior appears influenced by intoxication or substance abuse and inmate appears amenable to treatment and supervision.

8. Period of supervision required to assure inmate does not make contact with victim(s) or witness(es).

9. The inmate has a consecutive sentence(s).

10. The inmate has conditional release eligible commitments contained in sentence structure.

Fla. Admin. Code Ann. R. 23-22.008

Rulemaking Authority 947.146(6)(i), 947.07, 947.20 FS. Law Implemented 947.146 FS.

New 9-1-90, Amended 8-24-92, 1-5-94, 8-16-94, 4-16-96, 2-12-13.