CS/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 that
15proceedings are intended to be nonadversarial; providing
16duties of the Department of Financial Services and the
17Chief Financial Officer; requiring a specific request
18regarding release of funds; authorizing the Department of
19Financial Services to make specified payments; requiring
20an executed release and waiver as a condition precedent to
21tender of payment; providing procedures and requirements
22with respect to payment; providing for legislative
23redress; providing for waiver of specified tuition and
24fees for claimants compensated under the act; providing
25requirements with respect to educational benefits;
26authorizing the appointment of a public defender to assist
27with the process of expunging specified records;
28prohibiting government entities from charging fees for the
29implementation of the expunction provisions; providing
30that the Legislature is not deemed to have waived any
31defense of sovereign immunity or increased the limits of
32liability as a result of the act or the payment of a claim
33thereunder; providing legislative intent with respect to
34amounts awarded under the act; providing an effective
35date.
36
37     WHEREAS, the Legislature recognizes that no system of
38justice is impervious to human error, and
39     WHEREAS, United States v. Hasting, 461 U.S. 499 (1983),
40reads, in part, "Given the myriad safeguards provided to assure
41a fair trial, and taking into account the reality of the human
42fallibility of the participants, there can be no such thing as
43an error-free, perfect trial, and the Constitution does not
44guarantee such a trial.", and
45     WHEREAS, the Legislature acknowledges that the state's
46system of justice infrequently yields imperfect results which
47may have tragic consequences, and
48     WHEREAS, this act is based on a moral desire to acknowledge
49those who are wrongfully convicted of a felony offense,
50incarcerated as a result of that conviction, and determined to
51be actually innocent and is not a recognition of a
52constitutional right or violation, and
53     WHEREAS, the Legislature intends that any compensation made
54pursuant to this act acknowledges the fact that the claimant
55suffered significant damages unique to the claimant which
56resulted from his or her physical restraint and the deprivation
57of freedom, and
58     WHEREAS, the Legislature intends that any compensation made
59pursuant to this act be the sole compensation to be provided by
60the state for any and all present and future claims arising out
61of the factual situation in connection with the claimant's
62conviction and imprisonment, NOW, THEREFORE,
63
64Be It Enacted by the Legislature of the State of Florida:
65
66     Section 1.  Short title.--This act may be cited as the
67"Victims of Wrongful Incarceration Compensation Act."
68     Section 2.  Eligibility for compensation for wrongful
69incarceration.--
70     (1)  A person who has been wrongfully convicted of a felony
71offense and incarcerated in a prison within the Florida
72Department of Corrections as a result of that conviction is
73eligible for compensation if:
74     (a)  The conviction and sentence has been vacated,
75dismissed, or reversed by a court of competent jurisdiction;
76     (b)  No further proceedings can or will be held against the
77claimant on any facts and circumstances alleged in the
78proceedings which resulted in the conviction;
79     (c)  The claimant petitions the court for a finding of
80eligibility and amount of compensation no more than 6 months
81after the order vacating, reversing, or dismissing the sentence;
82     (d)  The claimant has no other suits pending in state or
83federal court requesting compensation arising out of the factual
84situation in connection with the conviction for which
85compensation is being sought under this act;
86     (e)  The claimant has not been found guilty of any felony
87offenses other than the conviction which was dismissed,
88reversed, or vacated that is the basis for the claim for
89wrongful incarceration and no felony offenses are currently
90pending;
91     (f)  A claim bill has not been filed relating to the
92claimant's conviction and incarceration that is the basis for
93compensation under this act; and
94     (g)  The court has made a finding by clear and convincing
95evidence that the claimant is actually innocent.
96     (2)  As used in this section, the term "actually innocent"
97means:
98     (a)  The claimant's acts did not constitute a crime;
99     (b)  The claimant did not commit the offense that resulted
100in his or her conviction and incarceration; and
101     (c)  The claimant did not aid, abet, or act as an
102accomplice or accessory to a person who committed the offense
103that resulted in his or her conviction and incarceration.
104     Section 3.  Judicial finding of eligibility and amount of
105compensation; findings as to attorney's fees.--
106     (1)  The claimant may petition the same court that issued
107the order vacating, reversing, or dismissing the claimant's
108conviction and sentence to determine whether the claimant is
109eligible for compensation pursuant to this act. Such petition
110may be filed contemporaneously with the motion to vacate,
111reverse, or dismiss, but may not be filed more than 6 months
112after the order vacating, reversing, or dismissing the
113conviction and sentence has been issued. Upon a finding that the
114claimant is eligible for compensation pursuant to this act, the
115court shall also make a finding regarding the amount of
116compensation using the factors set forth in this act.
117     (2)  In making a finding regarding the amount of
118compensation for an eligible claimant, the court shall consider
119the following factors:
120     (a)  The claimant's earning capacity;
121     (b)  The claimant's need for drug counseling, alcohol
122counseling, or both;
123     (c)  The claimant's need for mental health counseling;
124     (d)  The claimant's need for health insurance; and
125     (e)  The claimant's need for housing.
126     (3)  For determinations made in 2008, compensation may not
127exceed a rate of $50,000 per year of incarceration after
128conviction, prorated as necessary to account for portions of
129years, up to a maximum of $1,500,000. For determinations made
130after 2008, the court may adjust the annual rate of compensation
131and maximum amount of compensation for inflation using the
132Consumer Price Index starting in 2008.
133     (4)  The court shall determine whether the compensation
134shall be payable to the claimant in one single disbursement,
135through the purchase of an annuity, or through any other
136combination thereof and shall make specific findings regarding
137disbursement of funds.
138     (5)  The court shall make a separate finding regarding the
139amount of attorney's fees and reasonable costs. The court may
140not award attorney's fees that exceed a total of 25 percent of
141the court's finding regarding the amount of compensation to the
142claimant, or $1,000, whichever is greater. The finding shall
143state with specificity the fees for each of the named attorneys,
144as limited by this act. The court shall make a separate finding
145as to the amount of their costs.
146     (6)  The court shall not make any findings pursuant to this
147section regarding fault, liability, or damages.
148     (7)  Findings by the court regarding eligibility, the
149amount of compensation, and the amount of attorney's fees are
150not appealable. If the claimant chooses not to accept the
151court's findings, the claimant's sole recourse is the filing of
152a legislative claim bill in accordance with the current Rules of
153the Florida House of Representatives and the Rules of the
154Florida Senate.
155     (8)  The proceedings regarding judicial findings as
156provided for by this section are intended to be nonadversarial.
157     Section 4.  Duties of the Department of Financial Services
158and the Chief Financial Officer.--
159     (1)  No later than 10 days after receiving the court's
160findings regarding the amount of compensation, the Chief
161Financial Officer shall request release of funds pursuant to
162chapter 216, Florida Statutes, if funds have been appropriated
163in a qualified expenditure category in the General
164Appropriations Act for the purposes specified in this act. In
165addition, if any such appropriation is insufficient to satisfy
166the claim, the Chief Financial Officer shall request the balance
167in the agency's next legislative budget request or amended
168legislative budget request submission. If there is no
169appropriation for this purpose, the entirety of the claim shall
170be requested in the agency's next legislative budget request or
171amended legislative budget request submission.
172     (2)  Subject to specific appropriation and upon release of
173the requested funds by the Legislative Budget Commission, the
174Department of Financial Services shall pay the amount of
175compensation as determined by the court pursuant to section 3.
176The Department of Financial Services is directed to execute all
177necessary agreements to implement this act, including the
178purchase of an annuity, or make such other payment as determined
179by the court. Payment shall not be made until delivery by the
180claimant to the Chief Financial Officer of an executed release
181and waiver on behalf of the claimant and his or her parents,
182heirs, successors, and assigns forever releasing the State of
183Florida and any agency, instrumentality, officer, employee, or
184political subdivision thereof, or any other entity subject to
185the provisions of s. 768.28, Florida Statutes, from any and all
186present or future claims or declaratory relief the claimant or
187any of his or her parents, heirs, successors, or assigns may
188have against such enumerated entities and arising out of the
189factual situation in connection with the conviction for which
190compensation is awarded. However, declaratory action to obtain
191judicial expunction of the claimant's judicial and executive
192branch records as otherwise provided by law is not prohibited by
193this act.
194     (3)  After receiving a certified finding from the court
195that a claimant is eligible for compensation, including a
196finding regarding the amount of compensation and a finding
197regarding attorney's fees and costs, and after release of funds
198pursuant to this section, the Department of Financial Services
199shall issue separate warrants to the named attorneys for the
200amounts set out in the court's findings regarding attorney's
201fees and costs.
202     Section 5.  If the claimant has not executed the release
203and waiver pursuant to section 4(2), the claimant is not
204precluded from filing a claim bill in accordance with the
205current Rules of the Florida House of Representatives and the
206Rules of the Florida Senate, which shall be the sole redress of
207any dispute regarding any part of this act.
208     Section 6.  Any claimant who is compensated pursuant to
209this act shall also have tuition and fees waived for up to a
210total of 120 hours of instruction at any career center
211established pursuant to s. 1001.44, Florida Statutes, any
212community college established under part III of chapter 1004,
213Florida Statutes, or any state university. For any educational
214benefit provided, the claimant is required to meet and maintain
215the regular admission requirements of, and be registered at,
216such career center, community college, or state university and
217make satisfactory academic progress as defined by the
218educational institution in which the claimant is enrolled.
219     Section 7.  Notwithstanding any provision of s. 943.0585,
220Florida Statutes, any claimant who is compensated pursuant to
221this act shall have a public defender appointed from the circuit
222in which the claimant currently resides to provide legal
223assistance with any action required to judicially and
224administratively expunge the claimant's nonjudicial criminal
225record arising from his or her wrongful conviction. If the
226claimant does not wish to use the services of a public defender,
227the appointment of the public defender shall cease immediately.
228A government entity may not charge or impose a fee for the
229implementation of any part of this section.
230     Section 8.  The Legislature shall not be deemed by this act
231or by the payment of any claim under this act to have waived any
232defense of sovereign immunity or to have increased the limits of
233liability on behalf of the state or any person subject to the
234provisions of s. 768.28, Florida Statutes, or any other law.
235     Section 9.  Any amount awarded by this act is intended to
236provide the sole compensation for any and all present and future
237claims arising out of the factual situation in connection with
238the claimant's conviction and imprisonment. No further award for
239attorney's fees, lobbying fees, costs, or other similar expenses
240shall be made by the state.
241     Section 10.  This act shall take effect July 1, 2008.


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