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A bill to be entitled

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An act relating to compensation for wrongful

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incarceration; creating the "Victims of Wrongful

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Incarceration Compensation Act"; providing definitions;

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providing a limited method by which a person may seek the

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status of a wrongfully incarcerated person who is eligible

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and entitled to compensation under the act; requiring a

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sworn petition by the claimant; requiring the petitioner

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to show verifiable and substantial evidence of actual

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innocence; requiring the original prosecuting authority to

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respond to the petition; providing for a determination on

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the pleadings whether claimant is ineligible for

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compensation based on past criminal history; providing for

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a contested factual determination before an administrative

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law judge if necessary; requiring the original sentencing

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court to determine whether a person is a wrongfully

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incarcerated person based upon clear and convincing

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evidence; providing exceptions and limitations regarding

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the eligibility of a wrongfully incarcerated person for

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compensation; requiring the original sentencing court to

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include a finding of eligibility for compensation in its

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order; granting rulemaking authority to the Department of

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Legal Affairs; requiring that a wrongfully incarcerated

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person seeking compensation apply to the Department of

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Legal Affairs; providing application requirements and a

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deadline; requiring that the Department of Legal Affairs

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review each application and notify the claimant of any

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omissions or errors, or the need for additional

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information, within a specified period; requiring that the

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Department of Legal Affairs process and review each

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completed application within a specified period; requiring

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that the Department of Legal Affairs notify the claimant

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if he or she qualifies for compensation within a specified

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period; providing for monetary compensation for certain

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wrongfully incarcerated persons; providing for recovery of

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reasonable attorney's fees and other costs with

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limitations for certain wrongfully incarcerated persons;

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providing for tuition waivers for wrongfully incarcerated

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persons who meet certain requirements; providing for

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administrative expunction of certain records; requiring

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that any monetary compensation be paid within a specified

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period by specified means; prescribing conditions under

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which 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; providing for severability; providing an effective

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date.

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

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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) "Division" means the Division of Administrative

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Hearings.

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

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felony conviction and sentence have been vacated by a court of

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competent jurisdiction and, with respect to whom pursuant to the

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requirements of section 3 of this act, the original sentencing

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court has issued its order finding that the person neither

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committed the act nor the offense that served as the basis for

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the 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 act or offense.

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     (5) "Eligible for compensation" means a person meets the

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definition of "wrongfully incarcerated person" and is not

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disqualified from seeking compensation under the criteria

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prescribed in subsections (1)-(3) of section 4 of this act.

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     (6) "Entitled to compensation" means a person meets the

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definition of "eligible for compensation" and satisfies the

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application requirements prescribed in section 5 under this act,

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and may receive compensation pursuant to section 6 of this act.

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     Section 3. Determination of status as a wrongfully

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incarcerated person; determination of eligibility for

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compensation.--

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     (1)(a) In order to meet the definition of a "wrongfully

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incarcerated person" and "eligible for compensation," upon entry

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of an order, based upon exonerating evidence, vacating a

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conviction and sentence, a person must set forth the claim of

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wrongful incarceration under oath and with particularity by

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filing a petition with the original sentencing court, with a copy

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of the petition and proper notice to the prosecuting authority in

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the underlying felony for which the person was incarcerated. At a

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minimum, the petition must:

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     1. State that verifiable and substantial evidence of actual

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innocence exists and state with particularity the nature and

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significance of the verifiable and substantial evidence of actual

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innocence; and

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     2. State that the person is not disqualified, under the

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provisions of subsections (1)-(3) of section 4, from seeking

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compensation under this act.

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     (b) The person must file the petition with the court:

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     1. Within 90 days after the order vacating a conviction and

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sentence becomes final if the person's conviction and sentence is

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vacated on or after July 1, 2008.

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     2. By July 1, 2010, if the person's conviction and sentence

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was vacated by an order that became final prior to July 1, 2008.

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     (2) The prosecuting authority must respond to the petition

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within 30 days. The prosecuting authority may respond:

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     (a) By certifying to the court that, based upon the

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petition and verifiable and substantial evidence of actual

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innocence, no further criminal proceedings in the case at bar can

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or will be initiated by the prosecuting authority, that no

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questions of fact remain as to the petitioner's wrongful

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incarceration, and that the petitioner is not ineligible from

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seeking compensation under the provisions of subsections (1)-(3)

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of section 4 of this act; or

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     (b) By contesting the nature, significance, or effect of

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the evidence of actual innocence, the facts related to the

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petitioner's alleged wrongful incarceration, or whether the

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petitioner is ineligible from seeking compensation under the

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provisions of subsections (1)-(3) of section 4 of this act.

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     (3) If the prosecuting authority responds as set forth in

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paragraph (2)(a), the original sentencing court, based upon the

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evidence of actual innocence, the prosecuting authority's

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certification, and upon the court's finding that the petitioner

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has presented clear and convincing evidence that the petitioner

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committed neither the act nor the offense that served as the

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basis for the conviction and incarceration, and that the

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

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who committed the act or offense, shall certify to the department

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that the petitioner is a wrongfully incarcerated person as

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defined by this act. Based upon the prosecuting authority's

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certification, the court shall also certify to the department

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that the petitioner is eligible for compensation under the

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provisions of subsections (1)-(3) of section 4 of this act.

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     (4)(a) If the prosecuting authority responds as set forth

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in paragraph (2)(b), the original sentencing court shall make a

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determination from the pleadings and supporting documentation

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whether, by a preponderance of the evidence, the petitioner is

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ineligible for compensation under the provisions of subsections

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(1)-(3) of section 4 of this act, regardless of his or her claim

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of wrongful incarceration. If the court finds the petitioner

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ineligible under the provisions of subsections (1)-(3) of section

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4, it shall dismiss the petition.

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     (b) If the prosecuting authority responds as set forth in

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paragraph (2)(b), and the court determines that the petitioner is

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eligible under the provisions of subsections (1)-(3) of section

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4, but the prosecuting authority contests the nature,

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significance or effect of the evidence of actual innocence, or

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the facts related to the petitioner's alleged wrongful

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incarceration, the court shall set forth its findings and

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transfer the petition to the division for findings of fact and a

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recommended determination of whether the petitioner has

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established that he or she is a wrongfully incarcerated person

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who is eligible for compensation under this act.

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     (5) Any questions of fact, the nature, significance or

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effect of the evidence of actual innocence, and the petitioner's

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eligibility for compensation under this act must be established

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by clear and convincing evidence by the petitioner before an

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administrative law judge.

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     (6)(a) Pursuant to division rules and any additional rules

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set forth by the administrative law judge, a hearing shall be

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conducted no later than 120 days after the transfer of the

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petition.

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     (b) The prosecuting authority shall appear for the purpose

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of contesting, as necessary, the facts, the nature, and

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significance or effect of the evidence of actual innocence as

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presented by the petitioner.

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     (c) No later than 45 days after the adjournment of the

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hearing, the administrative law judge shall issue an order

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setting forth his or her findings and recommendation and shall

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file the order with the original sentencing court.

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     (d) The original sentencing court shall review the findings

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and recommendation contained in the order of the administrative

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law judge and, within 60 days, shall issue its own order adopting

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or declining to adopt the findings and recommendation of the

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administrative law judge.

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     (7) If the court concludes that the petitioner is a

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wrongfully incarcerated person as defined by this act and is

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eligible for compensation as defined in this act, the court shall

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include in its order a certification to the department that:

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     (a)1. The order of the administrative law judge finds that

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the petitioner has met his or her burden of establishing by clear

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and convincing evidence that the petitioner committed neither the

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act nor the offense that served as the basis for the conviction

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and incarceration and that the petitioner did not aid, abet, or

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act as an accomplice to a person who committed the act or

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offense; or

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     2. That the court has declined to adopt the findings and

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recommendations of the administrative law judge and finds that

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the petitioner has met his or her burden of establishing by clear

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and convincing evidence that the petitioner committed neither the

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act nor the offense that served as the basis for the conviction

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and incarceration and that the petitioner did not aid, abet, or

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act as an accomplice to a person who committed the act or

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offense; and

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     (b) The original sentencing court determines the findings

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and recommendations on which its order is based are supported by

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competent, substantial evidence.

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     (8) The establishment of the method by which a person may

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seek the status of a wrongfully incarcerated person and a finding

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as to eligibility for compensation under this act in no way

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creates any rights of due process beyond those set forth herein,

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nor is there created any right to further petition or appeal

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beyond the scope of the method set forth herein.

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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 convicted of, or pled guilty or nolo contendere to,

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regardless of adjudication, any felony offense; or

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     (3) 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.

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     Section 5. Application for compensation for wrongful

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incarceration; administrative expunction; determination of

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entitlement to compensation.--

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     (1) A wrongfully incarcerated person who is eligible for

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compensation as defined in this act must initiate his or her

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application for compensation as required in this section no more

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than 2 years after the original sentencing court enters its order

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finding that the person meets the definition of wrongfully

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incarcerated person and is eligible for compensation as defined

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in this act.

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     (2) A wrongfully incarcerated person who is eligible for

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compensation under the act must apply to the Department of Legal

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Affairs. No estate of, or personal representative for, a decedent

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is entitled to apply on behalf of the decedent for compensation

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for wrongful incarceration.

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     (3) The Department of Legal Affairs may adopt rules

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regarding the forms and procedures related to applications for

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compensation under the Victims of Wrongful Incarceration

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Compensation Act.

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     (4) The application must include:

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

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and sentence;

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     (b) A certified copy of the original sentencing court's

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order finding the claimant to be a wrongfully incarcerated person

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who is eligible for compensation under this act;

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

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     (d) 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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     (e) 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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     (f) 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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     (g) 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 paragraph (1)(c) of section 6;

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     (h) All supporting documentation of any reasonable

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attorney's fees and expenses as described in paragraph (1)(d) of

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section 6; and

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     (i) Any other documentation, evidence, or information

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required by rules adopted by the Department of Legal Affairs.

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     (5) 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 claimant shall have 15 days after proper notification of any

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existing errors or omissions to supplement the application. The

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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 this 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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     (6) If the department determines that a claimant meets the

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requirements of this act, the wrongfully incarcerated person who

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is the subject of the claim becomes entitled to compensation,

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subject to the provisions in section 6 of this act.

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     Section 6. Compensation for wrongful incarceration.--

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

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the limitations and procedures prescribed in this section, a

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person who is found to be entitled to compensation under the

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provisions of this act is entitled to:

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     (a) Monetary compensation for wrongful incarceration, which

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shall be calculated at a rate of $50,000 for each year of

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wrongful incarceration, prorated as necessary to account for a

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portion of a year. For persons found to be wrongfully

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incarcerated after December 31, 2008, the Chief Financial Officer

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may adjust the annual rate of compensation for inflation using

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the change in the December-to-December "Consumer Price Index for

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All Urban Consumers" of the Bureau of Labor Statistics of the

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Department of Labor;

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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 as defined in s.

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1000.21(3), Florida Statutes, or any state university as defined

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in 1000.21(6), Florida Statutes, if the wrongfully incarcerated

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person meets and maintains the regular admission requirements of

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such career center, community college, or state university;

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remains registered at such educational institution; and makes

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satisfactory academic progress as defined by the educational

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institution in which the claimant 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;

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     (d) The amount of any reasonable attorney's fees and

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expenses incurred and paid by the wrongfully incarcerated person

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in 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 5; and

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

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943.0585, Florida Statutes, immediate administrative expunction

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

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wrongful arrest, wrongful conviction, and wrongful incarceration.

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The Department of Legal Affairs and the Department of Law

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Enforcement shall, upon a determination that a claimant is

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entitled to compensation, immediately take all action necessary

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to administratively expunge the claimant's criminal record

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arising from his or her wrongful arrest, wrongful conviction, and

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wrongful incarceration. All fees for this process shall be

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waived.

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

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may not exceed $2 million. 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 who 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 is eligible for compensation for the total

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number of years incarcerated. A wrongfully incarcerated person

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who commits a felony law violation that results in revocation of

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the parole or community supervision is ineligible for any

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compensation under subsection (1).

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     (3) 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 this 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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     (4)(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 this section shall be

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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 (3). The Chief Financial Officer shall

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issue the first installment payment on the 1-year anniversary of

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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 this section 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 (3), with subsequent installments issued in subsequent

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years on the anniversary date of the first installment payment.

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     (5) 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

388

by the Chief Financial Officer.

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

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application for compensation under this act if the person has a

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lawsuit pending against the state or any agency, instrumentality,

392

or any political subdivision thereof, or any other entity subject

393

to the provisions of s. 768.28, Florida Statutes, in state or

394

federal court requesting compensation arising out of the facts in

395

connection with the claimant's conviction and incarceration.

396

     (b) A wrongfully incarcerated person may not submit an

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application for compensation under this act if the person is the

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

399

facts in connection with the claimant's conviction and

400

incarceration.

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

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wrongfully incarcerated person may not pursue recovery under a

403

claim bill until the final disposition of the application.

404

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

405

provide the sole compensation for any and all present and future

406

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

407

conviction and incarceration. Upon notification by the department

408

that an application meets the requirements of this act as

409

required in subsection (5), a wrongfully incarcerated person may

410

not recover under a claim bill.

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

412

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

415

person under a claim bill, the person may not receive

416

compensation under this act.

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     (7) Any payment made under this act does not constitute a

418

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

419

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

420

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

421

     (8) Payments under this act shall immediately cease:

422

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

423

or pleads guilty or nolo contendere to, regardless of

424

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

425

jurisdiction the elements of which would constitute a felony in

426

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

427

is designated a felony; or

428

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

429

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

430

successors, and assigns of the wrongfully incarcerated person

431

shall have no right to receive future payments the person was

432

entitled to receive under this act.

433

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

434

another jurisdiction after submission of an application under

435

this act, a wrongfully incarcerated person must immediately

436

report the felony conviction to the department. The department,

437

in conjunction with the Chief Financial Officer, shall determine

438

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

439

wrongfully incarcerated person remains eligible for compensation

440

under this act by reviewing state and national criminal history

441

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

442

     Section 7. Continuing appropriation.--Beginning in the

443

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

444

a sum sufficient to pay the approved payments under this act is

445

appropriated from the General Revenue Fund to the Chief Financial

446

Officer, which sum is further appropriated for expenditure

447

pursuant to the provisions of this act.

448

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

449

to any person or circumstance is held invalid, the invalidity

450

does not affect other provisions or applications of the act which

451

can be given effect without the invalid provision or application,

452

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

453

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