Rule 3.101-2 governs the discretionary transfer of supervision. A receiving state can accept the transfer of a supervised individual who does not meet the mandatory acceptance criteria in Rules 3.101 and 3.101-1. See discussion, supra at 3.1. However, this acceptance is at the discretion of the receiving state under circumstances not covered by mandatory acceptance. For example, a supervised individual who is ineligible for mandatory transfer due to the nature of the offense or failure to meet residency and employment requirements may still be transferred under the discretionary provisions of the rules. See ICAOS Advisory Opinion 4-2005. Under such circumstances, transfer may be warranted when in the opinion of both the sending and receiving states such a transfer is in the interests of justice and rehabilitation. It must be emphasized, however, that a discretionary transfer requires the consent of both the sending state and receiving state.
PRACTICE NOTE
The sending state must submit a transfer request along with all relevant information necessary for the receiving state to investigate and accept the transfer. Rule 3.107 specifies the information that must be provided to the receiving state prior to transfer.
With limited exceptions, a sending state shall not allow a supervised individual to relocate without the receiving state’s explicit acceptance. See Rule 2.110. Allowing the supervised individual to relocate prior to acceptance may trigger two events:
the sending state shall order the supervised individual to return to the sending state, and
the receiving state can reject the placement, requiring a new transfer request.
See Rule 2.110 (a)(3); Practically, this means that no court or paroling authority may authorize a supervised individual to relocate before acceptance by the receiving state, unless the transfer of supervision is accomplished pursuant to expedited reporting instructions under Rules 3.101-1, 3.103, 3.103-1 and 3.103-2. See discussion infra § 3.4.1.
If a supervised individual is present in a receiving state without proper approval, the sending and receiving states are required to immediately notify one another. Upon confirmation of the unauthorized presence, the sending and receiving states may mutually agree to allow the supervised individual to temporarily remain in the receiving state and issue reporting instructions while a transfer investigation is completed. If no such agreement is reached, the sending state must order the supervised individual to return to the sending state within 15 business days. Following a failure of the individual to return, a nationwide warrant and retaking of the individual is required. See Rule 2.110 (a)(3).