HB 1531

1	A bill to be entitled
2	An act relating to compensation for wrongful
3	incarceration; amending s. 961.02, F.S.; defining the term
4	"actual innocence" for purposes of the Victims of Wrongful
5	Incarceration Compensation Act; redefining the term
6	"wrongfully incarcerated person" in order to conform;
7	amending s. 961.03, F.S.; requiring that a petition for
8	compensation include clear and convincing evidence of
9	actual innocence; requiring the petitioner to submit
10	fingerprints for criminal history records checks;
11	providing procedures for taking and submitting
12	fingerprints; requiring that the results of the criminal
13	history records checks be submitted to the clerk of the
14	court; providing for use of the results by the court;
15	amending s. 961.05, F.S.; eliminating the requirement that
16	a wrongfully incarcerated person provide certain court
17	records and documentation from the Department of
18	Corrections along with an application for compensation;
19	requiring the Department of Legal Affairs to request
20	certain records from the clerk of the court and the
21	Department of Corrections; amending s. 961.06, F.S.;
22	precluding submission of an application for compensation
23	if the wrongfully incarcerated person has received a prior
24	favorable judgment from a civil action arising out of the
25	wrongful incarceration; providing an effective date.
26
27	Be It Enacted by the Legislature of the State of Florida:
28
29	Section 1.  Section 961.02, Florida Statutes, is amended to
30	read:
31	961.02  Definitions.--As used in ss. 961.01-961.07, the
32	term:
33	(1)  "Act" means the Victims of Wrongful Incarceration
34	Compensation Act.
35	(2)  "Actual innocence" means that a person did not commit
36	the act or the offense that served as the basis for the
37	conviction and incarceration for which the person seeks
38	compensation, and that the person did not aid, abet, or act as
39	an accomplice to a person who committed the act or offense.
40	(3)(2)  "Department" means the Department of Legal Affairs.
41	(4)(3)  "Division" means the Division of Administrative
42	Hearings.
43	(5)(4)  "Wrongfully incarcerated person" means a person
44	whose felony conviction and sentence have been vacated by a
45	court of competent jurisdiction and, with respect to whom
46	pursuant to the requirements of s. 961.03, the original
47	sentencing court has issued its order finding that the person
48	has proven actual innocence by clear and convincing evidence
49	neither committed the act nor the offense that served as the
50	basis for the conviction and incarceration and that the person
51	did not aid, abet, or act as an accomplice or accessory to a
52	person who committed the act or offense.
53	(6)(5)  "Eligible for compensation" means a person meets
54	the definition of "wrongfully incarcerated person" and is not
55	disqualified from seeking compensation under the criteria
56	prescribed in s. 961.04.
57	(7)(6)  "Entitled to compensation" means a person meets the
58	definition of "eligible for compensation" and satisfies the
59	application requirements prescribed in s. 961.05, and may
60	receive compensation pursuant to s. 961.06.
61	Section 2.  Section 961.03, Florida Statutes, is amended to
62	read:
63	961.03  Determination of status as a wrongfully
64	incarcerated person; determination of eligibility for
65	compensation.--
66	(1)(a)  In order to meet the definition of a "wrongfully
67	incarcerated person" and "eligible for compensation," upon entry
68	of an order, based upon exonerating evidence, vacating a
69	conviction and sentence, a person must set forth the claim of
70	wrongful incarceration under oath and with particularity by
71	filing a petition with the original sentencing court, with a
72	copy of the petition and proper notice to the prosecuting
73	authority in the underlying felony for which the person was
74	incarcerated. At a minimum, the petition must:
75	1.  State that clear and convincing verifiable and
76	substantial evidence of actual innocence exists and state with
77	particularity the nature and significance of the clear and
78	convincing verifiable and substantial evidence of actual
79	innocence; and
80	2.  State that the person is not disqualified, under the
81	provisions of s. 961.04, from seeking compensation under this
82	act.
83	(b)  The person must file the petition with the court:
84	1.  Within 90 days after the order vacating a conviction
85	and sentence becomes final if the person's conviction and
86	sentence is vacated on or after July 1, 2008.
87	2.  By July 1, 2010, if the person's conviction and
88	sentence was vacated by an order that became final prior to July
89	1, 2008.
90	(c)1.  After filing the petition, the petitioner must
91	submit fingerprints for a state and national criminal history
92	records check.
93	2.  The clerk of the court shall inform the petitioner of
94	the process for having his or her fingerprints taken and
95	submitted and provide information concerning law enforcement
96	agencies or service providers that are authorized to submit
97	fingerprints electronically to the Department of Law
98	Enforcement.
99	3.  The petitioner's fingerprints shall be taken in a
100	manner approved by the Department of Law Enforcement and shall
101	be submitted electronically to the Department of Law Enforcement
102	for state processing for a criminal history records check. The
103	Department of Law Enforcement shall submit the fingerprints to
104	the Federal Bureau of Investigation for national processing. The
105	Department of Law Enforcement shall submit the results of the
106	state and national records check to the clerk of the court. The
107	court shall consider the results in evaluating whether the
108	petitioner is eligible for compensation under s. 961.04.
109	4.  The petitioner may not be charged for the cost of
110	conducting the state and national criminal history records
111	checks required under this paragraph.
112	(2)  The prosecuting authority must respond to the petition
113	within 30 days. The prosecuting authority may respond:
114	(a)  By certifying to the court that, based upon the
115	petition and verifiable and substantial evidence of actual
116	innocence, no further criminal proceedings in the case at bar
117	can or will be initiated by the prosecuting authority, and that
118	the prosecuting authority does not contest no questions of fact
119	remain as to the petitioner's actual innocence wrongful
120	incarceration, and that the petitioner is not ineligible from
121	seeking compensation under the provisions of s. 961.04; or
122	(b)  By certifying to the court that questions of fact
123	remain as to the petitioner's actual innocence, and that the
124	prosecuting authority contests contesting the nature,
125	significance, or effect of the evidence of actual innocence, the
126	facts related to the petitioner's alleged wrongful
127	incarceration, or whether the petitioner is ineligible from
128	seeking compensation under the provisions of s. 961.04.
129	(3)  If the prosecuting authority responds as set forth in
130	paragraph (2)(a), the original sentencing court, based upon the
131	prosecuting authority's certification and the court's finding
132	that the petitioner has proven actual innocence by clear and
133	convincing evidence and that the petitioner is eligible for
134	compensation under s. 961.04 evidence of actual innocence, the
135	prosecuting authority's certification, and upon the court's
136	finding that the petitioner has presented clear and convincing
137	evidence that the petitioner committed neither the act nor the
138	offense that served as the basis for the conviction and
139	incarceration, and that the petitioner did not aid, abet, or act
140	as an accomplice to a person who committed the act or offense,
141	shall certify to the department that the petitioner is a
142	wrongfully incarcerated person who is eligible for compensation
143	as defined by this act. Based upon the prosecuting authority's
144	certification, the court shall also certify to the department
145	that the petitioner is eligible for compensation under the
146	provisions of s. 961.04.
147	(4)(a)  If the prosecuting authority responds as set forth
148	in paragraph (2)(b), the original sentencing court shall make a
149	determination from the pleadings and supporting documentation
150	whether, by a preponderance of the evidence, the petitioner is
151	eligible ineligible for compensation under the provisions of s.
152	961.04, regardless of his or her claim of wrongful
153	incarceration. If the court finds the petitioner ineligible
154	under the provisions of s. 961.04, it shall dismiss the
155	petition.
156	(b)  If the prosecuting authority responds as set forth in
157	paragraph (2)(b), and the court determines that the petitioner
158	is eligible under the provisions of s. 961.04, but the
159	prosecuting authority contests the nature, significance, or
160	effect of the evidence of actual innocence, or the facts related
161	to the petitioner's alleged wrongful incarceration, the court
162	shall set forth its findings and transfer the petition to the
163	division for findings of fact and a recommended determination of
164	whether the petitioner has proven actual innocence established
165	that he or she is a wrongfully incarcerated person who is
166	eligible for compensation under this act.
167	(5)  The petitioner must prove actual innocence before the
168	administrative law judge by clear and convincing evidence. Any
169	questions of fact, the nature, significance or effect of the
170	evidence of actual innocence, and the petitioner's eligibility
171	for compensation under this act must be established by clear and
172	convincing evidence by the petitioner before an administrative
173	law judge.
174	(6)(a)  Pursuant to division rules and any additional rules
175	set forth by the administrative law judge, a hearing shall be
176	conducted no later than 120 days after the transfer of the
177	petition to the division.
178	(b)  The prosecuting authority shall appear for the purpose
179	of contesting, as necessary, the facts, the nature, and
180	significance or effect of the evidence of actual innocence as
181	presented by the petitioner.
182	(c)  No later than 45 days after the adjournment of the
183	hearing, the administrative law judge shall issue an order
184	setting forth his or her findings and recommendation and shall
185	file the order with the original sentencing court.
186	(d)  The original sentencing court shall review the
187	findings and recommendation contained in the order of the
188	administrative law judge and, within 60 days, shall issue its
189	own order adopting or declining to adopt the findings and
190	recommendation of the administrative law judge.
191	(7)  If the court concludes that the petitioner is a
192	wrongfully incarcerated person as defined by this act and is
193	eligible for compensation as defined in this act, the court
194	shall include in its order a certification to the department
195	that:
196	(a)1.  The order of the administrative law judge finds that
197	the petitioner has met his or her burden of proving actual
198	innocence establishing by clear and convincing evidence that the
199	petitioner committed neither the act nor the offense that served
200	as the basis for the conviction and incarceration and that the
201	petitioner did not aid, abet, or act as an accomplice to a
202	person who committed the act or offense;
203	2.  The findings and recommendation of the administrative
204	law judge on which its order is based are supported by
205	competent, substantial evidence; and
206	3.  The petitioner is a wrongfully incarcerated person who
207	is eligible for compensation; or
208	(b)2.  That The court has declined to adopt the findings
209	and recommendation recommendations of the administrative law
210	judge that the petitioner failed to prove actual innocence by
211	clear and convincing evidence and finds that the petitioner has
212	met his or her burden of proving actual innocence establishing
213	by clear and convincing evidence, and that the petitioner is a
214	wrongfully incarcerated person who is eligible for compensation.
215	that the petitioner committed neither the act nor the offense
216	that served as the basis for the conviction and incarceration
217	and that the petitioner did not aid, abet, or act as an
218	accomplice to a person who committed the act or offense; and
219	(b)  The original sentencing court determines the findings
220	and recommendations on which its order is based are supported by
221	competent, substantial evidence.
222	(8)  The establishment of the method by which a person may
223	seek the status of a wrongfully incarcerated person and a
224	finding as to eligibility for compensation under this act in no
225	way creates any rights of due process beyond those set forth in
226	this act herein, nor is there created any right to further
227	petition or appeal beyond the scope of the method set forth in
228	this act herein.
229	Section 3.  Section 961.05, Florida Statutes, is amended to
230	read:
231	961.05  Application for compensation for wrongful
232	incarceration; administrative expunction; determination of
233	entitlement to compensation.--
234	(1)  A wrongfully incarcerated person who is eligible for
235	compensation as defined in this act must initiate his or her
236	application for compensation as required in this section no more
237	than 2 years after the original sentencing court enters its
238	order finding that the person meets the definition of a
239	wrongfully incarcerated person and is eligible for compensation
240	as defined in this act.
241	(2)  A wrongfully incarcerated person who is eligible for
242	compensation under the act must apply to the Department of Legal
243	Affairs. No estate of, or personal representative for, a
244	decedent is entitled to apply on behalf of the decedent for
245	compensation for wrongful incarceration.
246	(3)  The Department of Legal Affairs may adopt rules
247	regarding the forms and procedures related to applications for
248	compensation under this act the Victims of Wrongful
249	Incarceration Compensation Act.
250	(4)  The application must include:
251	(a)  Identification of the original sentencing court and
252	the criminal case number of the case or cases for which the
253	person was wrongfully incarcerated A certified copy of the order
254	vacating the conviction and sentence;
255	(b)  A certified copy of the original sentencing court's
256	order finding the claimant to be a wrongfully incarcerated
257	person who is eligible for compensation under this act;
258	(c)  Certified copies of the original judgment and
259	sentence;
260	(d)  Documentation demonstrating the length of the sentence
261	served, including documentation from the Department of
262	Corrections regarding the person's admission into and release
263	from the custody of the Department of Corrections;
264	(b)(e)  Positive proof of identification, including two
265	full sets of fingerprints administered by a law enforcement
266	agency and a current form of photo identification, demonstrating
267	that the person seeking compensation is the same individual who
268	was wrongfully incarcerated;
269	(c)(f)  All supporting documentation of any fine, penalty,
270	or court costs imposed and paid by the wrongfully incarcerated
271	person as described in s. 961.06(1)(c);
272	(d)(g)  All supporting documentation of any reasonable
273	attorney's fees and expenses as described in s. 961.06(1)(d);
274	and
275	(e)(h)  Any other documentation, evidence, or information
276	required by rules adopted by the department.
277	(5)  Upon receipt of the application, the department shall:
278	forward one full set of fingerprints of the applicant to the
279	Department of Law Enforcement for statewide criminal records
280	checks. The Department of Law Enforcement shall forward the
281	second set of fingerprints to the Federal Bureau of
282	Investigation for national criminal records checks. The results
283	of the state and national records checks shall be submitted to
284	the department.
285	(a)  Request that the clerk of the court provide a
286	certified copy of the order vacating the conviction and sentence
287	and certified copies of the original judgment and sentence. The
288	clerk shall provide these records at no charge.
289	(b)  Request that the Department of Corrections provide
290	documentation demonstrating the length of the sentence served,
291	including the dates of the wrongfully incarcerated person's
292	admission into and release from the custody of the Department of
293	Corrections. The Department of Corrections shall provide this
294	documentation at no charge.
295	(c)(6)  Upon receipt of an application, the department
296	shall Examine the application and notify the wrongfully
297	incarcerated person claimant within 30 calendar days of any
298	errors or omissions, and request any additional information
299	relevant to the review of the application. The wrongfully
300	incarcerated person claimant shall have 15 days after proper
301	notification of any existing errors or omissions to supplement
302	the application. The department may not deny an application for
303	failure of the wrongfully incarcerated person claimant to
304	correct an error or omission or supply additional information
305	unless the department timely notified the person claimant of
306	such errors or omissions or requested the additional information
307	within the 30-day period specified in this subsection. The
308	department shall process and review each completed application
309	within 90 calendar days. Once the department determines whether
310	a claim for compensation meets the requirements of this act, the
311	department shall notify the wrongfully incarcerated person
312	claimant within 5 business days of that determination.
313	(6)(7)  If the department determines that a wrongfully
314	incarcerated person claimant meets the requirements of this act,
315	the wrongfully incarcerated person who is the subject of the
316	claim becomes entitled to compensation, subject to the
317	provisions in s. 961.06.
318	Section 4.  Section 961.06, Florida Statutes, is amended to
319	read:
320	961.06  Compensation for wrongful incarceration.--
321	(1)  Except as otherwise provided in this act and subject
322	to the limitations and procedures prescribed in this section, a
323	person who is found to be entitled to compensation under the
324	provisions of this act is entitled to:
325	(a)  Monetary compensation for wrongful incarceration,
326	which shall be calculated at a rate of $50,000 for each year of
327	wrongful incarceration, prorated as necessary to account for a
328	portion of a year. For persons found to be wrongfully
329	incarcerated after December 31, 2008, the Chief Financial
330	Officer may adjust the annual rate of compensation for inflation
331	using the change in the December-to-December "Consumer Price
332	Index for All Urban Consumers" of the Bureau of Labor Statistics
333	of the Department of Labor;
334	(b)  A waiver of tuition and fees for up to 120 hours of
335	instruction at any career center established under s. 1001.44,
336	any community college as defined in s. 1000.21(3), or any state
337	university as defined in s. 1000.21(6), if the wrongfully
338	incarcerated person meets and maintains the regular admission
339	requirements of such career center, community college, or state
340	university; remains registered at such educational institution;
341	and makes satisfactory academic progress as defined by the
342	educational institution in which the wrongfully incarcerated
343	person claimant is enrolled;
344	(c)  The amount of any fine, penalty, or court costs
345	imposed and paid by the wrongfully incarcerated person;
346	(d)  The amount of any reasonable attorney's fees and
347	expenses incurred and paid by the wrongfully incarcerated person
348	in connection with all criminal proceedings and appeals
349	regarding the wrongful conviction, to be calculated by the
350	department based upon the supporting documentation submitted as
351	specified in s. 961.05; and
352	(e)  Notwithstanding any provision to the contrary in s.
353	943.0585, immediate administrative expunction of the wrongfully
354	incarcerated person's criminal record resulting from his or her
355	wrongful arrest, wrongful conviction, and wrongful
356	incarceration. The Department of Legal Affairs and the
357	Department of Law Enforcement shall, upon a determination that a
358	person claimant is entitled to compensation, immediately take
359	all action necessary to administratively expunge the person's
360	claimant's criminal record arising from his or her wrongful
361	arrest, wrongful conviction, and wrongful incarceration. All
362	fees for this process shall be waived.
363
364	The total compensation awarded under paragraphs (a), (c), and
365	(d) may not exceed $2 million. No further award for attorney's
366	fees, lobbying fees, costs, or other similar expenses shall be
367	made by the state.
368	(2)  In calculating monetary compensation under paragraph
369	(1)(a), a wrongfully incarcerated person who is placed on parole
370	or community supervision while serving the sentence resulting
371	from the wrongful conviction and who commits anything less than
372	a felony law violation that results in revocation of the parole
373	or community supervision is eligible for compensation for the
374	total number of years incarcerated. A wrongfully incarcerated
375	person who commits a felony law violation that results in
376	revocation of the parole or community supervision is ineligible
377	for any compensation under subsection (1).
378	(3)  Within 15 calendar days after issuing notice to the
379	wrongfully incarcerated person claimant that his or her claim
380	satisfies all of the requirements under this act, the department
381	shall notify the Chief Financial Officer to draw a warrant from
382	the General Revenue Fund or another source designated by the
383	Legislature in law for the purchase of an annuity for the
384	wrongfully incarcerated person claimant based on the total
385	amount determined by the department under this act.
386	(4)  The Chief Financial Officer shall purchase an annuity
387	on behalf of the wrongfully incarcerated person claimant for a
388	term of not less than 10 years. The terms of the annuity shall:
389	(a)  Provide that the annuity may not be sold, discounted,
390	or used as security for a loan or mortgage by the wrongfully
391	incarcerated person applicant.
392	(b)  Contain beneficiary provisions for the continued
393	disbursement of the annuity in the event of the death of the
394	wrongfully incarcerated person applicant.
395	(5)  Before the Chief Financial Officer draws the warrant
396	for the purchase of the annuity, the wrongfully incarcerated
397	person claimant must sign a release and waiver on behalf of the
398	wrongfully incarcerated person claimant and his or her heirs,
399	successors, and assigns, forever releasing the state or any
400	agency, instrumentality, or any political subdivision thereof,
401	or any other entity subject to the provisions of s. 768.28, from
402	all present or future claims that the wrongfully incarcerated
403	person claimant or his or her heirs, successors, or assigns may
404	have against such entities arising out of the facts in
405	connection with the wrongful conviction for which compensation
406	is being sought under the act. The release and waiver must be
407	provided to the department prior to the issuance of the warrant
408	by the Chief Financial Officer.
409	(6)(a)  A wrongfully incarcerated person may not submit an
410	application for compensation under this act if the person has a
411	civil action lawsuit pending against the state or any agency,
412	instrumentality, or any political subdivision thereof, or any
413	other entity subject to the provisions of s. 768.28, in state or
414	federal court requesting compensation arising out of the facts
415	in connection with the wrongfully incarcerated person's
416	claimant's conviction and incarceration.
417	(b)  A wrongfully incarcerated person may not submit an
418	application for compensation under this act if the person has
419	received a prior judgment in his or her favor in a civil action
420	against the state or any agency, instrumentality, or any
421	political subdivision thereof, or against any other entity
422	subject to s. 768.28, in state or federal court arising out of
423	the wrongfully incarcerated person's conviction and
424	incarceration.
425	(c)(b)  A wrongfully incarcerated person may not submit an
426	application for compensation under this act if the person is the
427	subject of a claim bill pending for claims arising out of the
428	facts in connection with the wrongfully incarcerated person's
429	claimant's conviction and incarceration.
430	(d)(c)  Once an application is filed under this act, a
431	wrongfully incarcerated person may not pursue recovery under a
432	claim bill until the final disposition of the application.
433	(e)(d)  Any amount awarded under this act is intended to
434	provide the sole compensation for any and all present and future
435	claims arising out of the facts in connection with the
436	wrongfully incarcerated person's claimant's conviction and
437	incarceration. Upon notification by the department that an
438	application meets the requirements of this act, a wrongfully
439	incarcerated person may not recover under a claim bill.
440	(f)(e)  Any compensation awarded under a claim bill shall
441	be the sole redress for claims arising out of the facts in
442	connection with the wrongfully incarcerated person's claimant's
443	conviction and incarceration and, upon any award of compensation
444	to a wrongfully incarcerated person under a claim bill, the
445	person may not receive compensation under this act.
446	(7)  Any payment made under this act does not constitute a
447	waiver of any defense of sovereign immunity or an increase in
448	the limits of liability on behalf of the state or any person
449	subject to the provisions of s. 768.28 or other law.
450	Section 5.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.