CS/HB 1025

1
A bill to be entitled
2An act relating to compensation for wrongful
3incarceration; creating the "Victims of Wrongful
4Incarceration Compensation Act"; providing that a person
5who has been wrongfully convicted of a felony offense and
6incarcerated within the Department of Corrections as a
7result of that conviction may be financially compensated
8if determined to be eligible; providing conditions which
9constitute eligibility for compensation under the act;
10defining the term "actually innocent"; providing for
11judicial finding of eligibility, amount of compensation,
12and disbursement of funds; providing for a separate
13judicial finding regarding attorney's fees and costs;
14providing criteria for judicial findings; providing duties
15of the Department of Financial Services and the Chief
16Financial Officer; requiring a specific request regarding
17release of funds; authorizing the Department of Financial
18Services to make specified payments; providing that
19payment shall be made pursuant to specific appropriation
20provided to the Department of Financial Services;
21requiring an executed release and waiver as a condition
22precedent to tender of payment; providing procedures and
23requirements with respect to payment; providing for
24legislative redress; providing for waiver of specified
25tuition and fees for claimants compensated under the act;
26providing requirements with respect to educational
27benefits; authorizing the appointment of a public defender
28to assist with the process of expunging specified records;
29prohibiting government entities from charging fees for the
30implementation of the expunction provisions; providing
31that the Legislature is not deemed to have waived any
32defense of sovereign immunity or increased the limits of
33liability as a result of the act or the payment of a claim
34thereunder; providing legislative intent with respect to
35amounts awarded under the act; providing an effective
36date.
37
38     WHEREAS, the Legislature recognizes that no system of
39justice is impervious to human error, and
40     WHEREAS, United States v. Hasting, 461 U.S. 499 (1983),
41reads, in part, "Given the myriad safeguards provided to assure
42a fair trial, and taking into account the reality of the human
43fallibility of the participants, there can be no such thing as
44an error-free, perfect trial, and the Constitution does not
45guarantee such a trial.", and
46     WHEREAS, the Legislature acknowledges that the state's
47system of justice infrequently yields imperfect results which
48may have tragic consequences, and
49     WHEREAS, this act is based on a moral desire to acknowledge
50those who are wrongfully convicted of a felony offense,
51incarcerated as a result of that conviction, and determined to
52be actually innocent and is not a recognition of a
53constitutional right or violation, and
54     WHEREAS, the Legislature intends that any compensation made
55pursuant to this act acknowledges the fact that the claimant
56suffered significant damages unique to the claimant which
57resulted from his or her physical restraint and the deprivation
58of freedom, and
59     WHEREAS, the Legislature intends that any compensation made
60pursuant to this act be the sole compensation to be provided by
61the state for any and all present and future claims arising out
62of the factual situation in connection with the claimant's
63conviction and imprisonment, NOW, THEREFORE,
64
65Be It Enacted by the Legislature of the State of Florida:
66
67     Section 1.  Short title.--This act may be cited as the
68"Victims of Wrongful Incarceration Compensation Act."
69     Section 2.  Eligibility for compensation for wrongful
70incarceration.--
71     (1)  A person who has been wrongfully convicted of a felony
72offense and incarcerated in a prison within the Florida
73Department of Corrections as a result of that conviction is
74eligible for compensation if:
75     (a)  The conviction and sentence has been vacated,
76dismissed, or reversed by a court of competent jurisdiction;
77     (b)  No further proceedings can or will be held against the
78claimant on any facts and circumstances alleged in the
79proceedings which resulted in the conviction;
80     (c)  The claimant petitions the court for a finding of
81eligibility and amount of compensation no more than 6 months
82after the order vacating, reversing, or dismissing the sentence;
83     (d)  The claimant has no other suits pending in state or
84federal court requesting compensation arising out of the factual
85situation in connection with the conviction for which
86compensation is being sought under this act;
87     (e)  The claimant has not been found guilty of any felony
88offenses other than the conviction which was dismissed,
89reversed, or vacated that is the basis for the claim for
90wrongful incarceration and no felony offenses are currently
91pending;
92     (f)  A claim bill has not been filed relating to the
93claimant's conviction and incarceration that is the basis for
94compensation under this act; and
95     (g)  The court has made a finding by clear and convincing
96evidence that the claimant is actually innocent.
97     (2)  As used in this section, the term "actually innocent"
98means:
99     (a)  The claimant's acts did not constitute a crime;
100     (b)  The claimant did not commit the offense that resulted
101in his or her conviction and incarceration; and
102     (c)  The claimant did not aid, abet, or act as an
103accomplice or accessory to a person who committed the offense
104that resulted in his or her conviction and incarceration.
105     Section 3.  Judicial finding of eligibility and amount of
106compensation; findings as to attorney's fees.--
107     (1)  The claimant may petition the same court that issued
108the order vacating, reversing, or dismissing the claimant's
109conviction and sentence to determine whether the claimant is
110eligible for compensation pursuant to this act. Such petition
111may be filed contemporaneously with the motion to vacate,
112reverse, or dismiss, but may not be filed more than 6 months
113after the order vacating, reversing, or dismissing the
114conviction and sentence has been issued. Upon a finding that the
115claimant is eligible for compensation pursuant to this act, the
116court shall also make a finding regarding the amount of
117compensation using the factors set forth in this act.
118     (2)  In making a finding regarding the amount of
119compensation for an eligible claimant, the court shall consider
120the following factors:
121     (a)  The claimant's earning capacity;
122     (b)  The claimant's need for drug counseling, alcohol
123counseling, or both;
124     (c)  The claimant's need for mental health counseling;
125     (d)  The claimant's need for health insurance; and
126     (e)  The claimant's need for housing.
127     (3)  For determinations made in 2008, compensation may not
128exceed a rate of $50,000 per year of incarceration after
129conviction, prorated as necessary to account for portions of
130years, up to a maximum of $1,500,000. For determinations made
131after 2008, the court may adjust the annual rate of compensation
132and maximum amount of compensation for inflation using the
133Consumer Price Index starting in 2008.
134     (4)  The court shall determine whether the compensation
135shall be payable to the claimant in one single disbursement,
136through the purchase of an annuity, or through any other
137combination thereof and shall make specific findings regarding
138disbursement of funds.
139     (5)  The court shall make a separate finding regarding the
140amount of attorney's fees and reasonable costs. The court may
141not award attorney's fees that exceed a total of 25 percent of
142the court's finding regarding the amount of compensation to the
143claimant, or $1,000, whichever is greater. The finding shall
144state with specificity the fees for each of the named attorneys,
145as limited by this act. The court shall make a separate finding
146as to the amount of their costs.
147     (6)  The court shall not make any findings pursuant to this
148section regarding fault, liability, or damages.
149     (7)  Findings by the court regarding eligibility, the
150amount of compensation, and the amount of attorney's fees are
151not appealable. If the claimant chooses not to accept the
152court's findings, the claimant's sole recourse is the filing of
153a legislative claim bill in accordance with the current Rules of
154the Florida House of Representatives and the Rules of the
155Florida Senate.
156     Section 4.  Duties of the Department of Financial Services
157and the Chief Financial Officer.--
158     (1)  No later than 10 days after receiving the court's
159findings regarding the amount of compensation, the Chief
160Financial Officer shall request release of funds pursuant to
161chapter 216, Florida Statutes.
162     (2)  Upon release of the requested funds by the Legislative
163Budget Commission, the Department of Financial Services shall
164pay the amount of compensation as determined by the court
165pursuant to section 3. The Department of Financial Services is
166directed to execute all necessary agreements to implement this
167act.
168     (3)  Subject to specific appropriation made to the
169Department of Financial Services, the Chief Financial Officer
170shall purchase an annuity or make such other payment as required
171by this act upon delivery by the claimant to the Chief Financial
172Officer of an executed release and waiver on behalf of the
173claimant and his or her parents, heirs, successors, and assigns
174forever releasing the State of Florida and any agency,
175instrumentality, officer, employee, or political subdivision
176thereof, or any other entity subject to the provisions of s.
177768.28, Florida Statutes, from any and all present or future
178claims or declaratory relief the claimant or any of his or her
179parents, heirs, successors, or assigns may have against such
180enumerated entities and arising out of the factual situation in
181connection with the conviction for which compensation is
182awarded. However, declaratory action to obtain judicial
183expunction of the claimant's judicial and executive branch
184records as otherwise provided by law is not prohibited by this
185act.
186     (4)  No later than 90 days after receiving a certified
187finding from the court that a claimant is eligible for
188compensation, including a finding regarding the amount of
189compensation and a finding regarding attorney's fees and costs,
190the Department of Financial Services shall issue separate
191warrants to the named attorneys for the amounts set out in the
192court's findings regarding attorney's fees and costs.
193     (5)  There is hereby appropriated recurring general revenue
194to the Department of Financial Services in an amount sufficient
195to make payments as provided under this section. The department
196shall request the release of funds pursuant to chapter 216,
197Florida Statutes.
198     (6)  The Department of Financial Services shall purchase an
199annuity or make such other payment as required by this act
200pursuant to authority granted by the Legislature for the benefit
201of the claimant. Purchase of an annuity or other payment as
202required by this act shall be made within 90 days after the
203appropriation has become effective.
204     Section 5.  If the claimant has not executed the release
205and waiver pursuant to section 4(3), the claimant is not
206precluded from filing a claim bill in accordance with the
207current Rules of the Florida House of Representatives and the
208Rules of the Florida Senate, which shall be the sole redress of
209any dispute regarding any part of this act.
210     Section 6.  Any claimant who is compensated pursuant to
211this act shall also have tuition and fees waived for up to a
212total of 120 hours of instruction at any career center
213established pursuant to s. 1001.44, Florida Statutes, any
214community college established under part III of chapter 1004,
215Florida Statutes, or any state university. For any educational
216benefit provided, the claimant is required to meet and maintain
217the regular admission requirements of, and be registered at,
218such career center, community college, or state university and
219make satisfactory academic progress as defined by the
220educational institution in which the claimant is enrolled.
221     Section 7.  Notwithstanding any provision of s. 943.0585,
222Florida Statutes, any claimant who is compensated pursuant to
223this act shall have a public defender appointed from the circuit
224in which the claimant currently resides to provide legal
225assistance with any action required to judicially and
226administratively expunge the claimant's nonjudicial criminal
227record arising from his or her wrongful conviction. If the
228claimant does not wish to use the services of a public defender,
229the appointment of the public defender shall cease immediately.
230A government entity may not charge or impose a fee for the
231implementation of any part of this section.
232     Section 8.  The Legislature shall not be deemed by this act
233or by the payment of any claim under this act to have waived any
234defense of sovereign immunity or to have increased the limits of
235liability on behalf of the state or any person subject to the
236provisions of s. 768.28, Florida Statutes, or any other law.
237     Section 9.  Any amount awarded by this act is intended to
238provide the sole compensation for any and all present and future
239claims arising out of the factual situation in connection with
240the claimant's conviction and imprisonment. No further award for
241attorney's fees, lobbying fees, costs, or other similar expenses
242shall be made by the state.
243     Section 10.  This act shall take effect July 1, 2008.


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