Senate Bill sb2564

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    Florida Senate - 2007                                  SB 2564

    By Senator Hill





    1-175-07

  1                      A bill to be entitled

  2         An act relating to the investigation of the

  3         innocence of convicted felons; creating ss.

  4         940.201-940.212, F.S.; creating the Florida

  5         Innocence Inquiry Commission; providing

  6         definitions; providing legislative intent;

  7         establishing the commission as an independent

  8         commission located within the Executive Office

  9         of the Governor for administrative purposes

10         only; providing for membership, meetings, terms

11         of office, and reimbursement of expenses;

12         requiring the commission to employ a director;

13         establishing qualifications of the director;

14         creating duties and responsibilities for the

15         commission; providing for the filing of claims

16         of innocence; requiring a claimant to waive

17         certain procedural rights; requiring the

18         claimant to sign an agreement with the

19         commission; providing for the claimant to be

20         represented by legal counsel; authorizing the

21         commission to use certain procedures to obtain

22         information relating to the claim of innocence;

23         providing procedures for the commission

24         proceedings; providing for judicial review of

25         claims found to demonstrate sufficient evidence

26         of factual innocence; providing procedures for

27         a court to review the claim of innocence;

28         prohibiting further review of a claim of

29         innocence; providing an effective date.

30  

31  Be It Enacted by the Legislature of the State of Florida:

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 1         Section 1.  Sections 940.201, 940.202, 940.203,

 2  940.204, 940.205, 940.206, 940.207, 940.208, 940.209, 940.210,

 3  940.211, and 940.212, Florida Statutes, are created to read:

 4         940.201  Short title.--Sections 940.201-940.212 may be

 5  cited as the "Florida Innocence Inquiry Commission Act."

 6         940.202  Definitions.--As used in ss. 940.201-940.212,

 7  the term:

 8         (1)  "Claim of factual innocence" means a claim on

 9  behalf of a living person convicted of a felony in the circuit

10  court which asserts the complete innocence of any criminal

11  responsibility for the felony for which the person was

12  convicted and for any other reduced level of criminal

13  responsibility relating to the crime, and for which there is

14  some credible, verifiable evidence of innocence which has not

15  been presented at trial or considered at a hearing granted

16  through postconviction relief.

17         (2)  "Claimant" means a person who files a claim with

18  the Florida Innocence Inquiry Commission alleging that he or

19  she is factually innocent of the felony for which he or she

20  was convicted.

21         (3)  "Commission" means the Florida Innocence Inquiry

22  Commission.

23         (4)  "Director" means the director of the Florida

24  Innocence Inquiry Commission.

25         (5)  "Victim" means the victim of the crime or, if the

26  victim of the crime is deceased, the next of kin of the

27  victim.

28         940.203  Legislative intent.--The Legislature intends

29  to establish an extraordinary procedure by which to

30  investigate and determine credible claims of factual

31  

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 1  innocence. The procedure requires an individual to voluntarily

 2  waive rights and privileges as described in this act.

 3         940.204  Florida Innocence Inquiry Commission

 4  established.--

 5         (1)  There is established the Florida Innocence Inquiry

 6  Commission. The commission shall be an independent commission

 7  and shall be located within the Executive Office of the

 8  Governor for administrative purposes only.

 9         (2)  The Executive Office of the Governor shall provide

10  administrative support to the commission as needed. The

11  Executive Office of the Governor may not reduce or modify the

12  budget of the commission or use funds appropriated to the

13  commission without the approval of the commission.

14         940.205  Membership; chair; meetings; quorum.--

15         (1)(a)  The commission shall consist of nine members.

16  The Governor shall appoint all members of the commission. In

17  making each appointment, the Governor shall make a good faith

18  effort to appoint members who reflect the racial, ethnic, and

19  cultural diversity of the state's population.

20         (b)  The Governor shall also appoint an alternate

21  commissioner for each commission member appointed. The

22  alternate commissioner shall serve in the event of a

23  scheduling conflict, a conflict of interest, the disability of

24  the appointed commissioner, or a disqualification arising in a

25  particular case.

26         (2)  The commissioners shall select one of its members

27  as chair of the commission.

28         (3)(a)  The commission shall hold its initial meeting

29  no later than January 31, 2008. The commission shall meet a

30  minimum of once every 6 months and may meet more often at the

31  

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 1  call of the chair. The commission shall meet at a time and

 2  place designated by the chair.

 3         (b)  Meetings of the commission shall be open to the

 4  public and the commission must provide reasonable notice of

 5  the meetings. A majority of the members constitute a quorum.

 6  Except as provided in s. 940.210, all actions of the

 7  commission shall be by majority vote.

 8         940.206  Terms of members; compensation; expenses.--

 9         (1)  The Governor shall appoint each member of the

10  commission for a 3-year term. A commissioner may not serve for

11  more than two consecutive 3-year terms.

12         (2)  For the initial appointments, three of the members

13  shall be appointed to 1-year terms; three of the members shall

14  be appointed to 2-year terms; and three of the members shall

15  be appointed to 3-year terms. Thereafter, all terms shall be

16  for 3 years.

17         (3)  All terms of members shall begin on January 1 and

18  end on December 31. The Governor may remove a member for

19  cause. Vacancies shall be filled by the Governor.

20         (4)  The members of the commission shall serve without

21  compensation, but are entitled to reimbursement for per diem

22  and travel expenses pursuant to s. 112.061 while performing

23  their duties.

24         940.207  Director and other staff.--The commission

25  shall employ a director. The director must be an attorney who

26  is licensed to practice in this state at the time of

27  appointment and at all times during his or her service as the

28  director. The director shall assist the commission in drafting

29  rules for processing cases accepted for review, coordinate the

30  investigation of cases accepted for review, maintain records

31  of all case investigations, prepare reports describing

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 1  commission investigations and recommendations to a circuit

 2  court, and apply for and accept on behalf of the commission

 3  any funds that are available from government grants, private

 4  gifts, donations, or bequests from any source. Subject to the

 5  approval of the chair and as funds permit, the director shall

 6  employ other staff and contract for services as necessary to

 7  assist the commission in performing its duties.

 8         940.208  Duties of the commission.--The commission

 9  shall:

10         (1)  Establish the criteria and screening process to be

11  used to determine which cases will be accepted for review.

12         (2)  Conduct inquiries into claims of factual

13  innocence, with priority for investigation given to those

14  cases in which the convicted person is incarcerated solely for

15  the crime for which he or she claims factual innocence.

16         (3)  Coordinate the investigation of cases accepted for

17  review.

18         (4)  Maintain records of all case investigations.

19         (5)  Prepare written reports detailing the

20  investigations and the recommendations to the circuit court at

21  the completion of each inquiry.

22         (6)  Apply for and accept any funds that are available

23  for the commission's work from government grants, private

24  gifts, donations, or bequests from any source.

25         940.209  Claims of innocence; waiver of convicted

26  person's procedural safeguards and privileges; formal inquiry;

27  notification of the crime victim.--

28         (1)  A claim of factual innocence may be filed with the

29  commission by a court, an individual, or a governmental

30  entity. The decision to commence or refuse to commence a

31  formal inquiry regarding the claim of factual innocence shall

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 1  be made at the sole discretion of the commission. The

 2  commission may informally screen and dismiss a case summarily

 3  at its discretion.

 4         (2)(a)  A formal inquiry into a claim of innocence may

 5  not begin unless the director or the director's designee

 6  obtains a signed agreement from the claimant. The agreement

 7  must acknowledge that the claimant waives his or her

 8  procedural rights and privileges, agrees to cooperate with the

 9  commission, and agrees to provide full disclosure to the

10  commission for all inquiries relating to the claim of

11  innocence. The waiver does not apply to any legal matter

12  unrelated to a claimant's claim of innocence.

13         (b)  A claimant has the right to be represented by

14  counsel before executing the commission's agreement and, if a

15  formal inquiry is commenced, to be represented by counsel

16  throughout the formal inquiry. If the convicted person is

17  represented by private counsel, the claimant's counsel must be

18  present at the signing of the agreement. If the claimant is

19  not represented by counsel, the chair shall determine if the

20  claimant is indigent and, if so, enter an order for the

21  appointment of counsel for the purpose of advising the

22  claimant concerning the commission's agreement.

23         (3)  If a formal inquiry is commenced into the

24  claimant's claim of factual innocence, the director must use

25  all due diligence to notify the victim in order to explain the

26  inquiry process. The director must advise the victim that he

27  or she has the right to be present at any hearing and to offer

28  his or her views throughout the commission's investigation.

29         (4)  The commission may use any measure otherwise

30  provided to counsel in law or court rule to obtain the

31  

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 1  information necessary to complete its inquiry. The commission

 2  may:

 3         (a)  Issue process to compel the attendance of

 4  witnesses and the production of documents or other evidence;

 5  and

 6         (b)  Petition the Circuit Court of Leon County or the

 7  circuit court in the county in which the claimant was

 8  convicted to enforce the process to acquire the information or

 9  for other relief.

10         (5)  Any challenge with regard to the authority of the

11  commission to proceed or to the commission's claim for access

12  to information or evidence shall be heard by the chair,

13  including any in camera review required by law.

14         (6)  When performing his or her duties for the

15  commission, the director or the director's designee may serve

16  subpoenas or other process issued by the commission throughout

17  the state in the same manner and with the same effect as an

18  officer authorized to serve process under law.

19         (7)  All laws governing discovery and disclosure which

20  are in effect at the time of the formal inquiry shall be

21  enforceable as if the claimant were currently being tried for

22  the charge for which the claimant is claiming innocence.

23         (8)  If at any point during an inquiry the claimant

24  refuses to comply with requests of the commission or is

25  otherwise deemed to be uncooperative by the commission, the

26  commission shall discontinue the inquiry.

27         940.210  Commission proceedings.--

28         (1)  At the completion of a formal inquiry, all

29  relevant evidence must be presented to the full commission at

30  a hearing.

31  

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 1         (2)  The director shall use all due diligence to notify

 2  the victim at least 30 days before the hearing held by the

 3  full commission in regard to the victim's case. The director

 4  must notify the victim that he or she may attend the hearing.

 5  If the victim plans to attend the hearing, the victim must

 6  notify the commission at least 10 days before the hearing of

 7  his or her intent to attend.

 8         (3)  After hearing the evidence on the claim of factual

 9  innocence, the full commission shall vote to dispose of the

10  case as provided by this subsection. All members of the

11  commission must vote.

12         (a)  If a majority of the commission decides that there

13  is reasonable cause to believe that the claimant is factually

14  innocent of the crime for which the claimant was convicted,

15  the claimant may bring an action in the circuit court in the

16  circuit in which the claimant was convicted. The election by

17  the claimant to file the action is the exclusive procedure

18  available to the claimant pursuant to this act.

19         (b)  If the commission unanimously decides that there

20  is reasonable cause to believe that the claimant is factually

21  innocent of the crime for which the claimant was convicted

22  following a plea of guilty, the claimant may bring an action

23  in the circuit court in the circuit in which the claimant was

24  convicted. The election by the claimant to file the action is

25  the exclusive procedure available to the claimant pursuant to

26  this act.

27         (c)  If the commission believes that there is

28  reasonable cause to believe that the claimant is factually

29  innocent, the director shall prepare a report of the hearing,

30  including the findings of fact and conclusions of law, and

31  present the report and recommendation of reasonable cause to

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 1  the chief judge of the circuit in which the claimant was

 2  convicted by filing the report and recommendation with the

 3  clerk of court. The report and recommendation shall be sent to

 4  the state attorney in noncapital cases and to the state

 5  attorney and Attorney General in capital cases.

 6         (d)  If the commission believes that the claimant is

 7  factually innocent, the claimant must bring the action in

 8  circuit court within 1 year after the date of the report and

 9  recommendation is received by the circuit court.

10         (4)  If the commission determines that there is not

11  reasonable cause to believe that the claimant is factually

12  innocent of the crime for which the claimant was convicted or

13  to which the claimant entered a plea of guilty, the commission

14  shall dismiss the claim of factual innocence.

15         (5)  Evidence of criminal acts, professional

16  misconduct, or other wrongdoing that is disclosed through

17  formal inquiry or commission proceedings shall be referred to

18  the appropriate authority. Evidence favorable to the claimant

19  which is disclosed through formal inquiry or commission

20  proceedings shall be disclosed to the claimant and to the

21  counsel of the claimant, if the claimant has counsel.

22         (6)  All proceedings of the commission shall be

23  recorded and transcribed as part of the record. All votes of

24  the commission members shall be recorded in the record.

25         940.211  Civil action.--

26         (1)  In any civil action filed under s. 940.210, the

27  court shall determine if the claimant is factually innocent of

28  the crime for which the claimant was convicted or for which

29  the claimant filed a plea of guilty. The civil action must be

30  filed in the circuit court in the judicial circuit in which

31  the claimant was convicted.

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 1         (2)  The judge shall enter an order setting the case

 2  for hearing and shall require the state to file a response to

 3  the report and recommendation of the commission within 60 days

 4  after the date of the order.

 5         (3)  The state attorney or the state attorney's

 6  designee shall represent the state in the civil action before

 7  the court.

 8         (4)  The court shall conduct an evidentiary hearing. At

 9  the hearing, the court may compel the testimony of any

10  witness, including the claimant. The claimant may not assert

11  any privilege or prevent a witness from testifying. The

12  claimant has a right to be present at the evidentiary hearing

13  and to be represented by counsel. A waiver of the right to be

14  present must be in writing.

15         (5)  The court shall determine if the claimant is

16  indigent and, if so, enter an order appointing counsel for the

17  claimant. The court may also enter an order relieving an

18  indigent claimant of all or a portion of the costs of the

19  proceedings.

20         (6)  The clerk of court shall provide written

21  notification to the victim at least 30 days before any

22  case-related hearings.

23         (7)  Upon the motion of either party, the court may

24  direct the attorneys for the parties to appear for a

25  conference on any matter in the case.

26         (8)  The court shall issue an order determining if the

27  claimant has proven by clear and convincing evidence that the

28  claimant is innocent of the charges.

29         940.212  No right to further review of decision;

30  convicted person retains right to other postconviction

31  relief.--

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 1         (1)  Unless otherwise authorized by this act, the

 2  decisions of the commission and of the court are final and are

 3  not subject to further review by appeal, certification, writ,

 4  motion, or otherwise.

 5         (2)  A claim of factual innocence asserted through the

 6  commission does not adversely affect the convicted person's

 7  rights to other postconviction relief.

 8         Section 2.  This act shall take effect upon becoming a

 9  law.

10  

11            *****************************************

12                          SENATE SUMMARY

13    Creates the Florida Innocence Inquiry Commission.
      Establishes the commission as an independent commission
14    located within the Executive Office of the Governor.
      Provides for membership, meetings, terms of office, and
15    reimbursement of expenses. Requires the commission to
      employ a director and establishes the qualifications of
16    the director. Creates duties and responsibilities of the
      commission. Provides for the filing of claims of
17    innocence. Requires a claimant to waive certain
      procedural rights. Provides for the claimant to be
18    represented by legal counsel. Authorizes the commission
      to use certain procedures to obtain information relating
19    to the claim of innocence. Provides for judicial review
      of claims found to demonstrate sufficient evidence of
20    factual innocence. Prohibits further review of a claim of
      innocence.
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