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

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