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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; providing for state and national criminal

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records checks; requiring that the Department of Legal

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Affairs review each application and notify the claimant of

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any 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; directing the Chief Financial Officer to purchase

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an annuity on behalf of the claimant; prescribing the

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terms of the annuity; prescribing conditions under which

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an application may not be filed and compensation may not

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be awarded; requiring a claimant to sign a release before

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receiving such compensation; providing for a continuing

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appropriation from the General Revenue Fund; providing

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that an award of compensation does not constitute a waiver

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of sovereign immunity by the state; providing for

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severability; providing an effective 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 felony 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 two full

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sets of fingerprints administered by a law enforcement agency and

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a current form of photo identification, demonstrating that the

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person seeking compensation is the same individual who was

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wrongfully incarcerated;

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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 paragraph (1)(c) of section 6;

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     (g) 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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     (h) Any other documentation, evidence, or information

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required by rules adopted by the department.

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     (5) The department shall forward one full set of

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fingerprints of the applicant to the Department of Law

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Enforcement for statewide criminal records checks. The

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Department of Law Enforcement shall forward the second set of

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fingerprints to the Federal Bureau of Investigation for national

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criminal records checks. The results of the state and national

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records checks shall be submitted to the department.

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     (6) 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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     (7) 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 a warrant from the General Revenue Fund or

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another source designated by the Legislature in law for the

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purchase of an annuity for the claimant based on the total amount

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determined by the department under this act.

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     (4) The Chief Financial Officer shall purchase an annuity

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on behalf of the claimant for a term of not less than 10 years.

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The terms of the annuity shall:

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     (a) Provide that the annuity may not be sold, discounted,

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or used as security for a loan or mortgage by the applicant.

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     (b) Contain beneficiary provisions for the continued

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disbursement of the annuity in the event of the death of the

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applicant.

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     (5) Before the Chief Financial Officer draws the warrant

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for the purchase of the annuity, the claimant must sign a release

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and waiver on behalf of the claimant and his or her heirs,

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successors, and assigns, forever releasing the state or any

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agency, instrumentality, or any political subdivision thereof, or

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any other entity subject to the provisions of s. 768.28, Florida

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Statutes, from all present or future claims that the claimant or

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his or her heirs, successors, or assigns may have against such

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entities arising out of the facts in connection with the wrongful

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conviction for which compensation is being sought under the act.

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The release and waiver must be provided to the department prior

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to the issuance of the warrant 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,

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or any political subdivision thereof, or any other entity subject

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

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federal court requesting compensation arising out of the facts in

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connection with the claimant's conviction and incarceration.

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     (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

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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 this 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 this act is intended to

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provide the sole compensation for any and all present and future

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claims 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 this act, a

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wrongfully incarcerated person may not recover under a claim

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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 this act.

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     (7) Any payment made under this 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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     Section 7. Continuing appropriation.--Beginning in the

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

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

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appropriated from the General Revenue Fund to the Chief Financial

414

Officer, which sum is further appropriated for expenditure

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pursuant to the provisions of this act.

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     Section 8. 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 this act are severable.

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