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; defining the term

5

"wrongfully incarcerated person"; requiring that courts

6

determine whether certain persons are wrongfully

7

incarcerated persons upon petition by such persons or

8

their attorneys; providing requirements for such petition;

9

providing for monetary compensation for certain wrongfully

10

incarcerated persons; providing for tuition waivers for

11

wrongfully incarcerated persons who meet certain

12

requirements; requiring that the criminal record of a

13

wrongfully incarcerated person be expunged; providing

14

exceptions and limitations regarding the eligibility of a

15

wrongfully incarcerated person for compensation or

16

benefits; requiring that a wrongfully incarcerated person

17

seeking compensation or benefits as provided by the act

18

apply with the Chief Financial Officer for such

19

compensation or benefits; providing requirements and a

20

deadline for such application; requiring that the Chief

21

Financial Officer review each application and notify the

22

claimant of any omissions or errors, or the need for

23

additional information, within a specified period;

24

requiring that the Chief Financial Officer process and

25

review each completed application within a specified

26

period; requiring that the Chief Financial Officer notify

27

the claimant if he or she qualifies for benefits within a

28

specified period; requiring that any compensation be paid

29

within a specified period by specified means; requiring

30

that a claimant receiving compensation sign a release

31

before receiving such compensation; providing the terms of

32

such release; authorizing the Department of Financial

33

Services to adopt rules; providing for severability;

34

providing an effective date.

35

36

Be It Enacted by the Legislature of the State of Florida:

37

38

     Section 1. Short title.--Sections 1-5 of this act may be

39

cited as the "Victims of Wrongful Incarceration Compensation

40

Act."

41

     Section 2. Definition; finding of wrongful incarceration.--

42

     (1) As used in sections 1-5 of this act, the term

43

"wrongfully incarcerated person" means a person whose felony

44

conviction and sentence have been vacated by a court of competent

45

jurisdiction:

46

     (a) Upon a finding by clear and convincing evidence that

47

the person did not commit the offense resulting in the conviction

48

and incarceration and that the person did not aid, abet, or act

49

as an accomplice or accessory to a person who committed the

50

offense; or

51

     (b) Due to the discovery of exonerating evidence that is so

52

probative of innocence that the court determines that a jury

53

likely would have found the defendant not guilty had it known of

54

the exonerating evidence, and the person is, in fact,

55

subsequently acquitted or, due to the exonerating evidence, no

56

further criminal proceedings can or will be initiated by the

57

prosecutorial authority.

58

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

59

an order vacating a conviction and sentence, upon petition by the

60

defendant or the defendant's attorney, the court must determine

61

whether the defendant was wrongfully convicted and set forth in

62

detail the evidence on which that finding is based. A court must

63

find that a defendant was wrongfully convicted if there is clear

64

and convincing evidence that the person did not commit the

65

offense that resulted in the conviction and incarceration and

66

that the person did not aid, abet, or act as an accomplice to a

67

person who committed the offense.

68

     (3) A person whose sentence and conviction have been

69

vacated and who has not been subsequently convicted of the same

70

offense, or any lesser included offense, for which the previous

71

sentence and conviction were vacated before October 1, 2008, may

72

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

73

wrongfully incarcerated person if the prosecuting authority is

74

given reasonable notice in writing that the person intends to

75

petition the court for such a finding.

76

     Section 3. Compensation for wrongful incarceration.--

77

     (1) Except as otherwise provided in this section and

78

subject to the limitations and procedures prescribed in section 4

79

of this act, a person who is found to be a wrongfully

80

incarcerated person is entitled to:

81

     (a) Monetary compensation for wrongful incarceration, which

82

shall be calculated at a rate of $100,000 for each year of

83

wrongful incarceration, prorated as necessary to account for

84

portions of years;

85

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

86

instruction at any career center established under s. 1001.44,

87

Florida Statutes, any community college established under part

88

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

89

if the person found to have been wrongfully incarcerated meets

90

and maintains the regular admission requirements of such career

91

center, community college, or state university; remains

92

registered at such educational institution; and makes

93

satisfactory academic progress as defined by the educational

94

institution in which the claimant is enrolled; and

95

     (c) Notwithstanding any provision to the contrary in s.

96

943.0585, Florida Statutes, immediate administrative and judicial

97

expunction of the person's criminal record resulting from his or

98

her wrongful arrest, wrongful conviction, and wrongful

99

incarceration.

100

     (2) A wrongfully incarcerated person is not eligible for

101

compensation or benefits as listed in this section if:

102

     (a) The person initiates his or her application to the

103

Department of Financial Services more than 2 years after a court

104

of competent jurisdiction determines the person's wrongful

105

incarceration; or

106

     (b) Before his or her wrongful conviction and

107

incarceration, the person has previously been designated as a

108

violent career criminal pursuant to s. 775.084, Florida Statutes

109

     Section 4. Application for compensation or benefits for

110

wrongful incarceration..--

111

     (1) A wrongfully incarcerated person seeking compensation

112

or benefits as described in section 3 of this act must apply to

113

the Chief Financial Officer for such compensation or benefits.

114

The application must include:

115

     (a) A certified copy of the order finding the claimant to

116

be a wrongfully incarcerated person;

117

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

118

     (c) Documentation demonstrating the length of the sentence

119

served, including documentation obtained from the Department of

120

Corrections regarding the person's admission into and release

121

from the department's custody;

122

     (d) Positive proof of identification, including

123

fingerprints and a current form of photo identification,

124

demonstrating that the person seeking compensation is the same

125

individual who was wrongfully incarcerated;

126

     (e) All documentation maintained by the Department of Law

127

Enforcement related to the person's criminal history or criminal

128

record; and

129

     (f) Any other documentation, evidence, or information

130

required by rules adopted by the Department of Financial Services

131

on behalf of the Chief Financial Officer.

132

     (2) Upon receipt of an application for compensation, the

133

Chief Financial Officer shall examine the application and notify

134

the claimant within 30 calendar days of any errors or omissions,

135

and request any additional information relevant to the review of

136

the application. The Chief Financial Officer may not deny an

137

application for failure of the claimant to correct an error or

138

omission or supply additional information unless the Chief

139

Financial Officer timely notified the claimant of such errors or

140

omissions or requested such additional information within the 30-

141

day period specified in this subsection. The Department of

142

Financial Services shall process and review each completed

143

application within 90 calendar days. If the department determines

144

that the claim for compensation meets the requirements of

145

sections 1 through 5 of this act, the department shall notify the

146

claimant within 5 business days of that determination.

147

     (3) Within 30 calendar days after issuing notice to the

148

claimant, the Chief Financial Officer shall draw and issue a

149

state warrant for the entire amount of the claim from the General

150

Revenue Fund or any other available state funds.

151

     (4) Before receiving the state warrant, the claimant must

152

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

153

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

154

or any agency, instrumentality, or any political subdivision

155

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

156

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

157

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

158

against such entities arising out of the factual situation in

159

connection with the conviction for which compensation is being

160

sought under sections 1 through 5 of this act.

161

     (5) Notwithstanding any provision of s. 943.0585, Florida

162

Statutes, the Department of Legal Affairs and the Department of

163

Law Enforcement shall, upon notification by the Department of

164

Financial Services that a claimant is eligible for compensation,

165

immediately take all action necessary to judicially and

166

administratively expunge the claimant's criminal record arising

167

from his or her wrongful arrest, wrongful conviction, and

168

wrongful incarceration. All fees for this process shall be

169

waived.

170

     Section 5. The Department of Financial Services, on behalf

171

of the Chief Financial Officer, may adopt rules regarding the

172

forms and procedures related to applications for compensation

173

under the Victims of Wrongful Incarceration Compensation Act.

174

     Section 6. If any provision of this act or its application

175

to any person or circumstance is held invalid, the invalidity

176

does not affect other provisions or applications of the act which

177

can be given effect without the invalid provision or application,

178

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

179

     Section 7.  This act shall take effect October 1, 2008.