1 | A bill to be entitled |
2 | An act relating to compensation for wrongful |
3 | incarceration; creating the "Victims of Wrongful |
4 | Incarceration Compensation Act"; providing that a person |
5 | who has been wrongfully convicted of a felony offense and |
6 | incarcerated within the Department of Corrections as a |
7 | result of that conviction may be financially compensated |
8 | if determined to be eligible; providing conditions which |
9 | constitute eligibility for compensation under the act; |
10 | defining the term "actually innocent"; providing for |
11 | judicial finding of eligibility, amount of compensation, |
12 | and disbursement of funds; providing for a separate |
13 | judicial finding regarding attorney's fees and costs; |
14 | providing criteria for judicial findings; providing duties |
15 | of the Department of Financial Services and the Chief |
16 | Financial Officer; requiring a specific request regarding |
17 | release of funds; authorizing the Department of Financial |
18 | Services to make specified payments; providing that |
19 | payment shall be made pursuant to specific appropriation |
20 | provided to the Department of Financial Services; |
21 | requiring an executed release and waiver as a condition |
22 | precedent to tender of payment; providing procedures and |
23 | requirements with respect to payment; providing for |
24 | legislative redress; providing for waiver of specified |
25 | tuition and fees for claimants compensated under the act; |
26 | providing requirements with respect to educational |
27 | benefits; authorizing the appointment of a public defender |
28 | to assist with the process of expunging specified records; |
29 | prohibiting government entities from charging fees for the |
30 | implementation of the expunction provisions; providing |
31 | that the Legislature is not deemed to have waived any |
32 | defense of sovereign immunity or increased the limits of |
33 | liability as a result of the act or the payment of a claim |
34 | thereunder; providing legislative intent with respect to |
35 | amounts awarded under the act; providing an effective |
36 | date. |
37 |
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38 | WHEREAS, the Legislature recognizes that no system of |
39 | justice is impervious to human error, and |
40 | WHEREAS, United States v. Hasting, 461 U.S. 499 (1983), |
41 | reads, in part, "Given the myriad safeguards provided to assure |
42 | a fair trial, and taking into account the reality of the human |
43 | fallibility of the participants, there can be no such thing as |
44 | an error-free, perfect trial, and the Constitution does not |
45 | guarantee such a trial.", and |
46 | WHEREAS, the Legislature acknowledges that the state's |
47 | system of justice infrequently yields imperfect results which |
48 | may have tragic consequences, and |
49 | WHEREAS, this act is based on a moral desire to acknowledge |
50 | those who are wrongfully convicted of a felony offense, |
51 | incarcerated as a result of that conviction, and determined to |
52 | be actually innocent and is not a recognition of a |
53 | constitutional right or violation, and |
54 | WHEREAS, the Legislature intends that any compensation made |
55 | pursuant to this act acknowledges the fact that the claimant |
56 | suffered significant damages unique to the claimant which |
57 | resulted from his or her physical restraint and the deprivation |
58 | of freedom, and |
59 | WHEREAS, the Legislature intends that any compensation made |
60 | pursuant to this act be the sole compensation to be provided by |
61 | the state for any and all present and future claims arising out |
62 | of the factual situation in connection with the claimant's |
63 | conviction and imprisonment, NOW, THEREFORE, |
64 |
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65 | Be It Enacted by the Legislature of the State of Florida: |
66 |
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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 |
70 | incarceration.-- |
71 | (1) A person who has been wrongfully convicted of a felony |
72 | offense and incarcerated in a prison within the Florida |
73 | Department of Corrections as a result of that conviction is |
74 | eligible for compensation if: |
75 | (a) The conviction and sentence has been vacated, |
76 | dismissed, or reversed by a court of competent jurisdiction; |
77 | (b) No further proceedings can or will be held against the |
78 | claimant on any facts and circumstances alleged in the |
79 | proceedings which resulted in the conviction; |
80 | (c) The claimant petitions the court for a finding of |
81 | eligibility and amount of compensation no more than 6 months |
82 | after the order vacating, reversing, or dismissing the sentence; |
83 | (d) The claimant has no other suits pending in state or |
84 | federal court requesting compensation arising out of the factual |
85 | situation in connection with the conviction for which |
86 | compensation is being sought under this act; |
87 | (e) The claimant has not been found guilty of any felony |
88 | offenses other than the conviction which was dismissed, |
89 | reversed, or vacated that is the basis for the claim for |
90 | wrongful incarceration and no felony offenses are currently |
91 | pending; |
92 | (f) A claim bill has not been filed relating to the |
93 | claimant's conviction and incarceration that is the basis for |
94 | compensation under this act; and |
95 | (g) The court has made a finding by clear and convincing |
96 | evidence that the claimant is actually innocent. |
97 | (2) As used in this section, the term "actually innocent" |
98 | means: |
99 | (a) The claimant's acts did not constitute a crime; |
100 | (b) The claimant did not commit the offense that resulted |
101 | in his or her conviction and incarceration; and |
102 | (c) The claimant did not aid, abet, or act as an |
103 | accomplice or accessory to a person who committed the offense |
104 | that resulted in his or her conviction and incarceration. |
105 | Section 3. Judicial finding of eligibility and amount of |
106 | compensation; findings as to attorney's fees.-- |
107 | (1) The claimant may petition the same court that issued |
108 | the order vacating, reversing, or dismissing the claimant's |
109 | conviction and sentence to determine whether the claimant is |
110 | eligible for compensation pursuant to this act. Such petition |
111 | may be filed contemporaneously with the motion to vacate, |
112 | reverse, or dismiss, but may not be filed more than 6 months |
113 | after the order vacating, reversing, or dismissing the |
114 | conviction and sentence has been issued. Upon a finding that the |
115 | claimant is eligible for compensation pursuant to this act, the |
116 | court shall also make a finding regarding the amount of |
117 | compensation using the factors set forth in this act. |
118 | (2) In making a finding regarding the amount of |
119 | compensation for an eligible claimant, the court shall consider |
120 | the following factors: |
121 | (a) The claimant's earning capacity; |
122 | (b) The claimant's need for drug counseling, alcohol |
123 | counseling, 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 |
128 | exceed a rate of $50,000 per year of incarceration after |
129 | conviction, prorated as necessary to account for portions of |
130 | years, up to a maximum of $1,500,000. For determinations made |
131 | after 2008, the court may adjust the annual rate of compensation |
132 | and maximum amount of compensation for inflation using the |
133 | Consumer Price Index starting in 2008. |
134 | (4) The court shall determine whether the compensation |
135 | shall be payable to the claimant in one single disbursement, |
136 | through the purchase of an annuity, or through any other |
137 | combination thereof and shall make specific findings regarding |
138 | disbursement of funds. |
139 | (5) The court shall make a separate finding regarding the |
140 | amount of attorney's fees and reasonable costs. The court may |
141 | not award attorney's fees that exceed a total of 25 percent of |
142 | the court's finding regarding the amount of compensation to the |
143 | claimant, or $1,000, whichever is greater. The finding shall |
144 | state with specificity the fees for each of the named attorneys, |
145 | as limited by this act. The court shall make a separate finding |
146 | as to the amount of their costs. |
147 | (6) The court shall not make any findings pursuant to this |
148 | section regarding fault, liability, or damages. |
149 | (7) Findings by the court regarding eligibility, the |
150 | amount of compensation, and the amount of attorney's fees are |
151 | not appealable. If the claimant chooses not to accept the |
152 | court's findings, the claimant's sole recourse is the filing of |
153 | a legislative claim bill in accordance with the current Rules of |
154 | the Florida House of Representatives and the Rules of the |
155 | Florida Senate. |
156 | Section 4. Duties of the Department of Financial Services |
157 | and the Chief Financial Officer.-- |
158 | (1) No later than 10 days after receiving the court's |
159 | findings regarding the amount of compensation, the Chief |
160 | Financial Officer shall request release of funds pursuant to |
161 | chapter 216, Florida Statutes. |
162 | (2) Upon release of the requested funds by the Legislative |
163 | Budget Commission, the Department of Financial Services shall |
164 | pay the amount of compensation as determined by the court |
165 | pursuant to section 3. The Department of Financial Services is |
166 | directed to execute all necessary agreements to implement this |
167 | act. |
168 | (3) Subject to specific appropriation made to the |
169 | Department of Financial Services, the Chief Financial Officer |
170 | shall purchase an annuity or make such other payment as required |
171 | by this act upon delivery by the claimant to the Chief Financial |
172 | Officer of an executed release and waiver on behalf of the |
173 | claimant and his or her parents, heirs, successors, and assigns |
174 | forever releasing the State of Florida and any agency, |
175 | instrumentality, officer, employee, or political subdivision |
176 | thereof, or any other entity subject to the provisions of s. |
177 | 768.28, Florida Statutes, from any and all present or future |
178 | claims or declaratory relief the claimant or any of his or her |
179 | parents, heirs, successors, or assigns may have against such |
180 | enumerated entities and arising out of the factual situation in |
181 | connection with the conviction for which compensation is |
182 | awarded. However, declaratory action to obtain judicial |
183 | expunction of the claimant's judicial and executive branch |
184 | records as otherwise provided by law is not prohibited by this |
185 | act. |
186 | (4) No later than 90 days after receiving a certified |
187 | finding from the court that a claimant is eligible for |
188 | compensation, including a finding regarding the amount of |
189 | compensation and a finding regarding attorney's fees and costs, |
190 | the Department of Financial Services shall issue separate |
191 | warrants to the named attorneys for the amounts set out in the |
192 | court's findings regarding attorney's fees and costs. |
193 | (5) There is hereby appropriated recurring general revenue |
194 | to the Department of Financial Services in an amount sufficient |
195 | to make payments as provided under this section. The department |
196 | shall request the release of funds pursuant to chapter 216, |
197 | Florida Statutes. |
198 | (6) The Department of Financial Services shall purchase an |
199 | annuity or make such other payment as required by this act |
200 | pursuant to authority granted by the Legislature for the benefit |
201 | of the claimant. Purchase of an annuity or other payment as |
202 | required by this act shall be made within 90 days after the |
203 | appropriation has become effective. |
204 | Section 5. If the claimant has not executed the release |
205 | and waiver pursuant to section 4(3), the claimant is not |
206 | precluded from filing a claim bill in accordance with the |
207 | current Rules of the Florida House of Representatives and the |
208 | Rules of the Florida Senate, which shall be the sole redress of |
209 | any dispute regarding any part of this act. |
210 | Section 6. Any claimant who is compensated pursuant to |
211 | this act shall also have tuition and fees waived for up to a |
212 | total of 120 hours of instruction at any career center |
213 | established pursuant to s. 1001.44, Florida Statutes, any |
214 | community college established under part III of chapter 1004, |
215 | Florida Statutes, or any state university. For any educational |
216 | benefit provided, the claimant is required to meet and maintain |
217 | the regular admission requirements of, and be registered at, |
218 | such career center, community college, or state university and |
219 | make satisfactory academic progress as defined by the |
220 | educational institution in which the claimant is enrolled. |
221 | Section 7. Notwithstanding any provision of s. 943.0585, |
222 | Florida Statutes, any claimant who is compensated pursuant to |
223 | this act shall have a public defender appointed from the circuit |
224 | in which the claimant currently resides to provide legal |
225 | assistance with any action required to judicially and |
226 | administratively expunge the claimant's nonjudicial criminal |
227 | record arising from his or her wrongful conviction. If the |
228 | claimant does not wish to use the services of a public defender, |
229 | the appointment of the public defender shall cease immediately. |
230 | A government entity may not charge or impose a fee for the |
231 | implementation of any part of this section. |
232 | Section 8. The Legislature shall not be deemed by this act |
233 | or by the payment of any claim under this act to have waived any |
234 | defense of sovereign immunity or to have increased the limits of |
235 | liability on behalf of the state or any person subject to the |
236 | provisions of s. 768.28, Florida Statutes, or any other law. |
237 | Section 9. Any amount awarded by this act is intended to |
238 | provide the sole compensation for any and all present and future |
239 | claims arising out of the factual situation in connection with |
240 | the claimant's conviction and imprisonment. No further award for |
241 | attorney's fees, lobbying fees, costs, or other similar expenses |
242 | shall be made by the state. |
243 | Section 10. This act shall take effect July 1, 2008. |