1

The Committee on Judiciary (Webster) recommended the following

2

amendment:

3

4

     Senate Amendment (with title amendment)

5

     Delete everything after the enacting clause

6

and insert:

7

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

8

cited as the "Victims of Wrongful Incarceration Compensation

9

Act."

10

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

11

act, the term:

12

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

13

Compensation Act."

14

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

15

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

16

felony conviction and sentence of incarceration have been

17

vacated by a court of competent jurisdiction, and with respect

18

to whom the court has made a finding by clear and convincing

19

evidence that the person did not commit the offense resulting in

20

the conviction and incarceration and that the person did not

21

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

22

committed the offense.

23

Section 3. Finding of wrongful incarceration.--

24

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

25

enters an order vacating a conviction and sentence, the court

26

shall determine whether the person is a wrongfully incarcerated

27

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

28

wrongfully incarcerated person, the person must file a petition

29

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

30

a conviction and sentence for a determination whether the person

31

is a wrongfully incarcerated person in order to apply for

32

compensation under the act.

33

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

34

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

35

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

36

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

37

petition the court for a determination of whether the person is

38

a wrongfully incarcerated person if the prosecuting authority is

39

given reasonable notice in writing that the person intends to

40

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

41

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

42

whether the person is a wrongfully incarcerated person in order

43

to apply for compensation under the act.

44

(3) In determining whether a person is a wrongfully

45

incarcerated person, the court must set forth in detail the

46

evidence upon which the finding is based.

47

Section 4. Eligibility for compensation for wrongful

48

incarceration.--A wrongfully incarcerated person is not eligible

49

for compensation under the act if:

50

(1)     Before the person's wrongful conviction and

51

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

52

nolo contendere to, regardless of adjudication, any felony

53

offense, or a crime committed in another jurisdiction the

54

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

55

crime committed against the United States which is designated a

56

felony, excluding any delinquency disposition;

57

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

58

was convicted of, or pled guilty or nolo contendere to,

59

regardless of adjudication, any felony offense;

60

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

61

was also serving a concurrent sentence for another crime for

62

which the person was not wrongfully convicted; or

63

     (4)     The person initiates his or her application for

64

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

65

years after a court of competent jurisdiction determines the

66

person is a wrongfully incarcerated person.

67

     Section 5. Compensation for wrongful incarceration.--

68

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

69

the limitations and procedures prescribed in section 6 of this

70

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

71

person is entitled to:

72

     (a) Monetary compensation equal to the Florida per capita

73

personal income as reported by the Office of Economic and

74

Demographic Research for the year in which the court vacates the

75

conviction and sentence multiplied by the number of years of

76

wrongful incarceration, prorated as necessary to account for a

77

portion of a year;

78

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

79

instruction at any career center established under s. 1001.44,

80

Florida Statutes, any community college established under part

81

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

82

if the wrongfully incarcerated person meets and maintains the

83

regular admission requirements of such career center, community

84

college, or state university; remains registered at such

85

educational institution; and makes satisfactory academic

86

progress as defined by the educational institution in which the

87

claimant is enrolled;

88

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

89

and paid by the wrongfully incarcerated person; and

90

     (d)     The amount of any reasonable attorney fees and

91

expenses incurred and paid by the wrongfully incarcerated person

92

in connection with all criminal proceedings and appeals

93

regarding the wrongful conviction, to be calculated by the

94

department based upon the supporting documentation submitted as

95

specified in section 6.

96

97

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

98

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

99

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

100

the state.

101

     (2)     In calculating monetary compensation under paragraph

102

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

103

or community supervision while serving the sentence resulting

104

from the wrongful conviction and commits anything less than a

105

felony law violation that results in revocation of the parole or

106

community supervision shall be eligible for compensation for the

107

total number of years incarcerated. A wrongfully incarcerated

108

person who commits a felony law violation that results in

109

revocation of the parole or community supervision shall be

110

ineligible for any compensation under subsection (1).

111

     Section 6. Application for compensation for wrongful

112

incarceration.--

113

     (1) A wrongfully incarcerated person seeking compensation

114

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

115

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

116

behalf of the decedent, for compensation for wrongful

117

incarceration.

118

(2) The application must include:

119

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

120

and sentence and the order finding the claimant to be a

121

wrongfully incarcerated person;

122

     (b) Certified copies of the original judgment and

123

sentence;

124

     (c) Documentation demonstrating the length of the sentence

125

served, including documentation from the Department of

126

Corrections regarding the person's admission into and release

127

from the custody of the Department of Corrections;

128

     (d) Positive proof of identification, including

129

fingerprints and a current form of photo identification,

130

demonstrating that the person seeking compensation is the same

131

individual who was wrongfully incarcerated;

132

     (e) All information necessary for the department to obtain

133

through the Department of Law Enforcement the person's criminal

134

history or criminal record;

135

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

136

court costs imposed and paid by the wrongfully incarcerated

137

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

138

     (g)     All supporting documentation of any reasonable

139

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

140

paragraph (1)(d).

141

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

142

examine the application and notify the claimant within 30

143

calendar days of any errors or omissions, and request any

144

additional information relevant to the review of the

145

application. The department may not deny an application for

146

failure of the claimant to correct an error or omission or

147

supply additional information unless the department timely

148

notified the claimant of such errors or omissions or requested

149

the additional information within the 30-day period specified in

150

this subsection. The department shall process and review each

151

completed application within 90 calendar days. Once the

152

department determines whether a claim for compensation meets the

153

requirements of the act, the department shall notify the

154

claimant within 5 business days of that determination.

155

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

156

claimant that his or her claim satisfies all of the requirements

157

under the act, the department shall notify the Chief Financial

158

Officer to draw warrants from the General Revenue Fund or

159

another source designated by the Legislature in law payable to

160

the claimant based on the total amount determined by the

161

department under section 5 of this act.

162

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

163

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

164

years, the compensation awarded under section 5 of this act

165

shall be distributed in an initial lump sum equal to 20 percent

166

of the total compensation awarded, with the remaining 80 percent

167

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

168

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

169

payment within 30 days after receiving notice from the

170

department as required in subsection (4). The Chief Financial

171

Officer shall issue the first installment payment on the one-

172

year anniversary of the lump-sum payment, with subsequent

173

installments issued in subsequent years on the anniversary date

174

of the lump-sum payment.

175

(b) If the wrongfully incarcerated person was incarcerated

176

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

177

awarded under section 5 of this act shall be distributed in

178

equal annual installments over the number of years the

179

wrongfully incarcerated person was incarcerated, not including a

180

portion of a year. The Chief Financial Officer shall issue the

181

first installment within 30 days after receiving notice from the

182

department as required in subsection (4), with subsequent

183

installments issued in subsequent years on the anniversary date

184

of the first installment payment.

185

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

186

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

187

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

188

or any agency, instrumentality, or any political subdivision

189

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

190

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

191

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

192

have against such entities arising out of the facts in

193

connection with the wrongful conviction for which compensation

194

is being sought under the act. The release and waiver must be

195

provided to the department prior to the issuance of the first

196

warrant of payment by the Chief Financial Officer.

197

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

198

application for compensation under the act if the person has a

199

lawsuit pending in state or federal court requesting

200

compensation arising out of the facts in connection with the

201

claimant's conviction and incarceration.

202

(b) A wrongfully incarcerated person may not submit an

203

application for compensation under the act if the person is the

204

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

205

facts in connection with the claimant's conviction and

206

incarceration.

207

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

208

wrongfully incarcerated person may not pursue recovery under a

209

claim bill until the final disposition of the application.

210

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

211

provide the sole compensation for any and all present and future

212

claims arising out of the facts in connection with the

213

claimant's conviction and incarceration. Upon notification by

214

the department that an application meets the requirements of the

215

act as required in subsection (3), a wrongfully incarcerated

216

person may not recover under a claim bill.

217

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

218

the sole redress for claims arising out of the facts in

219

connection with the claimant's conviction and incarceration, and

220

upon any award of compensation to a wrongfully incarcerated

221

person under a claim bill, the person may not receive

222

compensation under the act.

223

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

224

waiver of any defense of sovereign immunity or an increase in

225

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

226

subject to the provisions of s. 768.28, Florida Statutes, or

227

other law.

228

     (9)     Payments under the act shall immediately cease:

229

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

230

or pleads guilty or nolo contendere to, regardless of

231

adjudication, any felony offense, or a crime committed in

232

another jurisdiction the elements of which would constitute a

233

felony in this state, or a crime committed against the United

234

States which is designated a felony; or

235

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

236

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

237

successors, and assigns of the wrongfully incarcerated person

238

shall have no right to receive future payments the person was

239

entitled to receive under the act.

240

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

241

another jurisdiction after submission of an application under

242

this section, a wrongfully incarcerated person must immediately

243

report the felony conviction to the department. The department,

244

in conjunction with the Chief Financial Officer, shall determine

245

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

246

wrongfully incarcerated person remains eligible for compensation

247

under the act by reviewing state and national criminal history

248

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

249

     Section 7. Continuing appropriation.--Beginning in fiscal

250

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

251

sufficient to pay the approved payments under the act is

252

appropriated from the General Revenue Fund.

253

Section 8. If any provision of this act or its application

254

to any person or circumstance is held invalid, the invalidity

255

does not affect other provisions or applications of the act

256

which can be given effect without the invalid provision or

257

application, and to this end the provisions of the act are

258

severable.

259

     Section 9.  This act shall take effect July 1, 2008.

260

261

262

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

263

And the title is amended as follows:

264

     Delete everything before the enacting clause

265

and insert:

266

A bill to be entitled

267

An act relating to compensation for wrongful

268

incarceration; providing a short title; creating the

269

Victims of Wrongful Incarceration Compensation Act;

270

providing definitions; requiring a court to determine  

271

whether a person is a wrongfully incarcerated person;

272

providing for a petition for determination of wrongful

273

incarceration; providing exceptions and limitations

274

regarding the eligibility of a wrongfully incarcerated

275

person for compensation; providing for monetary

276

compensation for certain wrongfully incarcerated persons;

277

providing for recovery of reasonable attorney's fees and

278

other costs with limitations for certain wrongfully

279

incarcerated persons; providing for tuition waivers for

280

wrongfully incarcerated persons who meet certain

281

requirements; requiring that a wrongfully incarcerated

282

person seeking compensation apply to the Department of

283

Legal Affairs; providing application requirements and a

284

deadline; requiring that the Department of Legal Affairs

285

review each application and notify the claimant of any

286

omissions or errors, or the need for additional

287

information, within a specified period; requiring that the

288

Department of Legal Affairs process and review each

289

completed application within a specified period; requiring

290

that the Department of Legal Affairs notify the claimant

291

if he or she qualifies for compensation within a specified

292

period; requiring that any monetary compensation be paid

293

within a specified period by specified means; prescribing

294

conditions under which compensation payments cease;

295

requiring a wrongfully incarcerated person to report any

296

subsequent felony convictions; specifying that the estate,

297

personal representative of, or heirs of the wrongfully

298

incarcerated person are not entitled to future payments;

299

prescribing conditions under which an application may not

300

be filed and compensation may not be awarded; requiring a

301

claimant to sign a release before receiving such

302

compensation; providing for a continuing appropriation

303

from the General Revenue Fund; providing that an award of

304

compensation does not constitute a waiver of sovereign

305

immunity by the state; providing for severability;

306

providing an effective date.

3/17/2008  1:54:00 PM     JU.JU.04984