HB 1271-1_ Filed 02/25/2008, 09:42 Drozda
SENATE MOTION
MADAM PRESIDENT:
I move
that Engrossed House Bill 1271 be amended to read as follows:
SOURCE: Page 1, line 1; (08)MO127102.1. -->
Page 1, between the enacting clause and line 1, begin a new
paragraph and insert:
SOURCE: IC 35-41-1-5.5; (08)MO127102.1. -->
"SECTION 1. IC 35-41-1-5.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2008]: Sec. 5.5. "Credit restricted felon"
means a person who has been convicted of at least one (1) of the
following offenses:
(1) Child molesting involving sexual intercourse or deviate
sexual conduct (IC 35-42-4-3(a)), if:
(A) the offense is committed by a person at least
twenty-one (21) years of age; and
(B) the victim is less than twelve (12) years of age.
(2) Child molesting (IC 35-42-4-3) resulting in serious bodily
injury or death.
(3) Murder (IC 35-42-1-1), if:
(A) the person killed the victim while committing or
attempting to commit child molesting (IC 35-42-4-3);
(B) the victim was the victim of a sex crime under
IC 35-42-4 for which the person was convicted; or
(C) the victim of the murder was listed by the state or
known by the person to be a witness against the person in
a prosecution for a sex crime under IC 35-42-4 and the
person committed the murder with the intent to prevent
the person from testifying.
SOURCE: IC 35-50-6-3; (08)MO127102.2. -->
SECTION 2. IC 35-50-6-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 3. (a) A person
assigned to Class I earns one (1) day of credit time for each day
he the
person is imprisoned for a crime or confined awaiting trial or
sentencing.
(b) A person assigned to Class II earns one (1) day of credit time for
every two (2) days
he the person is imprisoned for a crime or confined
awaiting trial or sentencing.
(c) A person assigned to Class III earns no credit time.
(d) A person assigned to Class IV earns one (1) day of credit
time for every six (6) days the person is imprisoned for a crime or
confined awaiting trial or sentencing.".
Page 4, after line 19, begin a new paragraph and insert:
SOURCE: IC 35-50-6-4; (08)MO127102.4. -->
"SECTION 4. IC 35-50-6-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 4. (a) A person who is
not a credit restricted felon and who is imprisoned for a crime or
imprisoned awaiting trial or sentencing is initially assigned to Class I.
(b) A person who is a credit restricted felon and who is
imprisoned for a crime or imprisoned awaiting trial or sentencing
is initially assigned to Class IV. A credit restricted felon may not
be assigned to Class I or Class II.
(b) (c) A person who is not assigned to Class IV may be reassigned
to Class II or Class III if he the person violates any of the following:
(1) A rule of the department of correction.
(2) A rule of the penal facility in which he the person is
imprisoned.
(3) A rule or condition of a community transition program.
However, a violation of a condition of parole or probation may not be
the basis for reassignment. Before a person may be reassigned to a
lower credit time class, he the person must be granted a hearing to
determine his the person's guilt or innocence and, if found guilty,
whether reassignment is an appropriate disciplinary action for the
violation. The person may waive his the right to the hearing.
(d) A person who is assigned to Class IV may be reassigned to
Class III if the person violates any of the following:
(1) A rule of the department of correction.
(2) A rule of the penal facility in which the person is
imprisoned.
(3) A rule or condition of a community transition program.
However, a violation of a condition of parole or probation may not
be the basis for reassignment. Before a person may be reassigned
to Class III, the person must be granted a hearing to determine the
person's guilt or innocence and, if found guilty, whether
reassignment is an appropriate disciplinary action for the
violation. The person may waive the right to the hearing.
(c) (e) In connection with the hearing granted under subsection (b),
(c) or (d), the person is entitled to:
(1) have not less than twenty-four (24) hours advance written
notice of the date, time, and place of the hearing, and of the
alleged misconduct and the rule the misconduct is alleged to have
violated;
(2) have reasonable time to prepare for the hearing;
(3) have an impartial decisionmaker;
(4) appear and speak in his the person's own behalf;
(5) call witnesses and present evidence;
(6) confront and cross-examine each witness, unless the hearing
authority finds that to do so would subject a witness to a
substantial risk of harm;
(7) have the assistance of a lay advocate (the department may
require that the advocate be an employee of, or a fellow prisoner
in, the same facility or program);
(8) have a written statement of the findings of fact, the evidence
relied upon, and the reasons for the action taken;
(9) have immunity if his the person's testimony or any evidence
derived from his the person's testimony is used in any criminal
proceedings; and
(10) have his the person's record expunged of any reference to
the charge if he the person is found not guilty or if a finding of
guilt is later overturned.
Any finding of guilt must be supported by a preponderance of the
evidence presented at the hearing.
(d) (f) A person may be reassigned from Class III to Class I, or Class
II, or Class IV, or from Class II to Class I. A person's assignment to
Class III or Class II shall be reviewed at least once every six (6) months
to determine if he the person should be reassigned to a higher credit
time class. A credit restricted felon may not be reassigned to Class
I or Class II.
SOURCE: IC 35-50-6-5; (08)MO127102.5. -->
SECTION 5. IC 35-50-6-5, AS AMENDED BY P.L.173-2006,
SECTION 39, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2008]: Sec. 5. (a) A person may, with respect to the same
transaction, be deprived of any part of the credit time the person has
earned for any of the following:
(1) A violation of one (1) or more rules of the department of
correction.
(2) If the person is not committed to the department, a violation
of one (1) or more rules of the penal facility in which the person
is imprisoned.
(3) A violation of one (1) or more rules or conditions of a
community transition program.
(4) If a court determines that a civil claim brought by the person
in a state or an administrative court is frivolous, unreasonable, or
groundless.
(5) If the person is a sex offender (as defined in IC 11-8-8-5) and
refuses to register before being released from the department as
required under IC 11-8-8-7.
(6) If the person is a sex offender (as defined in IC 11-8-8-5) and
refuses to participate in a sex offender treatment program
specifically offered to the sex offender by the department of
correction while the person is serving a period of incarceration
with the department of correction.
However, the violation of a condition of parole or probation may not be
the basis for deprivation. Whenever a person is deprived of credit time,
he the person may also be reassigned to Class II (if the person is not
a credit restricted felon) or Class III.
(b) Before a person may be deprived of earned credit time, the
person must be granted a hearing to determine the person's guilt or
innocence and, if found guilty, whether deprivation of earned credit
time is an appropriate disciplinary action for the violation. In
connection with the hearing, the person is entitled to the procedural
safeguards listed in section 4(c) section 4(e) of this chapter. The person
may waive the person's right to the hearing.
(c) Any part of the credit time of which a person is deprived under
this section may be restored.
SOURCE: ; (08)MO127102.6. -->
SECTION 6. [EFFECTIVE JULY 1, 2008]
IC 35-41-1-5.5, as
added by this act, and IC 35-50-6-3, IC 35-50-6-4, and
IC 35-50-6-5, all as amended by this act, apply only to persons
convicted after June 30, 2008.".
Renumber all SECTIONS consecutively.
(Reference is to EHB 1271 as printed February 22, 2008.)
________________________________________
Senator DROZDA