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The Committee on Judiciary (Diaz de la Portilla) recommended the

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following substitute for amendment (541160):

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     Senate Amendment (with title amendment)

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     Delete everything after the enacting clause

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and insert:

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     Section 1. Short title.--Sections 1-7 of this act may be

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cited as the "Victims of Wrongful Incarceration Compensation

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Act."

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     Section 2. Definitions.--As used in sections 1-7 of this

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act, the term:

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(1) "Act" means the "Victims of Wrongful Incarceration

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Compensation Act."

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(2) "Department" means the Department of Legal Affairs.

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(3) "Wrongfully incarcerated person" means a person whose

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felony conviction and sentence of incarceration have been vacated

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by a court of competent jurisdiction, and with respect to whom

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the court has made a finding by clear and convincing evidence

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that the person did not commit the offense resulting in the

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conviction and incarceration and that the person did not aid,

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abet, or act as an accomplice or accessory to a person who

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committed the offense.

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Section 3. Finding of wrongful incarceration.--

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(1) Whenever a court, based on exonerating evidence, enters

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an order vacating a conviction and sentence, the court shall

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determine whether the person is a wrongfully incarcerated person.

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If the court fails to determine whether a person is a wrongfully

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incarcerated person, the person must file a petition with the

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court within 30 days of the entry of the order vacating a

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conviction and sentence for a determination whether the person is

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a wrongfully incarcerated person in order to apply for

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compensation under the act.

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(2) Notwithstanding subsection (1), a person whose

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conviction and sentence were vacated before July 1, 2008, and who

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has not subsequently been convicted of the same offense, or any

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lesser included offense, arising out of the same facts, may

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petition the court for a determination of whether the person is a

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wrongfully incarcerated person if the prosecuting authority is

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given reasonable notice in writing that the person intends to

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petition the court for such a finding. The person must file the

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petition with the court by July 1, 2010, for a determination

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whether the person is a wrongfully incarcerated person in order

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to apply for compensation under the act.

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(3) In determining whether a person is a wrongfully

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incarcerated person, the court must set forth in detail the

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evidence upon which the finding is based.

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Section 4. Eligibility for compensation for wrongful

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incarceration.--A wrongfully incarcerated person is not eligible

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for compensation under the act if:

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(1)     Before the person's wrongful conviction and

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incarceration, the person was convicted of, or pled guilty or

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nolo contendere to, regardless of adjudication, any felony

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offense, or a crime committed in another jurisdiction the

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elements of which would constitute a felony in this state, or a

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crime committed against the United States which is designated a

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felony, excluding any delinquency disposition;

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(2)     During the person's wrongful incarceration, the person

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was also serving a concurrent sentence for another crime for

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which the person was not wrongfully convicted; or

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     (3)     The person initiates his or her application for

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compensation as required by section 6 of this act more than 2

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years after a court of competent jurisdiction determines the

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person is a wrongfully incarcerated person.

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Notwithstanding the conditions set forth in subsection (1), if a

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wrongfully incarcerated person has only one prior felony

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conviction, excluding forcible felonies as defined in s. 766.08,

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and the felony conviction occurred at least 5 years prior to the

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person's wrongful incarceration, the person shall be eligible for

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compensation under the act.

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     Section 5. Compensation for wrongful incarceration.--

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     (1) Except as otherwise provided in the act and subject to

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the limitations and procedures prescribed in section 6 of this

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act, a person who is found to be a wrongfully incarcerated person

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is entitled to:

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     (a) Monetary compensation equal to 125 percent of the

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Florida per capita personal income as reported by the Office of

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Economic and Demographic Research for the year in which the court

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vacates the conviction and sentence multiplied by the number of

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years of wrongful incarceration, prorated as necessary to account

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for a portion of a year;

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     (b) A waiver of tuition and fees for up to 120 hours of

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instruction at any career center established under s. 1001.44,

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Florida Statutes, any community college established under part

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III of chapter 1004, Florida Statutes, or any state university,

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if the wrongfully incarcerated person meets and maintains the

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regular admission requirements of such career center, community

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college, or state university; remains registered at such

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educational institution; and makes satisfactory academic progress

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as defined by the educational institution in which the claimant

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is enrolled;

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     (c) The amount of any fine, penalty or court costs imposed

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and paid by the wrongfully incarcerated person; and

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     (d)     The amount of any reasonable attorney fees and expenses

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incurred and paid by the wrongfully incarcerated person in

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connection with all criminal proceedings and appeals regarding

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the wrongful conviction, to be calculated by the department based

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upon the supporting documentation submitted as specified in

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section 6.

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The total compensation awarded under paragraphs (a),(c), and (d)

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may not exceed $2,000,000. No further award for attorney's fees,

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lobbying fees, costs, or other similar expenses shall be made by

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the state.

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     (2)     In calculating monetary compensation under paragraph

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(1)(a), a wrongfully incarcerated person who is placed on parole

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or community supervision while serving the sentence resulting

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from the wrongful conviction and commits anything less than a

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felony law violation that results in revocation of the parole or

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community supervision shall be eligible for compensation for the

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total number of years incarcerated. A wrongfully incarcerated

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person who commits a felony law violation that results in

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revocation of the parole or community supervision shall be

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ineligible for any compensation under subsection (1).

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     Section 6. Application for compensation for wrongful

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incarceration.--

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     (1) A wrongfully incarcerated person seeking compensation

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under the act must apply to the department. No estate of, or

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personal representative for, a decedent is entitled to apply, on

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behalf of the decedent, for compensation for wrongful

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incarceration.

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(2) The application must include:

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     (a) A certified copy of the order vacating the conviction

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and sentence and the order finding the claimant to be a

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wrongfully incarcerated person;

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     (b) Certified copies of the original judgment and sentence;

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     (c) Documentation demonstrating the length of the sentence

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served, including documentation from the Department of

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Corrections regarding the person's admission into and release

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from the custody of the Department of Corrections;

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     (d) Positive proof of identification, including

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fingerprints and a current form of photo identification,

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demonstrating that the person seeking compensation is the same

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individual who was wrongfully incarcerated;

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     (e) All information necessary for the department to obtain

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through the Department of Law Enforcement the person's criminal

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history or criminal record;

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     (f) All supporting documentation of any fine, penalty, or

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court costs imposed and paid by the wrongfully incarcerated

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person as described in section 5, paragraph (1)(c); and

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     (g)     All supporting documentation of any reasonable

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attorney's fees and expenses as described in section 5, paragraph

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(1)(d).

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     (3) Upon receipt of an application, the department shall

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examine the application and notify the claimant within 30

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calendar days of any errors or omissions, and request any

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additional information relevant to the review of the application.

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The department may not deny an application for failure of the

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claimant to correct an error or omission or supply additional

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information unless the department timely notified the claimant of

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such errors or omissions or requested the additional information

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within the 30-day period specified in this subsection. The

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department shall process and review each completed application

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within 90 calendar days. Once the department determines whether a

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claim for compensation meets the requirements of the act, the

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department shall notify the claimant within 5 business days of

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that determination.

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     (4) Within 15 calendar days after issuing notice to the

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claimant that his or her claim satisfies all of the requirements

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under the act, the department shall notify the Chief Financial

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Officer to draw warrants from the General Revenue Fund or another

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source designated by the Legislature in law payable to the

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claimant based on the total amount determined by the department

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under section 5 of this act.

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(5)(a) If the wrongfully incarcerated person was

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incarcerated for a period of time equal to or greater than 10

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years, the compensation awarded under section 5 of this act shall

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be distributed in an initial lump sum equal to 20 percent of the

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total compensation awarded, with the remaining 80 percent

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distributed in annual equal installments over a 10-year period.

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The Chief Financial Officer shall issue the 20 percent lump-sum

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payment within 30 days after receiving notice from the department

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as required in subsection (4). The Chief Financial Officer shall

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issue the first installment payment on the one-year anniversary

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of the lump-sum payment, with subsequent installments issued in

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subsequent years on the anniversary date of the lump-sum payment.

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(b) If the wrongfully incarcerated person was incarcerated

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for a period of time less than 10 years, the compensation awarded

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under section 5 of this act shall be distributed in equal annual

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installments over the number of years the wrongfully incarcerated

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person was incarcerated, not including a portion of a year. The

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Chief Financial Officer shall issue the first installment within

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30 days after receiving notice from the department as required in

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subsection (4), with subsequent installments issued in subsequent

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years on the anniversary date of the first installment payment.

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     (6) Before receiving the first warrant, the claimant must

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sign a release and waiver on behalf of the claimant and his or

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her heirs, successors, and assigns, forever releasing the state

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or any agency, instrumentality, or any political subdivision

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thereof, or any other entity subject to the provisions of s.

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768.28, Florida Statutes, from all present or future claims that

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the claimant or his or her heirs, successors, or assigns may have

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against such entities arising out of the facts in connection with

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the wrongful conviction for which compensation is being sought

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under the act. The release and waiver must be provided to the

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department prior to the issuance of the first warrant of payment

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by the Chief Financial Officer.

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     (7)(a) A wrongfully incarcerated person may not submit an

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application for compensation under the act if the person has a

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lawsuit pending in state or federal court requesting compensation

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arising out of the facts in connection with the claimant's

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conviction and incarceration.

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(b) A wrongfully incarcerated person may not submit an

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application for compensation under the act if the person is the

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subject of a claim bill pending for claims arising out of the

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facts in connection with the claimant's conviction and

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incarceration.

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     (c)     Once an application is filed under the act, a

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wrongfully incarcerated person may not pursue recovery under a

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claim bill until the final disposition of the application.

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     (d)     Any amount awarded under the act is intended to provide

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the sole compensation for any and all present and future claims

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arising out of the facts in connection with the claimant's

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conviction and incarceration. Upon notification by the department

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that an application meets the requirements of the act as required

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in subsection (3), a wrongfully incarcerated person may not

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recover under a claim bill.

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     (e)     Any compensation awarded under a claim bill shall be

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the sole redress for claims arising out of the facts in

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connection with the claimant's conviction and incarceration, and

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upon any award of compensation to a wrongfully incarcerated

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person under a claim bill, the person may not receive

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compensation under the act.

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     (8)     Any payment made under the act does not constitute a

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waiver of any defense of sovereign immunity or an increase in the

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limits of liability on behalf of the state or any person subject

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to the provisions of s. 768.28, Florida Statutes, or other law.

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     (9)     Payments under the act shall immediately cease:

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(a)     If the wrongfully incarcerated person is convicted of,

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or pleads guilty or nolo contendere to, regardless of

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adjudication, any felony offense, or a crime committed in another

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jurisdiction the elements of which would constitute a felony in

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this state, or a crime committed against the United States which

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is designated a felony; or

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(b)     Upon the death of the wrongfully incarcerated person.

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The estate of, the personal representative for, and the heirs,

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successors, and assigns of the wrongfully incarcerated person

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shall have no right to receive future payments the person was

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entitled to receive under the act.

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     (10)     Upon any conviction of a felony in this state or

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another jurisdiction after submission of an application under

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this section, a wrongfully incarcerated person must immediately

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report the felony conviction to the department. The department,

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in conjunction with the Chief Financial Officer, shall determine

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annually, before a warrant is issued for that year, whether a

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wrongfully incarcerated person remains eligible for compensation

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under the act by reviewing state and national criminal history

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databases, as well as vital statistic records of the state.

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     Section 7. Continuing appropriation.--Beginning in fiscal

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year 2008-2009 and continuing each fiscal year thereafter, a sum

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sufficient to pay the approved payments under the act is

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appropriated from the General Revenue Fund.

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     Section 8.  Subsection (17) is added to Section 775.15,

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Florida Statutes, to read:

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     775.15  Time limitations; general time limitations;

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exceptions.--

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      (17) Notwithstanding any statute of limitation applicable

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under this section or the speedy trial rule, the state attorney

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may, upon vacation of a person's conviction and sentence based on

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exonerating evidence, pursue prosecution of any other offense,

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arising from the facts that formed the basis of the conviction,

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the charges for which the state has filed a nolle prosequi, or

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has filed a nolle prosequi as a condition of the person's entry

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of a plea of guilty or nolo contendere on the offense for which

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he or she was subsequently exonerated.

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     Section 9. To the extent that it is in conflict with the

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revisions made by this act to s. 775.15, Florida Statutes,

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Florida Rule of Criminal Procedure 3.191 is hereby repealed.

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     Section 10. If any provision of this act or its application

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to any person or circumstance is held invalid, the invalidity

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does not affect other provisions or applications of the act which

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can be given effect without the invalid provision or application,

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and to this end the provisions of the act are severable.

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     Section 11.  This act shall take effect July 1, 2008.

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================ T I T L E  A M E N D M E N T ================

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And the title is amended as follows:

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     Delete everything before the enacting clause

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and insert:

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A bill to be entitled

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An act relating to wrongful incarceration; providing a

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short title; creating the Victims of Wrongful

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Incarceration Compensation Act; providing definitions;

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requiring a court to determine  whether a person is a

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wrongfully incarcerated person; providing for a petition

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for determination of wrongful incarceration; providing

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exceptions and limitations regarding the eligibility of a

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wrongfully incarcerated person for compensation; providing

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for monetary compensation for certain wrongfully

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incarcerated persons; providing for recovery of reasonable

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attorney's fees and other costs with limitations for

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certain wrongfully incarcerated persons; providing for

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tuition waivers for wrongfully incarcerated persons who

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meet certain requirements; requiring that a wrongfully

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incarcerated person seeking compensation apply to the

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Department of Legal Affairs; providing application

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requirements and a deadline; requiring that the Department

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of Legal Affairs review each application and notify the

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claimant of any omissions or errors, or the need for

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additional information, within a specified period;

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requiring that the Department of Legal Affairs process and

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review each completed application within a specified

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period; requiring that the Department of Legal Affairs

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notify the claimant if he or she qualifies for

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compensation within a specified period; requiring that any

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monetary compensation be paid within a specified period by

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specified means; prescribing conditions under which

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compensation payments cease; requiring a wrongfully

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incarcerated person to report any subsequent felony

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convictions; specifying that the estate, personal

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representative of, or heirs of the wrongfully incarcerated

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person are not entitled to future payments; prescribing

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conditions under which an application may not be filed and

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compensation may not be awarded; requiring a claimant to

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sign a release before receiving such compensation;

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providing for a continuing appropriation from the General

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Revenue Fund; providing that an award of compensation does

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not constitute a waiver of sovereign immunity by the

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state; authorizing prosecution of certain claims arising

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from the facts associated with a wrongful conviction;

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providing for severability; providing an effective date.

3/25/2008  12:16:00 PM     JU.JU.05621