947.1405 Conditional release program.

FLORIDA STATUTES AND CODES

947.1405 Conditional release program.

(1) This section and s. 947.141 may be cited as the “Conditional Release Program Act.”

(2) Any inmate who:

(a) Is convicted of a crime committed on or after October 1, 1988, and before January 1, 1994, and any inmate who is convicted of a crime committed on or after January 1, 1994, which crime is or was contained in category 1, category 2, category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida Rules of Criminal Procedure (1993), and who has served at least one prior felony commitment at a state or federal correctional institution;

(b) Is sentenced as a habitual or violent habitual offender or a violent career criminal pursuant to s. 775.084; or

shall, upon reaching the tentative release date or provisional release date, whichever is earlier, as established by the Department of Corrections, be released under supervision subject to specified terms and conditions, including payment of the cost of supervision pursuant to s. 948.09. Such supervision shall be applicable to all sentences within the overall term of sentences if an inmate’s overall term of sentences includes one or more sentences that are eligible for conditional release supervision as provided herein. Effective July 1, 1994, and applicable for offenses committed on or after that date, the commission may require, as a condition of conditional release, that the releasee make payment of the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care, treatment, hospitalization, or transportation received by the releasee while in that detention facility. The commission, in determining whether to order such repayment and the amount of such repayment, shall consider the amount of the debt, whether there was any fault of the institution for the medical expenses incurred, the financial resources of the releasee, the present and potential future financial needs and earning ability of the releasee, and dependents, and other appropriate factors. If any inmate placed on conditional release supervision is also subject to probation or community control, resulting from a probationary or community control split sentence within the overall term of sentences, the Department of Corrections shall supervise such person according to the conditions imposed by the court and the commission shall defer to such supervision. If the court revokes probation or community control and resentences the offender to a term of incarceration, such revocation also constitutes a sufficient basis for the revocation of the conditional release supervision on any nonprobationary or noncommunity control sentence without further hearing by the commission. If any such supervision on any nonprobationary or noncommunity control sentence is revoked, such revocation may result in a forfeiture of all gain-time, and the commission may revoke the resulting deferred conditional release supervision or take other action it considers appropriate. If the term of conditional release supervision exceeds that of the probation or community control, then, upon expiration of the probation or community control, authority for the supervision shall revert to the commission and the supervision shall be subject to the conditions imposed by the commission. A panel of no fewer than two commissioners shall establish the terms and conditions of any such release. If the offense was a controlled substance violation, the conditions shall include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of conditional release supervision, upon the direction of the correctional probation officer as defined in s. 943.10(3). The commission shall also determine whether the terms and conditions of such release have been violated and whether such violation warrants revocation of the conditional release.

(3) As part of the conditional release process, the commission, through review and consideration of information provided by the department, shall determine:

(a) The amount of reparation or restitution.

(b) The consequences of the offense as reported by the aggrieved party.

(4) The commission shall provide to the aggrieved party information regarding the manner in which notice of any developments concerning the status of the inmate during the term of conditional release may be requested.

(5) Within 180 days prior to the tentative release date or provisional release date, whichever is earlier, a representative of the department shall review the inmate’s program participation, disciplinary record, psychological and medical records, criminal records, and any other information pertinent to the impending release. The department shall gather and compile information necessary for the commission to make the determinations set forth in subsection (3). A department representative shall conduct a personal interview with the inmate for the purpose of determining the details of the inmate’s release plan, including the inmate’s planned residence and employment. The department representative shall forward the inmate’s release plan to the commission and recommend to the commission the terms and conditions of the conditional release.

(6) The commission shall review the recommendations of the department, and such other information as it deems relevant, and may conduct a review of the inmate’s record for the purpose of establishing the terms and conditions of the conditional release. The commission may impose any special conditions it considers warranted from its review of the release plan and recommendation. If the commission determines that the inmate is eligible for release under this section, the commission shall enter an order establishing the length of supervision and the conditions attendant thereto. However, an inmate who has been convicted of a violation of chapter 794 or found by the court to be a sexual predator is subject to the maximum level of supervision provided, with the mandatory conditions as required in subsection (7), and that supervision shall continue through the end of the releasee’s original court-imposed sentence. The length of supervision must not exceed the maximum penalty imposed by the court.

(7)(a) Any inmate who is convicted of a crime committed on or after October 1, 1995, or who has been previously convicted of a crime committed on or after October 1, 1995, in violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, and is subject to conditional release supervision, shall have, in addition to any other conditions imposed, the following special conditions imposed by the commission:

1. A mandatory curfew from 10 p.m. to 6 a.m. The commission may designate another 8-hour period if the offender’s employment precludes the above specified time, and such alternative is recommended by the Department of Corrections. If the commission determines that imposing a curfew would endanger the victim, the commission may consider alternative sanctions.

2. If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, child care facility, park, playground, designated public school bus stop, or other place where children regularly congregate. A releasee who is subject to this subparagraph may not relocate to a residence that is within 1,000 feet of a public school bus stop. Beginning October 1, 2004, the commission or the department may not approve a residence that is located within 1,000 feet of a school, child care facility, park, playground, designated school bus stop, or other place where children regularly congregate for any releasee who is subject to this subparagraph. On October 1, 2004, the department shall notify each affected school district of the location of the residence of a releasee 30 days prior to release and thereafter, if the releasee relocates to a new residence, shall notify any affected school district of the residence of the releasee within 30 days after relocation. If, on October 1, 2004, any public school bus stop is located within 1,000 feet of the existing residence of such releasee, the district school board shall relocate that school bus stop. Beginning October 1, 2004, a district school board may not establish or relocate a public school bus stop within 1,000 feet of the residence of a releasee who is subject to this subparagraph. The failure of the district school board to comply with this subparagraph shall not result in a violation of conditional release supervision. A releasee who is subject to this subparagraph may not be forced to relocate and does not violate his or her conditional release supervision if he or she is living in a residence that meets the requirements of this subparagraph and a school, child care facility, park, playground, designated public school bus stop, or other place where children regularly congregate is subsequently established within 1,000 feet of his or her residence.

3. Active participation in and successful completion of a sex offender treatment program with qualified practitioners specifically trained to treat sex offenders, at the releasee’s own expense. If a qualified practitioner is not available within a 50-mile radius of the releasee’s residence, the offender shall participate in other appropriate therapy.

4. A prohibition on any contact with the victim, directly or indirectly, including through a third person, unless approved by the victim, a qualified practitioner in the sexual offender treatment program, and the sentencing court.

5. If the victim was under the age of 18, a prohibition against contact with children under the age of 18 without review and approval by the commission. The commission may approve supervised contact with a child under the age of 18 if the approval is based upon a recommendation for contact issued by a qualified practitioner who is basing the recommendation on a risk assessment. Further, the sex offender must be currently enrolled in or have successfully completed a sex offender therapy program. The commission may not grant supervised contact with a child if the contact is not recommended by a qualified practitioner and may deny supervised contact with a child at any time. When considering whether to approve supervised contact with a child, the commission must review and consider the following:

a. A risk assessment completed by a qualified practitioner. The qualified practitioner must prepare a written report that must include the findings of the assessment and address each of the following components:

(I) The sex offender’s current legal status;

(II) The sex offender’s history of adult charges with apparent sexual motivation;

(III) The sex offender’s history of adult charges without apparent sexual motivation;

(IV) The sex offender’s history of juvenile charges, whenever available;

(V) The sex offender’s offender treatment history, including a consultation from the sex offender’s treating, or most recent treating, therapist;

(VI) The sex offender’s current mental status;

(VII) The sex offender’s mental health and substance abuse history as provided by the Department of Corrections;

(VIII) The sex offender’s personal, social, educational, and work history;

(IX) The results of current psychological testing of the sex offender if determined necessary by the qualified practitioner;

(X) A description of the proposed contact, including the location, frequency, duration, and supervisory arrangement;

(XI) The child’s preference and relative comfort level with the proposed contact, when age-appropriate;

(XII) The parent’s or legal guardian’s preference regarding the proposed contact; and

(XIII) The qualified practitioner’s opinion, along with the basis for that opinion, as to whether the proposed contact would likely pose significant risk of emotional or physical harm to the child.

The written report of the assessment must be given to the commission.

b. A recommendation made as a part of the risk-assessment report as to whether supervised contact with the child should be approved;

c. A written consent signed by the child’s parent or legal guardian, if the parent or legal guardian is not the sex offender, agreeing to the sex offender having supervised contact with the child after receiving full disclosure of the sex offender’s present legal status, past criminal history, and the results of the risk assessment. The commission may not approve contact with the child if the parent or legal guardian refuses to give written consent for supervised contact;

d. A safety plan prepared by the qualified practitioner, who provides treatment to the offender, in collaboration with the sex offender, the child’s parent or legal guardian, and the child, when age appropriate, which details the acceptable conditions of contact between the sex offender and the child. The safety plan must be reviewed and approved by the Department of Corrections before being submitted to the commission; and

e. Evidence that the child’s parent or legal guardian, if the parent or legal guardian is not the sex offender, understands the need for and agrees to the safety plan and has agreed to provide, or to designate another adult to provide, constant supervision any time the child is in contact with the offender.

The commission may not appoint a person to conduct a risk assessment and may not accept a risk assessment from a person who has not demonstrated to the commission that he or she has met the requirements of a qualified practitioner as defined in this section.

6. If the victim was under age 18, a prohibition on working for pay or as a volunteer at any school, child care facility, park, playground, or other place where children regularly congregate, as prescribed by the commission.

7. Unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

8. Effective for a releasee whose crime is committed on or after July 1, 2005, a prohibition on accessing the Internet or other computer services until a qualified practitioner in the offender’s sex offender treatment program, after a risk assessment is completed, approves and implements a safety plan for the offender’s accessing or using the Internet or other computer services.

9. A requirement that the releasee must submit two specimens of blood to the Department of Law Enforcement to be registered with the DNA database.

10. A requirement that the releasee make restitution to the victim, as determined by the sentencing court or the commission, for all necessary medical and related professional services relating to physical, psychiatric, and psychological care.

11. Submission to a warrantless search by the community control or probation officer of the probationer’s or community controllee’s person, residence, or vehicle.

(b) For a releasee whose crime was committed on or after October 1, 1997, in violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, and who is subject to conditional release supervision, in addition to any other provision of this subsection, the commission shall impose the following additional conditions of conditional release supervision:

1. As part of a treatment program, participation in a minimum of one annual polygraph examination to obtain information necessary for risk management and treatment and to reduce the sex offender’s denial mechanisms. The polygraph examination must be conducted by a polygrapher who is a member of a national or state polygraph association and who is certified as a postconviction sex offender polygrapher, where available, and at the expense of the releasee. The results of the examination shall be provided to the releasee’s probation officer and qualified practitioner and may not be used as evidence in a hearing to prove that a violation of supervision has occurred.

2. Maintenance of a driving log and a prohibition against driving a motor vehicle alone without the prior approval of the supervising officer.

3. A prohibition against obtaining or using a post office box without the prior approval of the supervising officer.

4. If there was sexual contact, a submission to, at the releasee’s expense, an HIV test with the results to be released to the victim or the victim’s parent or guardian.

5. Electronic monitoring of any form when ordered by the commission. Any person who has been placed under supervision and is electronically monitored by the department must pay the department for the cost of the electronic monitoring service at a rate that may not exceed the full cost of the monitoring service. Funds collected under this subparagraph shall be deposited into the General Revenue Fund. The department may exempt a person from the payment of all or any part of the electronic monitoring service cost if the department finds that any of the factors listed in s. 948.09(3) exist.

(8) It is the finding of the Legislature that the population of offenders released from state prison into the community who meet the conditional release criteria poses the greatest threat to the public safety of the groups of offenders under community supervision. Therefore, the Department of Corrections is to provide intensive supervision by experienced correctional probation officers to conditional release offenders. Subject to specific appropriation by the Legislature, caseloads may be restricted to a maximum of 40 conditional release offenders per officer to provide for enhanced public safety and to effectively monitor conditions of electronic monitoring or curfews, if so ordered by the commission.

(9) The commission shall adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to implement the provisions of the Conditional Release Program Act.

(10) Effective for a releasee whose crime was committed on or after September 1, 2005, in violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145, and the unlawful activity involved a victim who was 15 years of age or younger and the offender is 18 years of age or older or for a releasee who is designated as a sexual predator pursuant to s. 775.21, in addition to any other provision of this section, the commission must order electronic monitoring for the duration of the releasee’s supervision.

(11) Effective for a releasee whose crime was committed on or after October 1, 2008, and who has been found to have committed the crime for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, the commission shall, in addition to any other conditions imposed, impose a condition prohibiting the releasee from knowingly associating with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

(12) In addition to all other conditions imposed, for a releasee who is subject to conditional release for a crime that was committed on or after May 26, 2010, and who has been convicted at any time of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses listed in s. 943.0435(1)(a)1.a.(I), or a similar offense in another jurisdiction against a victim who was under 18 years of age at the time of the offense, if the releasee has not received a pardon for any felony or similar law of another jurisdiction necessary for the operation of this subsection, if a conviction of a felony or similar law of another jurisdiction necessary for the operation of this subsection has not been set aside in any postconviction proceeding, or if the releasee has not been removed from the requirement to register as a sexual offender or sexual predator pursuant to s. 943.04354, the commission must impose the following conditions:

(a) A prohibition on visiting schools, child care facilities, parks, and playgrounds without prior approval from the releasee’s supervising officer. The commission may also designate additional prohibited locations to protect a victim. The prohibition ordered under this paragraph does not prohibit the releasee from visiting a school, child care facility, park, or playground for the sole purpose of attending a religious service as defined in s. 775.0861 or picking up or dropping off the releasee’s child or grandchild at a child care facility or school.

(b) A prohibition on distributing candy or other items to children on Halloween; wearing a Santa Claus costume, or other costume to appeal to children, on or preceding Christmas; wearing an Easter Bunny costume, or other costume to appeal to children, on or preceding Easter; entertaining at children’s parties; or wearing a clown costume without prior approval from the commission.

History. s. 19, ch. 88-122; ss. 12, 17, ch. 89-531; ss. 11, 20, ch. 90-337; s. 2, ch. 91-225; s. 8, ch. 91-280; s. 14, ch. 92-310; s. 1, ch. 93-2; s. 4, ch. 93-277; s. 4, ch. 93-417; s. 2, ch. 94-121; s. 3, ch. 94-294; s. 5, ch. 95-264; s. 57, ch. 95-283; s. 64, ch. 96-388; s. 10, ch. 97-78; s. 1872, ch. 97-102; s. 1, ch. 97-308; s. 3, ch. 2000-246; s. 5, ch. 2001-124; s. 1, ch. 2004-55; s. 16, ch. 2004-371; s. 12, ch. 2005-28; s. 2, ch. 2005-67; s. 27, ch. 2008-172; s. 23, ch. 2008-238; s. 9, ch. 2009-63; ss. 10, 18, ch. 2010-92.