| 1 | Representative(s) Quinones offered the following: |
| 2 |
|
| 3 | Amendment (with title amendments) |
| 4 | Remove everything after the enacting clause |
| 5 |
|
| 6 | and insert: |
| 7 |
|
| 8 | Section 1. Section 961.01, Florida Statutes, is created to |
| 9 | read: |
| 10 | 961.01 Short title.--Sections 961.01-961.07 may be cited |
| 11 | as the "Wrongful Incarceration Compensation Act." |
| 12 | Section 2. Section 961.02, Florida Statutes, is created to |
| 13 | read: |
| 14 | 961.02 Definition; finding of wrongful incarceration upon |
| 15 | release from incarceration for felony offenses.-- |
| 16 | (1) As used in ss. 961.01-961.07, a wrongfully |
| 17 | incarcerated person means a person who is actually innocent and |
| 18 | who has been ordered released from incarceration for a felony |
| 19 | conviction. As used in this act, "actually innocent" means: |
| 20 | (a) The person was charged, by indictment or information, |
| 21 | with the commission of an offense classified as a felony; and |
| 22 | (b) The person did not plead guilty or no contest to the |
| 23 | offense charged or to any lesser included offense, unless the |
| 24 | person was charged with a capital offense; and |
| 25 | (c) The person was convicted of the offense; and |
| 26 | (d) The person was sentenced to incarceration for a term |
| 27 | of imprisonment as a result of the conviction; and |
| 28 | (e) The person was imprisoned solely on the basis of the |
| 29 | conviction for the offense; and |
| 30 | (f) The person did not, by his or her misconduct or |
| 31 | neglect, bring about the prosecution; and |
| 32 | (g) The person's acts did not constitute a crime; and |
| 33 | (h) A court of competent jurisdiction found by clear and |
| 34 | convincing evidence that the offense for which the person was |
| 35 | convicted, sentenced, and imprisoned, including any lesser |
| 36 | included offenses, was not committed by the person and issued an |
| 37 | order vacating, dismissing, or reversing the conviction and |
| 38 | sentence and providing that no further proceedings can be or |
| 39 | will be held against the person on any facts and circumstances |
| 40 | alleged in the proceedings which had resulted in the conviction. |
| 41 | Section 3. Section 961.03, Florida Statutes, is created to |
| 42 | read: |
| 43 | 961.03 Compensation for wrongful incarceration.-- |
| 44 | (1) Except as otherwise provided in this section, and |
| 45 | subject to the limitations and procedures prescribed in s. |
| 46 | 961.04, a person who is found to be a wrongfully incarcerated |
| 47 | person may petition the Legislature for reasonable compensation. |
| 48 | In determining reasonable compensation, the Legislature may |
| 49 | consider the following options: |
| 50 | (a) Loss of wages, salary, or other earned income; |
| 51 | (b) The amount of any fine or court costs imposed and |
| 52 | paid; |
| 53 | (c) The amount of any fees paid to the Department of |
| 54 | Corrections for any required goods or services received during |
| 55 | incarceration; |
| 56 | (d) Loss of assets due to foreclosure, repossession, or |
| 57 | other methods of recovery by a creditor; |
| 58 | (e) Loss of savings and interest; |
| 59 | (f) Lost earnings capacity; |
| 60 | (g) The value of services performed for the state while |
| 61 | incarcerated; |
| 62 | (h) The reasonable cost of future psychological |
| 63 | counseling; and |
| 64 | (i) The reasonable amount of any other losses. |
| 65 | (2) Compensation to a wrongfully incarcerated person may |
| 66 | not include punitive or exemplary damages or compensation for |
| 67 | pain and suffering, humiliation, loss of consortium, emotional |
| 68 | distress, or similar damages. It is the intent of the |
| 69 | Legislature to limit compensation of a wrongfully incarcerated |
| 70 | person to the compensation and reimbursement of expenses |
| 71 | authorized in subsection (1) directly resulting from the |
| 72 | wrongful incarceration. |
| 73 | (3) A claimant shall not be eligible for compensation if |
| 74 | the claimant was also serving a concurrent felony sentence. |
| 75 | (4) Any person awarded compensation pursuant to this Act |
| 76 | who is subsequently convicted of a felony shall, immediately |
| 77 | upon such conviction, not be eligible to receive any unpaid |
| 78 | amounts or benefits from any compensation awarded. Any amount |
| 79 | from an annuity that is forfeited pursuant to this section shall |
| 80 | revert to the state General Revenue Fund. |
| 81 | Section 4. Section 961.04, Florida Statutes, is created to |
| 82 | read: |
| 83 | 961.04 Petition for compensation for wrongful |
| 84 | incarceration.-- |
| 85 | (1) A wrongfully incarcerated person may petition the |
| 86 | Legislature for compensation for losses caused by the |
| 87 | incarceration. The petition, at a minimum, must include: |
| 88 | (a) A certified copy of the order finding the applicant to |
| 89 | be a wrongfully incarcerated person; |
| 90 | (b) Documentation of the length of the sentence served; |
| 91 | (c) Available documentation of employment prior to |
| 92 | incarceration; |
| 93 | (d) Documentation of education attained prior to and |
| 94 | during incarceration; |
| 95 | (e) Available documentation of income earned prior to |
| 96 | incarceration; |
| 97 | (f) Documentation of encumbrances placed on real property |
| 98 | or loans used to pay attorney's fees to defend against or seek |
| 99 | release from incarceration; |
| 100 | (g) Documentation of real property in which the applicant |
| 101 | owned an interest which has been foreclosed upon due to the |
| 102 | incarceration; |
| 103 | (h) Documentation of family status prior to incarceration; |
| 104 | (i) Documentation of criminal history; |
| 105 | (j) Other documentation that the applicant believes should |
| 106 | be considered for determining compensation; and |
| 107 | (k) Other documentation, evidence, or information required |
| 108 | or requested by the Special Master or the Legislature. |
| 109 | Section 5. Section 961.05, Florida Statutes, is created to |
| 110 | read: |
| 111 | 961.05 Holistic relief.-The Legislature may make an award |
| 112 | of compensation that includes, but is not limited to, any of the |
| 113 | following: |
| 114 | (1) HEALTH CARE PLAN.-The Legislature may direct the |
| 115 | appropriate state agency to purchase a comprehensive health care |
| 116 | plan, including dental and mental health coverage. |
| 117 | (2) EDUCATIONAL ASSISTANCE.-The Legislature may waive |
| 118 | tuition and fees for up to a total of 4 years of instruction at |
| 119 | any career center established pursuant to section 1001.44, |
| 120 | Florida Statutes, at any community college established under |
| 121 | part III of chapter 1004, Florida Statutes, or any state |
| 122 | university. The Legislature shall require that for any |
| 123 | educational benefit made, the person shall be required to meet |
| 124 | and maintain the regular admission requirements of, and be |
| 125 | registered at, such career center, community college, or state |
| 126 | university and make satisfactory academic progress as defined by |
| 127 | the educational institution in which the person is enrolled. |
| 128 | (3) JOB PREFERENCE.-The Legislature may award first |
| 129 | preference in employment by the state and its political |
| 130 | subdivisions. |
| 131 | (a) If awarded, the Legislature must require that the |
| 132 | person must be otherwise eligible for employment with the hiring |
| 133 | agency or political subdivision. |
| 134 | (b) If awarded, the Legislature must require that the job |
| 135 | preference benefits awarded do not apply to positions that are |
| 136 | exempt from the State Career Service System under section |
| 137 | 110.205(2), Florida Statutes, positions which are filled by |
| 138 | officers elected by popular vote or persons appointed to fill |
| 139 | vacancies in such offices, members of boards and commissions, |
| 140 | persons employed on a temporary basis without benefits, heads of |
| 141 | departments, and positions that require licensure as a |
| 142 | physician, osteopathic physician, chiropractic physician, |
| 143 | engineer, or membership in The Florida Bar. |
| 144 | (4) WAIVER OF FEES.-The Legislature may waive any |
| 145 | statutory fees required to expunge any arrest or court records |
| 146 | as otherwise subject to expunction by law or court rule and |
| 147 | shall waive any fees for copying costs or other costs of |
| 148 | obtaining public records in furtherance of such expunction. |
| 149 | (5) MONETARY COMPENSATION.--Reasonable compensation as |
| 150 | provided in s. 961.03, may be provided in an amount to be |
| 151 | determined by the Legislature. |
| 152 | (6) Any compensation computed pursuant to subsection (5) |
| 153 | may be awarded in a lump sum or may be paid in an initial lump |
| 154 | sum equal to 20 percent of the compensation award with the |
| 155 | remaining 80 percent of the principal of the compensation award |
| 156 | to be used by the Chief Financial Officer to purchase an |
| 157 | annuity. If the Legislature directs that an annuity be |
| 158 | purchased, the Legislature must provide for the following: |
| 159 | (a) That any annuity purchased shall be purchased from any |
| 160 | A+ rated company, to provide equal monthly installments to the |
| 161 | claimant for a period certain of a stated number of years |
| 162 | commencing no later than 1 year after the effective date of the |
| 163 | appropriation; |
| 164 | (b) That the annuity shall provide that it shall not be |
| 165 | sold, discounted, or used as security for loans and mortgages by |
| 166 | the claimant; and |
| 167 | (c) That the annuity shall contain beneficiary provisions |
| 168 | providing for the annuity's continued disbursement in the event |
| 169 | of the death of the claimant, subject to the provisions of s. |
| 170 | 961.03(4). |
| 171 | (7) An applicant for compensation under this section must |
| 172 | apply for compensation by July 1, 2007, or within 2 years after |
| 173 | he or she is ordered released from incarceration, whichever |
| 174 | occurs later. |
| 175 | Section 6. Section 961.06, Florida Statutes, is created to |
| 176 | read: |
| 177 | 961.06 Sovereign immunity; limits of liability; release |
| 178 | and waiver; collateral sources.- |
| 179 | (1) Any award of relief pursuant to this Act shall not be |
| 180 | deemed to have waived any defense of sovereign immunity or to |
| 181 | have increased the limits of liability on behalf of the state or |
| 182 | any person or entity subject to the provisions of s. 768.28, |
| 183 | Florida Statutes. |
| 184 | (2) As a condition of receiving any compensation under |
| 185 | this Act, a person shall execute a release and waiver on behalf |
| 186 | of the person or his or her heirs, successors, and/or assigns |
| 187 | forever releasing the State of Florida or any agency, |
| 188 | instrumentality, officer, employee, or political subdivision |
| 189 | thereof, or any other entity subject to the provisions of s. |
| 190 | 768.28, Florida Statutes, from any and all present or future |
| 191 | claims the person or his or her heirs, successors, and/or |
| 192 | assigns may have against such enumerated entities and arising |
| 193 | out of the factual situation in connection with the conviction |
| 194 | for which the compensation is being sought under this Act. |
| 195 | (3) The person is not eligible for compensation if the |
| 196 | person was awarded a final judgment in a court of law, or has |
| 197 | received any funds pursuant to a settlement agreement for |
| 198 | compensation or damages arising out of the factual situation in |
| 199 | connection with the conviction for which compensation is sought |
| 200 | under this Act. |
| 201 | Section 7. Section 961.07, Florida Statutes, is created to |
| 202 | read: |
| 203 | 961.07 Attorney's and Lobbyist's Fees.-- |
| 204 | Attorney's and lobbyist's fees are subject to the |
| 205 | provisions of section 768.28(8), Florida Statutes. No |
| 206 | compensation shall be made for attorney's fees charged for legal |
| 207 | services relating to a finding of actual innocence as defined by |
| 208 | this Act. |
| 209 | Section 8. This act shall take effect July 1, 2005. |
| 210 |
|
| 211 |
|
| 212 | ================= T I T L E A M E N D M E N T ================= |
| 213 | Remove the entire title |
| 214 |
|
| 215 | and insert: |
| 216 |
|
| 217 | A bill to be entitled |
| 218 | An act relating to compensation for wrongfully |
| 219 | incarcerated persons; creating s. 961.01, F.S.; providing |
| 220 | a short title; creating s. 961.02, F.S.; defining the term |
| 221 | "actually innocent"; requiring court findings; creating s. |
| 222 | 961.03, F.S.; authorizing petitions to the Legislature for |
| 223 | reasonable compensation; authorizing compensation for |
| 224 | certain wrongfully incarcerated persons; providing |
| 225 | exceptions and limitations; creating s. 961.04, F.S.; |
| 226 | providing procedures to petition the Legislature for |
| 227 | compensation; creating s. 961.05, F.S.; providing for non- |
| 228 | monetary and monetary relief; providing for the manner of |
| 229 | payment of compensation; providing timeframes for applying |
| 230 | for compensation; creating s. 961.06, F.S.; providing for |
| 231 | the preservation of sovereign immunity; providing for |
| 232 | release and waiver; providing for collateral sources; |
| 233 | creating s. 961.07, F.S.; providing for attorney's and |
| 234 | lobbyist's fees; providing an effective date. |