Florida Senate - 2009 SB 2408
By Senator Joyner
18-01591A-09 20092408__
1 A bill to be entitled
2 An act relating to compensation for wrongful
3 incarceration; amending s. 961.02, F.S.; defining the
4 term “actual innocence” for purposes of the Victims of
5 Wrongful Incarceration Compensation Act; redefining
6 the term “wrongfully incarcerated person” in order to
7 conform; amending s. 961.03, F.S.; requiring that a
8 petition for compensation include clear and convincing
9 evidence of actual innocence; requiring the petitioner
10 to submit fingerprints for criminal history records
11 checks; providing procedures for taking and submitting
12 fingerprints; requiring that the results of the
13 criminal history records checks be submitted to the
14 clerk of the court; providing for use of the results
15 by the court; amending s. 961.05, F.S.; eliminating
16 the requirement that a wrongfully incarcerated person
17 provide certain court records and documentation from
18 the Department of Corrections along with an
19 application for compensation; requiring the Department
20 of Legal Affairs to request certain records from the
21 clerk of the court and the Department of Corrections;
22 amending s. 961.06, F.S.; precluding submission of an
23 application for compensation if the wrongfully
24 incarcerated person has received a prior favorable
25 judgment from a civil action arising out of the
26 wrongful incarceration; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Section 961.02, Florida Statutes, is amended to
31 read:
32 961.02 Definitions.—As used in ss. 961.01-961.07, the 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 the
54 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 incarcerated
64 person; determination of eligibility for compensation.—
65 (1)(a) In order to meet the definition of a “wrongfully
66 incarcerated person” and “eligible for compensation,” upon entry
67 of an order, based upon exonerating evidence, vacating a
68 conviction and sentence, a person must set forth the claim of
69 wrongful incarceration under oath and with particularity by
70 filing a petition with the original sentencing court, with a
71 copy of the petition and proper notice to the prosecuting
72 authority in the underlying felony for which the person was
73 incarcerated. At a minimum, the petition must:
74 1. State that clear and convincing verifiable and
75 substantial evidence of actual innocence exists and state with
76 particularity the nature and significance of the clear and
77 convincing verifiable and substantial evidence of actual
78 innocence; and
79 2. State that the person is not disqualified, under the
80 provisions of s. 961.04, from seeking compensation under this
81 act.
82 (b) The person must file the petition with the court:
83 1. Within 90 days after the order vacating a conviction and
84 sentence becomes final if the person’s conviction and sentence
85 is vacated on or after July 1, 2008.
86 2. By July 1, 2010, if the person’s conviction and sentence
87 was vacated by an order that became final prior to July 1, 2008.
88 (c)1. After filing the petition, the petitioner must submit
89 fingerprints for a state and national criminal history records
90 check.
91 2. The clerk of the court shall inform the petitioner of
92 the process for having his or her fingerprints taken and
93 submitted and provide information concerning law enforcement
94 agencies or service providers that are authorized to submit
95 fingerprints electronically to the Department of Law
96 Enforcement.
97 3. The petitioner’s fingerprints shall be taken in a manner
98 approved by the Department of Law Enforcement and shall be
99 submitted electronically to the Department of Law Enforcement
100 for state processing for a criminal history records check. The
101 Department of Law Enforcement shall submit the fingerprints to
102 the Federal Bureau of Investigation for national processing. The
103 Department of Law Enforcement shall submit the results of the
104 state and national records check to the clerk of the court. The
105 court shall consider the results in evaluating whether the
106 petitioner is eligible for compensation under s. 961.04.
107 4. The petitioner may not be charged for the cost of
108 conducting the state and national criminal history records
109 checks required under this paragraph.
110 (2) The prosecuting authority must respond to the petition
111 within 30 days. The prosecuting authority may respond:
112 (a) By certifying to the court that, based upon the
113 petition and verifiable and substantial evidence of actual
114 innocence, no further criminal proceedings in the case at bar
115 can or will be initiated by the prosecuting authority, and that
116 the prosecuting authority does not contest no questions of fact
117 remain as to the petitioner’s actual innocence wrongful
118 incarceration, and that the petitioner is not ineligible from
119 seeking compensation under the provisions of s. 961.04; or
120 (b) By certifying to the court that questions of fact
121 remain as to the petitioner’s actual innocence, and that the
122 prosecuting authority contests contesting the nature,
123 significance, or effect of the evidence of actual innocence, the
124 facts related to the petitioner’s alleged wrongful
125 incarceration, or whether the petitioner is ineligible from
126 seeking compensation under the provisions of s. 961.04.
127 (3) If the prosecuting authority responds as set forth in
128 paragraph (2)(a), the original sentencing court, based upon the
129 prosecuting authority’s certification and the court’s finding
130 that the petitioner has proven actual innocence by clear and
131 convincing evidence and that the petitioner is eligible for
132 compensation under s. 961.04 evidence of actual innocence, the
133 prosecuting authority’s certification, and upon the court’s
134 finding that the petitioner has presented clear and convincing
135 evidence that the petitioner committed neither the act nor the
136 offense that served as the basis for the conviction and
137 incarceration, and that the petitioner did not aid, abet, or act
138 as an accomplice to a person who committed the act or offense,
139 shall certify to the department that the petitioner is a
140 wrongfully incarcerated person who is eligible for compensation
141 as defined by this act. Based upon the prosecuting authority’s
142 certification, the court shall also certify to the department
143 that the petitioner is eligible for compensation under the
144 provisions of s. 961.04.
145 (4)(a) If the prosecuting authority responds as set forth
146 in paragraph (2)(b), the original sentencing court shall make a
147 determination from the pleadings and supporting documentation
148 whether, by a preponderance of the evidence, the petitioner is
149 eligible ineligible for compensation under the provisions of s.
150 961.04, regardless of his or her claim of wrongful
151 incarceration. If the court finds the petitioner ineligible
152 under the provisions of s. 961.04, it shall dismiss the
153 petition.
154 (b) If the prosecuting authority responds as set forth in
155 paragraph (2)(b), and the court determines that the petitioner
156 is eligible under the provisions of s. 961.04, but the
157 prosecuting authority contests the nature, significance, or
158 effect of the evidence of actual innocence, or the facts related
159 to the petitioner’s alleged wrongful incarceration, the court
160 shall set forth its findings and transfer the petition to the
161 division for findings of fact and a recommended determination of
162 whether the petitioner has proven actual innocence established
163 that he or she is a wrongfully incarcerated person who is
164 eligible for compensation under this act.
165 (5) The petitioner must prove actual innocence before the
166 administrative law judge by clear and convincing evidence. Any
167 questions of fact, the nature, significance or effect of the
168 evidence of actual innocence, and the petitioner’s eligibility
169 for compensation under this act must be established by clear and
170 convincing evidence by the petitioner before an administrative
171 law judge.
172 (6)(a) Pursuant to division rules and any additional rules
173 set forth by the administrative law judge, a hearing shall be
174 conducted no later than 120 days after the transfer of the
175 petition to the division.
176 (b) The prosecuting authority shall appear for the purpose
177 of contesting, as necessary, the facts, the nature, and
178 significance or effect of the evidence of actual innocence as
179 presented by the petitioner.
180 (c) No later than 45 days after the adjournment of the
181 hearing, the administrative law judge shall issue an order
182 setting forth his or her findings and recommendation and shall
183 file the order with the original sentencing court.
184 (d) The original sentencing court shall review the findings
185 and recommendation contained in the order of the administrative
186 law judge and, within 60 days, shall issue its own order
187 adopting or declining to adopt the findings and recommendation
188 of the administrative law judge.
189 (7) If the court concludes that the petitioner is a
190 wrongfully incarcerated person as defined by this act and is
191 eligible for compensation as defined in this act, the court
192 shall include in its order a certification to the department
193 that:
194 (a)1. The order of the administrative law judge finds that
195 the petitioner has met his or her burden of proving actual
196 innocence establishing by clear and convincing evidence that the
197 petitioner committed neither the act nor the offense that served
198 as the basis for the conviction and incarceration and that the
199 petitioner did not aid, abet, or act as an accomplice to a
200 person who committed the act or offense;
201 2. The findings and recommendation of the administrative
202 law judge on which its order is based are supported by
203 competent, substantial evidence; and
204 3. The petitioner is a wrongfully incarcerated person who
205 is eligible for compensation; or
206 (b)2. That The court has declined to adopt the findings and
207 recommendation recommendations of the administrative law judge
208 that the petitioner failed to prove actual innocence by clear
209 and convincing evidence and finds that the petitioner has met
210 his or her burden of proving actual innocence establishing by
211 clear and convincing evidence, and that the petitioner is a
212 wrongfully incarcerated person who is eligible for compensation.
213 that the petitioner committed neither the act nor the offense
214 that served as the basis for the conviction and incarceration
215 and that the petitioner did not aid, abet, or act as an
216 accomplice to a person who committed the act or offense; and
217 (b) The original sentencing court determines the findings
218 and recommendations on which its order is based are supported by
219 competent, substantial evidence.
220 (8) The establishment of the method by which a person may
221 seek the status of a wrongfully incarcerated person and a
222 finding as to eligibility for compensation under this act in no
223 way creates any rights of due process beyond those set forth in
224 this act herein, nor is there created any right to further
225 petition or appeal beyond the scope of the method set forth in
226 this act herein.
227 Section 3. Section 961.05, Florida Statutes, is amended to
228 read:
229 961.05 Application for compensation for wrongful
230 incarceration; administrative expunction; determination of
231 entitlement to compensation.—
232 (1) A wrongfully incarcerated person who is eligible for
233 compensation as defined in this act must initiate his or her
234 application for compensation as required in this section no more
235 than 2 years after the original sentencing court enters its
236 order finding that the person meets the definition of a
237 wrongfully incarcerated person and is eligible for compensation
238 as defined in this act.
239 (2) A wrongfully incarcerated person who is eligible for
240 compensation under the act must apply to the Department of Legal
241 Affairs. No estate of, or personal representative for, a
242 decedent is entitled to apply on behalf of the decedent for
243 compensation for wrongful incarceration.
244 (3) The Department of Legal Affairs may adopt rules
245 regarding the forms and procedures related to applications for
246 compensation under this act the Victims of Wrongful
247 Incarceration Compensation Act.
248 (4) The application must include:
249 (a) Identification of the original sentencing court and the
250 criminal case number of the case or cases for which the person
251 was wrongfully incarcerated A certified copy of the order
252 vacating the conviction and sentence;
253 (b) A certified copy of the original sentencing court’s
254 order finding the claimant to be a wrongfully incarcerated
255 person who is eligible for compensation under this act;
256 (c) Certified copies of the original judgment and sentence;
257 (d) Documentation demonstrating the length of the sentence
258 served, including documentation from the Department of
259 Corrections regarding the person’s admission into and release
260 from the custody of the Department of Corrections;
261 (b)(e) Positive proof of identification, including two full
262 sets of fingerprints administered by a law enforcement agency
263 and a current form of photo identification, demonstrating that
264 the person seeking compensation is the same individual who was
265 wrongfully incarcerated;
266 (c)(f) All supporting documentation of any fine, penalty,
267 or court costs imposed and paid by the wrongfully incarcerated
268 person as described in s. 961.06(1)(c);
269 (d)(g) All supporting documentation of any reasonable
270 attorney’s fees and expenses as described in s. 961.06(1)(d);
271 and
272 (e)(h) Any other documentation, evidence, or information
273 required by rules adopted by the department.
274 (5) Upon receipt of the application, the department shall:
275 forward one full set of fingerprints of the applicant to the
276 Department of Law Enforcement for statewide criminal records
277 checks. The Department of Law Enforcement shall forward the
278 second set of fingerprints to the Federal Bureau of
279 Investigation for national criminal records checks. The results
280 of the state and national records checks shall be submitted to
281 the department.
282 (a) Request that the clerk of the court provide a certified
283 copy of the order vacating the conviction and sentence and
284 certified copies of the original judgment and sentence. The
285 clerk shall provide these records at no charge.
286 (b) Request that the Department of Corrections provide
287 documentation demonstrating the length of the sentence served,
288 including the dates of the wrongfully incarcerated person's
289 admission into and release from the custody of the Department of
290 Corrections. The Department of Corrections shall provide this
291 documentation at no charge.
292 (c)(6) Upon receipt of an application, the department shall
293 Examine the application and notify the wrongfully incarcerated
294 person claimant within 30 calendar days of any errors or
295 omissions, and request any additional information relevant to
296 the review of the application. The wrongfully incarcerated
297 person claimant shall have 15 days after proper notification of
298 any existing errors or omissions to supplement the application.
299 The department may not deny an application for failure of the
300 wrongfully incarcerated person claimant to correct an error or
301 omission or supply additional information unless the department
302 timely notified the person claimant of such errors or omissions
303 or requested the additional information within the 30-day period
304 specified in this subsection. The department shall process and
305 review each completed application within 90 calendar days. Once
306 the department determines whether a claim for compensation meets
307 the requirements of this act, the department shall notify the
308 wrongfully incarcerated person claimant within 5 business days
309 of that determination.
310 (6)(7) If the department determines that a wrongfully
311 incarcerated person claimant meets the requirements of this act,
312 the wrongfully incarcerated person who is the subject of the
313 claim becomes entitled to compensation, subject to the
314 provisions in s. 961.06.
315 Section 4. Section 961.06, Florida Statutes, is amended to
316 read:
317 961.06 Compensation for wrongful incarceration.—
318 (1) Except as otherwise provided in this act and subject to
319 the limitations and procedures prescribed in this section, a
320 person who is found to be entitled to compensation under the
321 provisions of this act is entitled to:
322 (a) Monetary compensation for wrongful incarceration, which
323 shall be calculated at a rate of $50,000 for each year of
324 wrongful incarceration, prorated as necessary to account for a
325 portion of a year. For persons found to be wrongfully
326 incarcerated after December 31, 2008, the Chief Financial
327 Officer may adjust the annual rate of compensation for inflation
328 using the change in the December-to-December “Consumer Price
329 Index for All Urban Consumers” of the Bureau of Labor Statistics
330 of the Department of Labor;
331 (b) A waiver of tuition and fees for up to 120 hours of
332 instruction at any career center established under s. 1001.44,
333 any community college as defined in s. 1000.21(3), or any state
334 university as defined in s. 1000.21(6), if the wrongfully
335 incarcerated person meets and maintains the regular admission
336 requirements of such career center, community college, or state
337 university; remains registered at such educational institution;
338 and makes satisfactory academic progress as defined by the
339 educational institution in which the wrongfully incarcerated
340 person claimant is enrolled;
341 (c) The amount of any fine, penalty, or court costs imposed
342 and paid by the wrongfully incarcerated person;
343 (d) The amount of any reasonable attorney’s fees and
344 expenses incurred and paid by the wrongfully incarcerated person
345 in connection with all criminal proceedings and appeals
346 regarding the wrongful conviction, to be calculated by the
347 department based upon the supporting documentation submitted as
348 specified in s. 961.05; and
349 (e) Notwithstanding any provision to the contrary in s.
350 943.0585, immediate administrative expunction of the wrongfully
351 incarcerated person’s criminal record resulting from his or her
352 wrongful arrest, wrongful conviction, and wrongful
353 incarceration. The Department of Legal Affairs and the
354 Department of Law Enforcement shall, upon a determination that a
355 person claimant is entitled to compensation, immediately take
356 all action necessary to administratively expunge the person's
357 claimant’s criminal record arising from his or her wrongful
358 arrest, wrongful conviction, and wrongful incarceration. All
359 fees for this process shall be waived.
360
361 The total compensation awarded under paragraphs (a), (c), and
362 (d) may not exceed $2 million. No further award for attorney’s
363 fees, lobbying fees, costs, or other similar expenses shall be
364 made by the state.
365 (2) In calculating monetary compensation under paragraph
366 (1)(a), a wrongfully incarcerated person who is placed on parole
367 or community supervision while serving the sentence resulting
368 from the wrongful conviction and who commits anything less than
369 a felony law violation that results in revocation of the parole
370 or community supervision is eligible for compensation for the
371 total number of years incarcerated. A wrongfully incarcerated
372 person who commits a felony law violation that results in
373 revocation of the parole or community supervision is ineligible
374 for any compensation under subsection (1).
375 (3) Within 15 calendar days after issuing notice to the
376 wrongfully incarcerated person claimant that his or her claim
377 satisfies all of the requirements under this act, the department
378 shall notify the Chief Financial Officer to draw a warrant from
379 the General Revenue Fund or another source designated by the
380 Legislature in law for the purchase of an annuity for the
381 wrongfully incarcerated person claimant based on the total
382 amount determined by the department under this act.
383 (4) The Chief Financial Officer shall purchase an annuity
384 on behalf of the wrongfully incarcerated person claimant for a
385 term of not less than 10 years. The terms of the annuity shall:
386 (a) Provide that the annuity may not be sold, discounted,
387 or used as security for a loan or mortgage by the wrongfully
388 incarcerated person applicant.
389 (b) Contain beneficiary provisions for the continued
390 disbursement of the annuity in the event of the death of the
391 wrongfully incarcerated person applicant.
392 (5) Before the Chief Financial Officer draws the warrant
393 for the purchase of the annuity, the wrongfully incarcerated
394 person claimant must sign a release and waiver on behalf of the
395 wrongfully incarcerated person claimant and his or her heirs,
396 successors, and assigns, forever releasing the state or any
397 agency, instrumentality, or any political subdivision thereof,
398 or any other entity subject to the provisions of s. 768.28, from
399 all present or future claims that the wrongfully incarcerated
400 person claimant or his or her heirs, successors, or assigns may
401 have against such entities arising out of the facts in
402 connection with the wrongful conviction for which compensation
403 is being sought under the act. The release and waiver must be
404 provided to the department prior to the issuance of the warrant
405 by the Chief Financial Officer.
406 (6)(a) A wrongfully incarcerated person may not submit an
407 application for compensation under this act if the person has a
408 civil action lawsuit pending against the state or any agency,
409 instrumentality, or any political subdivision thereof, or any
410 other entity subject to the provisions of s. 768.28, in state or
411 federal court requesting compensation arising out of the facts
412 in connection with the wrongfully incarcerated person’s
413 claimant’s conviction and incarceration.
414 (b) A wrongfully incarcerated person may not submit an
415 application for compensation under this act if the person has
416 received a prior judgment in his or her favor in a civil action
417 against the state or any agency, instrumentality, or any
418 political subdivision thereof, or against any other entity
419 subject to s. 768.28, in state or federal court arising out of
420 the wrongfully incarcerated person's conviction and
421 incarceration.
422 (c)(b) A wrongfully incarcerated person may not submit an
423 application for compensation under this act if the person is the
424 subject of a claim bill pending for claims arising out of the
425 facts in connection with the wrongfully incarcerated person’s
426 claimant’s conviction and incarceration.
427 (d)(c) Once an application is filed under this act, a
428 wrongfully incarcerated person may not pursue recovery under a
429 claim bill until the final disposition of the application.
430 (e)(d) Any amount awarded under this act is intended to
431 provide the sole compensation for any and all present and future
432 claims arising out of the facts in connection with the
433 wrongfully incarcerated person’s claimant’s conviction and
434 incarceration. Upon notification by the department that an
435 application meets the requirements of this act, a wrongfully
436 incarcerated person may not recover under a claim bill.
437 (f)(e) Any compensation awarded under a claim bill shall be
438 the sole redress for claims arising out of the facts in
439 connection with the wrongfully incarcerated person's claimant’s
440 conviction and incarceration and, upon any award of compensation
441 to a wrongfully incarcerated person under a claim bill, the
442 person may not receive compensation under this act.
443 (7) Any payment made under this act does not constitute a
444 waiver of any defense of sovereign immunity or an increase in
445 the limits of liability on behalf of the state or any person
446 subject to the provisions of s. 768.28 or other law.
447 Section 5. This act shall take effect July 1, 2009.