947.23
Action of commission upon arrest of parolee.
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947.23 Action of commission upon arrest of parolee.—
(1) Within 30 days after the arrest of a person charged with violation of the terms and conditions of her or his parole, the parolee shall be afforded a prompt preliminary hearing, conducted by a member of the commission or its duly authorized representative, at or near the place of violation or arrest to determine if there is probable cause or reasonable grounds to believe that the parolee has committed a violation of the terms or conditions of her or his parole. The parolee may knowingly execute a waiver of this hearing, up until the time of such hearing, provided the consequences of such action have been fully explained. If the parolee elects to proceed with the preliminary hearing:
(a) The parolee shall be afforded a timely notice of the preliminary hearing, which notice shall state the purpose of the hearing and state the alleged violation.
(b) The parolee shall be permitted to cross-examine adverse witnesses, unless it is determined that good cause exists not to allow such examination.
(c) The parolee shall be allowed to call witnesses as provided in subsection (3), and present evidence in her or his own behalf.
(d) The parolee may be represented by counsel.
The findings based on the evidence presented at the preliminary hearing shall be made available to the parolee either immediately following the preliminary hearing or within a reasonable time thereafter.
(2) If the preliminary hearing results in a finding of probable cause or reasonable grounds to believe that a violation of the terms or conditions of parole has occurred, any one or more commissioners or a duly authorized representative of the commission shall convene a final revocation hearing on the alleged violation. The parolee shall appear at the final hearing in person, and, if the parolee desires, she or he may be represented by counsel. At the final hearing, the state and the parolee may introduce such evidence as is necessary and pertinent to the charge of parole violation.
(3) Any one or more commissioners or a duly authorized representative of the commission may administer oaths and compel the attendance of witnesses at such hearing by the issuance of summons, subpoenas, and subpoenas duces tecum. Subpoenas and subpoenas duces tecum shall be enforceable by appropriate proceedings in circuit court, and the failure to comply with a court order enforcing a subpoena or subpoena duces tecum shall constitute contempt of court. Any one or more commissioners or a duly authorized representative of the commission may issue subpoenas on behalf of the state or the parolee. The commission may decline a request to subpoena a witness whose testimony it finds would be cumulative, irrelevant, or nonprobative. The party requesting the subpoenas shall furnish to the commissioner, commissioners, or duly authorized representative of the commission the names and addresses of her or his proposed witnesses at least 10 days prior to the hearing date.
(4) At the hearing, the parolee shall be informed orally and in writing of:
(a) The violation of the terms and conditions of parole with which the parolee has been charged.
(b) The right to be represented by counsel.
(c) The right to be heard in person.
(d) The right to secure, present, and compel the attendance of witnesses as provided in subsection (3) and the production of documents on her or his behalf.
(e) The right of access to all evidence used against her or him.
(f) The right to confront and cross-examine adverse witnesses, unless the commissioner, commissioners, or duly authorized representative of the commission conducting the hearing finds specifically, and states in writing, good cause not to allow the confrontation.
(5)(a) At any such hearing convened by one or more commissioners or a duly authorized representative of the commission, the accused may waive her or his right to proceed further if, after being informed of her or his rights and after being advised of the consequences of a waiver in regard to the nature of the order which may be entered as a result of such waiver, the accused affirms, in writing, knowledge and understanding of such rights and consequences and elects, in writing, to execute the waiver.
(b) The accused violator may execute a waiver, in writing, of a final revocation hearing prior to the commencement of such hearing. Such waiver may be executed before a member of the commission or a duly authorized representative of the commission after the accused violator has been informed of her or his rights and after she or he has been advised of the consequences of a waiver. Within 14 days after the execution of a waiver, the accused may withdraw the waiver by executing a withdrawal of waiver before a notary public and forwarding the original of that withdrawal to the commission.
(6) Within a reasonable time after the hearing, the commissioner, commissioners, or duly authorized representative of the commission who conducted the hearing shall make findings of fact in regard to the alleged parole violation.
(a) If the hearing was conducted by three or more commissioners, a majority of them shall enter an order determining whether the charges of parole violation have been sustained, based on the findings of fact made by them. By such order they shall revoke the parole and return the parolee to prison to serve the sentence theretofore imposed upon her or him, reinstate the original order of parole, order the placement of the parolee into a community control program as set forth in s. 948.101, or enter such other order as is proper.
(b) If the hearing was conducted by one or two commissioners or a duly authorized representative of the commission, at least two commissioners shall enter an order determining whether or not the charges of parole violation have been sustained, based on the findings of fact made by the commissioner, commissioners, or duly authorized representative of the commission. The commissioners, by such order, shall revoke the parole and return the parolee to prison to serve the sentence theretofore imposed upon her or him, reinstate the original order of parole, order the placement of the parolee into a community control program as set forth in s. 948.101, or enter such other order as is proper.
(c) If the disposition after the revocation hearing is to place the parolee into a community control program, the commission shall be guided by the procedures and requirements provided in chapter 948 which apply to the courts regarding the development and implementation of community control.
However, any decision to revoke parole shall be based on a violation of a term or condition specifically enumerated in the parole release order. In a case in which parole is revoked, the majority of the commission or the two commissioners shall make a written statement of the evidence relied on and the reasons for revoking parole.
(7) Whenever a parole is revoked by the commission and the parolee is ordered by the commission to be returned to prison, the parolee, by reason of her or his misconduct, shall be deemed to forfeit all gain-time or commutation of time for good conduct, as provided for by law, earned up to the date of her or his release on parole. Nothing herein shall deprive the prisoner of her or his right to gain-time or commutation of time for good conduct, as provided by law, from the date the prisoner is returned to prison.
History.—s. 17, ch. 20519, 1941; s. 4, ch. 21775, 1943; s. 1, ch. 74-241; s. 1, ch. 77-174; s. 19, ch. 78-417; s. 11, ch. 79-42; s. 17, ch. 82-171; s. 2, ch. 82-193; ss. 15, 34, ch. 83-131; s. 6, ch. 85-295; s. 37, ch. 86-183; s. 67, ch. 88-122; ss. 45, 47, ch. 89-526; s. 17, ch. 89-531; s. 20, ch. 90-337; s. 1, ch. 93-2; s. 1682, ch. 97-102; s. 37, ch. 2004-373.
Notes of Decisions
Cited in 33
cases, 1954–2008 · leading case: Peters v. State
Peters v. State (2008)
“Compare § 947.23, Fla. Stat. (2003) (outlining parole revocation procedures), with Morrissey, 408 U.”
Morrissey v. Brewer (1972)
“1970); Fla. Stat. Ann. § 947.23 (1) (Supp. 1972); Ga.”
Dees v. State (1974)
“We have for consideration a question from the Seventh Judicial Circuit in and for Volusia County relating to constitutionality of Section 947.23, Florida Statutes, as it is incorporated in Sections 949.”
Hansen v. Wainwright (1986)
“Revocations of parole for technical violations, unlike revocations based upon subsequent felony arrests, are governed by Section 947.23, Florida Statutes (1979), which formerly had required a preliminary hearing "as soon as practicable after the arrest of the person charged with…”
Bernhardt v. State (1974)
“10 shall be given a hearing pursuant to § 947.23 or § 948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of § 947.”
Robert W. Fowler v. Armond Cross, Commissioner of Florida Parole Board (1981)
“We note also that the Florida legislature amended Fla. Stat.Ann. § 947.23 in 1979 to conform the statute itself to the decisions of the Florida Supreme Court and the Morrissey standards.”
Taylor v. Dugger (1990)
“Appellant, James Taylor, appeals the summary denial of his petition for writ of habeas corpus on the ground that the Florida Parole Commission did not comply with Section 947.23, Florida Statutes (1987), which deals with parole revocation proceedings.”
Ernest Jackson Cottle v. Louie L. Wainwright, Director, Division of Corrections (1973)
“The majority concludes (1) that Florida denied Cottle his Fourteenth Amendment right to equal protection of the law because Fla. Stat. 947.23, F.S.A., permits a parolee with means to be represented by counsel at a parole revocation hearing but does not provide counsel for…”
Smith v. Moore (2001)
“The Fifth District Court determined this temporary detention did not ripen into re-imprisonment for parole revocation because the Parole Commission ultimately determined that the violation of the conditions of parole did not require revocation. The Fifth District in Girtman also…”
Brumit v. Wainwright (1974)
“Respondent next urges upon us the provisions of F.S. § 947.23(1), F.S.A. providing that the Parole Commission, after determining whether a charge of parole violation has been sustained, may return the parolee to prison to complete his sentence, reinstate parole, "or shall enter…”
Floyd v. PAROLE AND PROBATION COM'N (1987)
“22(7), and the final revocation hearing, see § 947.23, Fla. Stat. (1985). In conclusion, for the foregoing reasons and because parole and probation revocation proceedings are so similar as to be "constitutionally indistinguishable" [*] for purposes of due process considerations,…”
Turner v. Wainwright (1980)
“In both *159 amendments, the Legislature has preserved the distinction between "deliberations" [6] of the Commission and meetings of the Commission at which parole matters are "decided".”
— 947.23(1) — 9 cases
Taylor v. Dugger (1990)
“Appellant, James Taylor, appeals the summary denial of his petition for writ of habeas corpus on the ground that the Florida Parole Commission did not comply with Section 947.23, Florida Statutes (1987), which deals with parole revocation proceedings.”
Brumit v. Wainwright (1974)
“Respondent next urges upon us the provisions of F.S. § 947.23(1), F.S.A. providing that the Parole Commission, after determining whether a charge of parole violation has been sustained, may return the parolee to prison to complete his sentence, reinstate parole, "or shall enter…”
Dees v. State (1974)
“We have for consideration a question from the Seventh Judicial Circuit in and for Volusia County relating to constitutionality of Section 947.23, Florida Statutes, as it is incorporated in Sections 949.”
Shiplett v. Wainwright (1967)
Jackson v. Mayo (1954)
— 947.23(2) — 2 cases
Gibbs v. Wainwright (1974)
Proctor v. Wainwright (1982)
— 947.23(4)(b) — 1 case
Peters v. State (2008)
“Compare § 947.23, Fla. Stat. (2003) (outlining parole revocation procedures), with Morrissey, 408 U.”
— 947.23(4)(d) — 1 case
Hansen v. Fontana (1987)
— 947.23(4)(f) — 1 case
Hansen v. Fontana (1987)
— 947.23(6) — 1 case
Turner v. Wainwright (1980)
“In both *159 amendments, the Legislature has preserved the distinction between "deliberations" [6] of the Commission and meetings of the Commission at which parole matters are "decided".”
— 947.23(6)(a) — 1 case
Peters v. State (2008)
“Compare § 947.23, Fla. Stat. (2003) (outlining parole revocation procedures), with Morrissey, 408 U.”
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