HB 1025

1
A bill to be entitled
2An act relating to compensation for wrongful
3incarceration; creating the "Victims of Wrongful
4Incarceration Compensation Act"; defining "wrongfully
5incarcerated person"; providing for determination by the
6courts of wrongful incarceration of certain defendants
7upon petition; providing conditions which constitute
8eligibility and ineligibility for compensation under the
9act; specifying forms of compensation and benefits to
10which a wrongfully incarcerated person is entitled;
11providing requirements with respect to such compensation
12and benefits; providing procedures and requirements with
13respect to application by a claimant for compensation and
14benefits; providing procedures and requirements of the
15Chief Financial Officer and the Department of Financial
16Services with respect to the processing of a claimant's
17application; providing specified notice requirements;
18providing for the issuance of a warrant by the Chief
19Financial Officer; requiring a claimant to sign a release
20and waiver as a precondition to receiving a warrant;
21requiring the Department of Legal Affairs and the
22Department of Law Enforcement to judicially and
23administratively expunge an eligible claimant's criminal
24record arising from his or her wrongful arrest,
25conviction, and incarceration; providing for waiver of
26fees for expunction; authorizing the Department of
27Financial Services to adopt rules; providing a limitation
28on attorney's fees and lobbyist's fees; providing that an
29applicant who rejects an offer to settle his or her claim
30for compensation under the act may file suit against the
31state for compensation; providing an effective date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Short title.--This act may be cited as the
36"Victims of Wrongful Incarceration Compensation Act."
37     Section 2.  Definition; finding of wrongful
38incarceration.--
39     (1)  As used in this act, the term "wrongfully incarcerated
40person" means a person:
41     (a)  Whose felony conviction and sentence have been vacated
42by a court of competent jurisdiction; and
43     (b)  With respect to whom the court has made a finding by
44clear and convincing evidence that he or she:
45     1.  Did not commit the offense that resulted in his or her
46conviction and incarceration; and
47     2.  Did not aid, abet, or act as an accomplice or accessory
48to a person who committed the offense that resulted in his or
49her conviction and incarceration.
50     (2)  Whenever a court enters an order vacating a conviction
51and sentence, upon petition by the defendant or the defendant's
52attorney, the court must determine whether the defendant was
53wrongfully incarcerated and set forth in detail the evidence on
54which that finding is based.
55     (3)  A person whose sentence and conviction have been
56vacated as provided in subsection (1), who has not been
57subsequently convicted of the same offense or any lesser
58included offense for which the previous sentence and conviction
59were vacated, who currently has no charges pending against him
60or her related to the charges for which the previous sentence
61and conviction were vacated, and against whom no further
62criminal proceedings can or will be initiated by any
63prosecutorial authority may petition the court for a
64determination of whether he or she is a wrongfully incarcerated
65person if the prosecuting authority is given reasonable notice
66in writing that the person intends to petition the court for
67such a finding.
68     Section 3.  Compensation for wrongful incarceration.--
69     (1)  Except as otherwise provided in this section and
70subject to the limitations and procedures prescribed in section
714, a person who is found to be a wrongfully incarcerated person
72is entitled to:
73     (a)  Monetary compensation for wrongful incarceration,
74which shall be calculated at a rate of $50,000 for each year of
75wrongful incarceration and prorated as necessary to account for
76portions of years, up to a maximum of $1,500,000. The annual
77rate of compensation and maximum total compensation shall be
78indexed to the annual consumer price index or similar inflation
79indicators.
80     1.  The total amount awarded is subject to specific
81appropriation made by a separate budget request in addition to
82the legislative budget request of the Department of Financial
83Services.
84     2.  The total amount awarded shall be used by the
85Department of Financial Services to purchase an annuity on
86behalf of the petitioner for a term of not less than 10 years.
87The terms of the annuity shall:
88     a.  Provide that the annuity may not be sold, discounted,
89or used as security for a loan or mortgage by the applicant.
90     b.  Contain beneficiary provisions for the continued
91disbursement of the annuity in the event of the death of the
92applicant.
93     c.  Provide that payment of the annuity reverts to the
94state in the event that the applicant is convicted of a felony
95after he or she has received an award of compensation under this
96act.
97
98When an applicant who has received an award of compensation
99under this act is convicted of a felony after he or she has
100received the award of compensation as described in sub-
101subparagraph c., the Attorney General and the applicant must
102immediately report the felony conviction to the issuer of the
103annuity.
104     (b)  A waiver of tuition and fees for up to 120 hours of
105instruction at any career center established under s. 1001.44,
106Florida Statutes, any community college established under part
107III of chapter 1004, Florida Statutes, or any state university,
108if the person found to have been wrongfully incarcerated:
109     1.  Meets and maintains the regular admission requirements
110of such career center, community college, or state university;
111     2.  Remains registered at such educational institution; and
112     3.  Makes satisfactory academic progress as defined by the
113educational institution in which the claimant is enrolled.
114     (c)  Reimbursement for up to a maximum of 52 hours of
115psychological counseling services by a licensed psychologist or
116psychiatrist.
117     (d)  Reimbursement for health insurance premiums for up to
1185 years after cessation of incarceration if the claimant is not
119employed or if the claimant is employed but health insurance is
120not provided by his or her employer.
121     (2)  A wrongfully incarcerated person is not eligible for
122compensation or benefits under this act if:
123     (a)  The person submits his or her application to the
124Department of Financial Services more than 2 years after a court
125of competent jurisdiction determines the person's wrongful
126incarceration; or
127     (b)  Prior to his or her wrongful conviction and
128incarceration, the person was a convicted felon.
129     Section 4.  Application for compensation and benefits for
130wrongful incarceration.--
131     (1)  A wrongfully incarcerated person seeking compensation
132and benefits as described in section 3 must apply to the Chief
133Financial Officer for such compensation and benefits. The
134application must include:
135     (a)  A certified copy of the order finding the claimant to
136be a wrongfully incarcerated person;
137     (b)  Certified copies of the original judgment and
138sentence;
139     (c)  Documentation demonstrating the length of the sentence
140served, including documentation obtained from the Department of
141Corrections regarding the person's admission into and release
142from the department's custody;
143     (d)  Positive proof of identification, including
144fingerprints and a current form of photo identification,
145demonstrating that the person seeking compensation is the same
146individual who was wrongfully incarcerated;
147     (e)  All documentation maintained by the Department of Law
148Enforcement related to the person's criminal history or criminal
149record; and
150     (f)  Any other documentation, evidence, or information
151required by rules adopted by the Department of Financial
152Services on behalf of the Chief Financial Officer pursuant to
153section 5.
154     (2)  Upon receipt of an application for compensation, the
155Chief Financial Officer shall examine the application and notify
156the claimant within 30 calendar days of receipt thereof of any
157errors or omissions and request any additional information
158relevant to the review of the application. The Chief Financial
159Officer may not deny an application for failure of the claimant
160to correct an error or omission or supply additional information
161unless the Chief Financial Officer timely notifies the claimant
162of such errors or omissions or requests such additional
163information within the 30-day period specified in this
164subsection. The Department of Financial Services shall process
165and review each completed application within 90 calendar days of
166receipt of the application. If the department determines that
167the claim for compensation meets the requirements of this act,
168the department shall notify the claimant within 5 business days
169of that determination.
170     (3)  Within 30 calendar days after the issuance of notice
171to the claimant under subsection (2), the Chief Financial
172Officer shall draw and issue a state warrant for the entire
173amount of the claim from the General Revenue Fund or any other
174available state funds.
175     (4)  Before receiving a state warrant under subsection (3),
176the claimant must sign a release and waiver on behalf of the
177claimant, and his or her heirs, successors, and assigns, forever
178releasing the state or any agency, instrumentality, or political
179subdivision thereof, or any other entity subject to the
180provisions of s. 768.28, Florida Statutes, from all present or
181future claims that the claimant or his or her heirs, successors,
182or assigns may have against such entities arising out of the
183factual situation in connection with the conviction for which
184compensation is sought under this act.
185     (5)  Notwithstanding any provision of s. 943.0585, Florida
186Statutes, the Department of Legal Affairs and the Department of
187Law Enforcement shall, upon notification by the Department of
188Financial Services that a claimant is eligible for compensation,
189immediately take all action necessary to judicially and
190administratively expunge the claimant's criminal record arising
191from his or her wrongful arrest, wrongful conviction, and
192wrongful incarceration. All fees for this process shall be
193waived.
194     Section 5.  Rules.--The Department of Financial Services,
195on behalf of the Chief Financial Officer, may adopt rules
196regarding the forms and procedures related to applications for
197compensation under this act.
198     Section 6.  Limitations on attorney's fees and lobbyist's
199fees.--An attorney, advocate, lobbyist, or any other entity
200acting in a similar capacity is prohibited from receiving
201compensation in excess of 25 percent of the total award under
202this act, or $1,000, whichever is greater, for providing
203assistance to, representing, or acting on behalf of a wrongfully
204accused person.
205     Section 7.  Rejection of offer to settle; suit against
206state.--If the applicant rejects the offer to settle his or her
207claim for compensation pursuant to this chapter, the applicant
208may file suit against the state for compensation in the circuit
209court in which the applicant was convicted pursuant to s.
210768.28, Florida Statutes.
211     Section 8.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.