Florida Senate - 2009                             CS for SB 2408
       
       
       
       By the Committee on Judiciary; and Senator Joyner
       
       
       
       
       590-04067-09                                          20092408c1
    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 that failure to submit fingerprints
   12         within the prescribed timeframe does not warrant
   13         denial of compensation under the act; providing
   14         procedures for taking and submitting fingerprints;
   15         requiring that the results of the criminal history
   16         records checks be submitted to the clerk of the court;
   17         providing for use of the results by the court;
   18         specifying who will pay for the criminal history
   19         records checks; amending s. 961.05, F.S.; eliminating
   20         the requirement that a wrongfully incarcerated person
   21         provide certain court records and documentation from
   22         the Department of Corrections along with an
   23         application for compensation; requiring the Department
   24         of Legal Affairs to request certain records from the
   25         clerk of the court and the Department of Corrections;
   26         amending s. 961.06, F.S.; precluding submission of an
   27         application for compensation if the wrongfully
   28         incarcerated person has received a prior favorable
   29         judgment from a civil action arising out of the
   30         wrongful incarceration; providing an 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 term:
   37         (1) “Act” means the Victims of Wrongful Incarceration
   38  Compensation Act.
   39         (2)“Actual innocence” means that a person did not commit
   40  the act or the offense that served as the basis for the
   41  conviction and incarceration for which the person seeks
   42  compensation, and that the person did not aid, abet, or act as
   43  an accomplice to a person who committed the act or offense.
   44         (3)(2) “Department” means the Department of Legal Affairs.
   45         (4)(3) “Division” means the Division of Administrative
   46  Hearings.
   47         (5)(4) “Wrongfully incarcerated person” means a person
   48  whose felony conviction and sentence have been vacated by a
   49  court of competent jurisdiction and, with respect to whom
   50  pursuant to the requirements of s. 961.03, the original
   51  sentencing court has issued its order finding that the person
   52  has proven actual innocence by clear and convincing evidence
   53  neither committed the act nor the offense that served as the
   54  basis for the conviction and incarceration and that the person
   55  did not aid, abet, or act as an accomplice or accessory to a
   56  person who committed the act or offense.
   57         (6)(5) “Eligible for compensation” means a person meets the
   58  definition of “wrongfully incarcerated person” and is not
   59  disqualified from seeking compensation under the criteria
   60  prescribed in s. 961.04.
   61         (7)(6) “Entitled to compensation” means a person meets the
   62  definition of “eligible for compensation” and satisfies the
   63  application requirements prescribed in s. 961.05, and may
   64  receive compensation pursuant to s. 961.06.
   65         Section 2. Section 961.03, Florida Statutes, is amended to
   66  read:
   67         961.03 Determination of status as a wrongfully incarcerated
   68  person; determination of eligibility for compensation.—
   69         (1)(a) In order to meet the definition of a “wrongfully
   70  incarcerated person” and “eligible for compensation,” upon entry
   71  of an order, based upon exonerating evidence, vacating a
   72  conviction and sentence, a person must set forth the claim of
   73  wrongful incarceration under oath and with particularity by
   74  filing a petition with the original sentencing court, with a
   75  copy of the petition and proper notice to the prosecuting
   76  authority in the underlying felony for which the person was
   77  incarcerated. At a minimum, the petition must:
   78         1. State that clear and convincing verifiable and
   79  substantial evidence of actual innocence exists and state with
   80  particularity the nature and significance of the clear and
   81  convincing verifiable and substantial evidence of actual
   82  innocence; and
   83         2. State that the person is not disqualified, under the
   84  provisions of s. 961.04, from seeking compensation under this
   85  act.
   86         (b) The person must file the petition with the court:
   87         1. Within 90 days after the order vacating a conviction and
   88  sentence becomes final if the person’s conviction and sentence
   89  is vacated on or after July 1, 2008.
   90         2. By July 1, 2010, if the person’s conviction and sentence
   91  was vacated by an order that became final prior to July 1, 2008.
   92         (c)1.Within 30 days after filing the petition, the
   93  petitioner must submit fingerprints for a state and national
   94  criminal history records check. Failure to satisfy this
   95  subparagraph within the prescribed timeframe is not grounds for
   96  denial of compensation under this act.
   97         2.The clerk of the court shall inform the petitioner of
   98  the process for having his or her fingerprints taken and
   99  submitted and provide information concerning law enforcement
  100  agencies or service providers that are authorized to submit
  101  fingerprints electronically to the Department of Law
  102  Enforcement.
  103         3.The petitioners fingerprints shall be taken in a manner
  104  approved by the Department of Law Enforcement and shall be
  105  submitted electronically to the Department of Law Enforcement
  106  for state processing for a criminal history records check. The
  107  Department of Law Enforcement shall submit the fingerprints to
  108  the Federal Bureau of Investigation for national processing. The
  109  Department of Law Enforcement shall submit the results of the
  110  state and national records check to the clerk of the court. The
  111  court shall consider the results in evaluating whether the
  112  petitioner is eligible for compensation under s. 961.04.
  113         4.The petitioner may not be charged for the cost of
  114  conducting the state and national criminal history records
  115  checks required under this paragraph. The cost of state and
  116  national processing shall be absorbed by the Department of Law
  117  Enforcement.
  118         (2) The prosecuting authority must respond to the petition
  119  within 30 days. The prosecuting authority may respond:
  120         (a) By certifying to the court that, based upon the
  121  petition and verifiable and substantial evidence of actual
  122  innocence, no further criminal proceedings in the case at bar
  123  can or will be initiated by the prosecuting authority, and that
  124  the prosecuting authority does not contest no questions of fact
  125  remain as to the petitioner’s actual innocence wrongful
  126  incarceration, and that the petitioner is not ineligible from
  127  seeking compensation under the provisions of s. 961.04; or
  128         (b) By certifying to the court that questions of fact
  129  remain as to the petitioner’s actual innocence, and that the
  130  prosecuting authority contests contesting the nature,
  131  significance, or effect of the evidence of actual innocence, the
  132  facts related to the petitioners alleged wrongful
  133  incarceration, or whether the petitioner is ineligible from
  134  seeking compensation under the provisions of s. 961.04.
  135         (3) If the prosecuting authority responds as set forth in
  136  paragraph (2)(a), the original sentencing court, based upon the
  137  prosecuting authoritys certification and the courts finding
  138  that the petitioner has proven actual innocence by clear and
  139  convincing evidence and that the petitioner is eligible for
  140  compensation under s. 961.04 evidence of actual innocence, the
  141  prosecuting authoritys certification, and upon the courts
  142  finding that the petitioner has presented clear and convincing
  143  evidence that the petitioner committed neither the act nor the
  144  offense that served as the basis for the conviction and
  145  incarceration, and that the petitioner did not aid, abet, or act
  146  as an accomplice to a person who committed the act or offense,
  147  shall certify to the department that the petitioner is a
  148  wrongfully incarcerated person who is eligible for compensation
  149  as defined by this act. Based upon the prosecuting authoritys
  150  certification, the court shall also certify to the department
  151  that the petitioner is eligible for compensation under the
  152  provisions of s. 961.04.
  153         (4)(a) If the prosecuting authority responds as set forth
  154  in paragraph (2)(b), the original sentencing court shall make a
  155  determination from the pleadings and supporting documentation
  156  whether, by a preponderance of the evidence, the petitioner is
  157  eligible ineligible for compensation under the provisions of s.
  158  961.04, regardless of his or her claim of wrongful
  159  incarceration. If the court finds the petitioner ineligible
  160  under the provisions of s. 961.04, it shall dismiss the
  161  petition.
  162         (b) If the prosecuting authority responds as set forth in
  163  paragraph (2)(b), and the court determines that the petitioner
  164  is eligible under the provisions of s. 961.04, but the
  165  prosecuting authority contests the nature, significance, or
  166  effect of the evidence of actual innocence, or the facts related
  167  to the petitioners alleged wrongful incarceration, the court
  168  shall set forth its findings and transfer the petition to the
  169  division for findings of fact and a recommended determination of
  170  whether the petitioner has proven actual innocence established
  171  that he or she is a wrongfully incarcerated person who is
  172  eligible for compensation under this act.
  173         (5) The petitioner must prove actual innocence before the
  174  administrative law judge by clear and convincing evidence. Any
  175  questions of fact, the nature, significance or effect of the
  176  evidence of actual innocence, and the petitioners eligibility
  177  for compensation under this act must be established by clear and
  178  convincing evidence by the petitioner before an administrative
  179  law judge.
  180         (6)(a) Pursuant to division rules and any additional rules
  181  set forth by the administrative law judge, a hearing shall be
  182  conducted no later than 120 days after the transfer of the
  183  petition to the division.
  184         (b) The prosecuting authority shall appear for the purpose
  185  of contesting, as necessary, the facts, the nature, and
  186  significance or effect of the evidence of actual innocence as
  187  presented by the petitioner.
  188         (c) No later than 45 days after the adjournment of the
  189  hearing, the administrative law judge shall issue an order
  190  setting forth his or her findings and recommendation and shall
  191  file the order with the original sentencing court.
  192         (d) The original sentencing court shall review the findings
  193  and recommendation contained in the order of the administrative
  194  law judge and, within 60 days, shall issue its own order
  195  adopting or declining to adopt the findings and recommendation
  196  of the administrative law judge.
  197         (7) If the court concludes that the petitioner is a
  198  wrongfully incarcerated person as defined by this act and is
  199  eligible for compensation as defined in this act, the court
  200  shall include in its order a certification to the department
  201  that:
  202         (a)1. The order of the administrative law judge finds that
  203  the petitioner has met his or her burden of proving actual
  204  innocence establishing by clear and convincing evidence that the
  205  petitioner committed neither the act nor the offense that served
  206  as the basis for the conviction and incarceration and that the
  207  petitioner did not aid, abet, or act as an accomplice to a
  208  person who committed the act or offense;
  209         2.The findings and recommendation of the administrative
  210  law judge on which its order is based are supported by
  211  competent, substantial evidence; and
  212         3.The petitioner is a wrongfully incarcerated person who
  213  is eligible for compensation; or
  214         (b)2.That The court has declined to adopt the findings and
  215  recommendation recommendations of the administrative law judge
  216  that the petitioner failed to prove actual innocence by clear
  217  and convincing evidence and finds that the petitioner has met
  218  his or her burden of proving actual innocence establishing by
  219  clear and convincing evidence, and that the petitioner is a
  220  wrongfully incarcerated person who is eligible for compensation.
  221  that the petitioner committed neither the act nor the offense
  222  that served as the basis for the conviction and incarceration
  223  and that the petitioner did not aid, abet, or act as an
  224  accomplice to a person who committed the act or offense; and
  225         (b)The original sentencing court determines the findings
  226  and recommendations on which its order is based are supported by
  227  competent, substantial evidence.
  228         (8) The establishment of the method by which a person may
  229  seek the status of a wrongfully incarcerated person and a
  230  finding as to eligibility for compensation under this act in no
  231  way creates any rights of due process beyond those set forth in
  232  this act herein, nor is there created any right to further
  233  petition or appeal beyond the scope of the method set forth in
  234  this act herein.
  235         Section 3. Section 961.05, Florida Statutes, is amended to
  236  read:
  237         961.05 Application for compensation for wrongful
  238  incarceration; administrative expunction; determination of
  239  entitlement to compensation.—
  240         (1) A wrongfully incarcerated person who is eligible for
  241  compensation as defined in this act must initiate his or her
  242  application for compensation as required in this section no more
  243  than 2 years after the original sentencing court enters its
  244  order finding that the person meets the definition of a
  245  wrongfully incarcerated person and is eligible for compensation
  246  as defined in this act.
  247         (2) A wrongfully incarcerated person who is eligible for
  248  compensation under the act must apply to the Department of Legal
  249  Affairs. No estate of, or personal representative for, a
  250  decedent is entitled to apply on behalf of the decedent for
  251  compensation for wrongful incarceration.
  252         (3) The Department of Legal Affairs may adopt rules
  253  regarding the forms and procedures related to applications for
  254  compensation under this act the Victims of Wrongful
  255  Incarceration Compensation Act.
  256         (4) The application must include:
  257         (a) Identification of the original sentencing court and the
  258  criminal case number of the case or cases for which the person
  259  was wrongfully incarcerated A certified copy of the order
  260  vacating the conviction and sentence;
  261         (b)A certified copy of the original sentencing courts
  262  order finding the claimant to be a wrongfully incarcerated
  263  person who is eligible for compensation under this act;
  264         (c)Certified copies of the original judgment and sentence;
  265         (d)Documentation demonstrating the length of the sentence
  266  served, including documentation from the Department of
  267  Corrections regarding the persons admission into and release
  268  from the custody of the Department of Corrections;
  269         (b)(e) Positive proof of identification, including two full
  270  sets of fingerprints administered by a law enforcement agency
  271  and a current form of photo identification, demonstrating that
  272  the person seeking compensation is the same individual who was
  273  wrongfully incarcerated;
  274         (c)(f) All supporting documentation of any fine, penalty,
  275  or court costs imposed and paid by the wrongfully incarcerated
  276  person as described in s. 961.06(1)(c);
  277         (d)(g) All supporting documentation of any reasonable
  278  attorney’s fees and expenses as described in s. 961.06(1)(d);
  279  and
  280         (e)(h) Any other documentation, evidence, or information
  281  required by rules adopted by the department.
  282         (5) Upon receipt of the application, the department shall:
  283  forward one full set of fingerprints of the applicant to the
  284  Department of Law Enforcement for statewide criminal records
  285  checks. The Department of Law Enforcement shall forward the
  286  second set of fingerprints to the Federal Bureau of
  287  Investigation for national criminal records checks. The results
  288  of the state and national records checks shall be submitted to
  289  the department.
  290         (a)Request that the clerk of the court provide a certified
  291  copy of the order vacating the conviction and sentence and
  292  certified copies of the original judgment and sentence. The
  293  clerk shall provide these records at no charge.
  294         (b)Request that the Department of Corrections provide
  295  documentation demonstrating the length of the sentence served,
  296  including the dates of the wrongfully incarcerated person’s
  297  admission into and release from the custody of the Department of
  298  Corrections. The Department of Corrections shall provide this
  299  documentation at no charge.
  300         (c)(6)Upon receipt of an application, the department shall
  301  Examine the application and notify the wrongfully incarcerated
  302  person claimant within 30 calendar days of any errors or
  303  omissions, and request any additional information relevant to
  304  the review of the application. The wrongfully incarcerated
  305  person claimant shall have 15 days after proper notification of
  306  any existing errors or omissions to supplement the application.
  307  The department may not deny an application for failure of the
  308  wrongfully incarcerated person claimant to correct an error or
  309  omission or supply additional information unless the department
  310  timely notified the person claimant of such errors or omissions
  311  or requested the additional information within the 30-day period
  312  specified in this subsection. The department shall process and
  313  review each completed application within 90 calendar days. Once
  314  the department determines whether a claim for compensation meets
  315  the requirements of this act, the department shall notify the
  316  wrongfully incarcerated person claimant within 5 business days
  317  of that determination.
  318         (6)(7) If the department determines that a wrongfully
  319  incarcerated person claimant meets the requirements of this act,
  320  the wrongfully incarcerated person who is the subject of the
  321  claim becomes entitled to compensation, subject to the
  322  provisions in s. 961.06.
  323         Section 4. Section 961.06, Florida Statutes, is amended to
  324  read:
  325         961.06 Compensation for wrongful incarceration.—
  326         (1) Except as otherwise provided in this act and subject to
  327  the limitations and procedures prescribed in this section, a
  328  person who is found to be entitled to compensation under the
  329  provisions of this act is entitled to:
  330         (a) Monetary compensation for wrongful incarceration, which
  331  shall be calculated at a rate of $50,000 for each year of
  332  wrongful incarceration, prorated as necessary to account for a
  333  portion of a year. For persons found to be wrongfully
  334  incarcerated after December 31, 2008, the Chief Financial
  335  Officer may adjust the annual rate of compensation for inflation
  336  using the change in the December-to-December “Consumer Price
  337  Index for All Urban Consumers” of the Bureau of Labor Statistics
  338  of the Department of Labor;
  339         (b) A waiver of tuition and fees for up to 120 hours of
  340  instruction at any career center established under s. 1001.44,
  341  any community college as defined in s. 1000.21(3), or any state
  342  university as defined in s. 1000.21(6), if the wrongfully
  343  incarcerated person meets and maintains the regular admission
  344  requirements of such career center, community college, or state
  345  university; remains registered at such educational institution;
  346  and makes satisfactory academic progress as defined by the
  347  educational institution in which the wrongfully incarcerated
  348  person claimant is enrolled;
  349         (c) The amount of any fine, penalty, or court costs imposed
  350  and paid by the wrongfully incarcerated person;
  351         (d) The amount of any reasonable attorney’s fees and
  352  expenses incurred and paid by the wrongfully incarcerated person
  353  in connection with all criminal proceedings and appeals
  354  regarding the wrongful conviction, to be calculated by the
  355  department based upon the supporting documentation submitted as
  356  specified in s. 961.05; and
  357         (e) Notwithstanding any provision to the contrary in s.
  358  943.0585, immediate administrative expunction of the wrongfully
  359  incarcerated person’s criminal record resulting from his or her
  360  wrongful arrest, wrongful conviction, and wrongful
  361  incarceration. The Department of Legal Affairs and the
  362  Department of Law Enforcement shall, upon a determination that a
  363  person claimant is entitled to compensation, immediately take
  364  all action necessary to administratively expunge the person’s
  365  claimants criminal record arising from his or her wrongful
  366  arrest, wrongful conviction, and wrongful incarceration. All
  367  fees for this process shall be waived.
  368  
  369  The total compensation awarded under paragraphs (a), (c), and
  370  (d) may not exceed $2 million. No further award for attorney’s
  371  fees, lobbying fees, costs, or other similar expenses shall be
  372  made by the state.
  373         (2) In calculating monetary compensation under paragraph
  374  (1)(a), a wrongfully incarcerated person who is placed on parole
  375  or community supervision while serving the sentence resulting
  376  from the wrongful conviction and who commits anything less than
  377  a felony law violation that results in revocation of the parole
  378  or community supervision is eligible for compensation for the
  379  total number of years incarcerated. A wrongfully incarcerated
  380  person who commits a felony law violation that results in
  381  revocation of the parole or community supervision is ineligible
  382  for any compensation under subsection (1).
  383         (3) Within 15 calendar days after issuing notice to the
  384  wrongfully incarcerated person claimant that his or her claim
  385  satisfies all of the requirements under this act, the department
  386  shall notify the Chief Financial Officer to draw a warrant from
  387  the General Revenue Fund or another source designated by the
  388  Legislature in law for the purchase of an annuity for the
  389  wrongfully incarcerated person claimant based on the total
  390  amount determined by the department under this act.
  391         (4) The Chief Financial Officer shall purchase an annuity
  392  on behalf of the wrongfully incarcerated person claimant for a
  393  term of not less than 10 years. The terms of the annuity shall:
  394         (a) Provide that the annuity may not be sold, discounted,
  395  or used as security for a loan or mortgage by the wrongfully
  396  incarcerated person applicant.
  397         (b) Contain beneficiary provisions for the continued
  398  disbursement of the annuity in the event of the death of the
  399  wrongfully incarcerated person applicant.
  400         (5) Before the Chief Financial Officer draws the warrant
  401  for the purchase of the annuity, the wrongfully incarcerated
  402  person claimant must sign a release and waiver on behalf of the
  403  wrongfully incarcerated person claimant and his or her heirs,
  404  successors, and assigns, forever releasing the state or any
  405  agency, instrumentality, or any political subdivision thereof,
  406  or any other entity subject to the provisions of s. 768.28, from
  407  all present or future claims that the wrongfully incarcerated
  408  person claimant or his or her heirs, successors, or assigns may
  409  have against such entities arising out of the facts in
  410  connection with the wrongful conviction for which compensation
  411  is being sought under the act. The release and waiver must be
  412  provided to the department prior to the issuance of the warrant
  413  by the Chief Financial Officer.
  414         (6)(a) A wrongfully incarcerated person may not submit an
  415  application for compensation under this act if the person has a
  416  civil action lawsuit pending against the state or any agency,
  417  instrumentality, or any political subdivision thereof, or any
  418  other entity subject to the provisions of s. 768.28, in state or
  419  federal court requesting compensation arising out of the facts
  420  in connection with the wrongfully incarcerated persons
  421  claimants conviction and incarceration.
  422         (b)A wrongfully incarcerated person may not submit an
  423  application for compensation under this act if the person has
  424  received a prior judgment in his or her favor in a civil action
  425  against the state or any agency, instrumentality, or any
  426  political subdivision thereof, or against any other entity
  427  subject to s. 768.28, in state or federal court arising out of
  428  the wrongfully incarcerated person’s conviction and
  429  incarceration.
  430         (c)(b) A wrongfully incarcerated person may not submit an
  431  application for compensation under this act if the person is the
  432  subject of a claim bill pending for claims arising out of the
  433  facts in connection with the wrongfully incarcerated persons
  434  claimants conviction and incarceration.
  435         (d)(c) Once an application is filed under this act, a
  436  wrongfully incarcerated person may not pursue recovery under a
  437  claim bill until the final disposition of the application.
  438         (e)(d) Any amount awarded under this act is intended to
  439  provide the sole compensation for any and all present and future
  440  claims arising out of the facts in connection with the
  441  wrongfully incarcerated persons claimants conviction and
  442  incarceration. Upon notification by the department that an
  443  application meets the requirements of this act, a wrongfully
  444  incarcerated person may not recover under a claim bill.
  445         (f)(e) Any compensation awarded under a claim bill shall be
  446  the sole redress for claims arising out of the facts in
  447  connection with the wrongfully incarcerated person’s claimants
  448  conviction and incarceration and, upon any award of compensation
  449  to a wrongfully incarcerated person under a claim bill, the
  450  person may not receive compensation under this act.
  451         (7) Any payment made under this act does not constitute a
  452  waiver of any defense of sovereign immunity or an increase in
  453  the limits of liability on behalf of the state or any person
  454  subject to the provisions of s. 768.28 or other law.
  455         Section 5. This act shall take effect July 1, 2009.