Florida Senate - 2010 SB 654
By Senator Joyner
18-00014A-10 2010654__
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 a failure to submit
12 fingerprints within the prescribed timeframe does not
13 warrant denial of compensation under the act;
14 providing procedures for taking and submitting
15 fingerprints; requiring that the results of the
16 criminal history records checks be submitted to the
17 clerk of the court; providing for use of the results
18 by the court; specifying who will pay for the criminal
19 history records checks; amending s. 961.05, F.S.;
20 eliminating the requirement that a wrongfully
21 incarcerated person provide certain court records and
22 documentation from the Department of Corrections along
23 with an application for compensation; requiring the
24 Department of Legal Affairs to request certain records
25 from the clerk of the court and the Department of
26 Corrections; amending s. 961.06, F.S.; precluding
27 submission of an application for compensation if the
28 wrongfully incarcerated person has received a prior
29 favorable judgment from a civil action arising out of
30 the wrongful incarceration; providing an effective
31 date.
32
33 Be It Enacted by the Legislature of the State of Florida:
34
35 Section 1. Section 961.02, Florida Statutes, is amended to
36 read:
37 961.02 Definitions.—As used in ss. 961.01-961.07, the 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 the
59 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 incarcerated
69 person; determination of eligibility for compensation.—
70 (1)(a) In order to meet the definition of a “wrongfully
71 incarcerated person” and “eligible for compensation,” upon entry
72 of an order, based upon exonerating evidence, vacating a
73 conviction and sentence, a person must set forth the claim of
74 wrongful incarceration under oath and with particularity by
75 filing a petition with the original sentencing court, with a
76 copy of the petition and proper notice to the prosecuting
77 authority in the underlying felony for which the person was
78 incarcerated. At a minimum, the petition must:
79 1. State that clear and convincing verifiable and
80 substantial evidence of actual innocence exists and state with
81 particularity the nature and significance of the clear and
82 convincing verifiable and substantial evidence of actual
83 innocence; and
84 2. State that the person is not disqualified, under the
85 provisions of s. 961.04, from seeking compensation under this
86 act.
87 (b) The person must file the petition with the court:
88 1. Within 90 days after the order vacating a conviction and
89 sentence becomes final if the person’s conviction and sentence
90 is vacated on or after July 1, 2008.
91 2. By July 1, 2010, if the person’s conviction and sentence
92 was vacated by an order that became final prior to July 1, 2008.
93 (c)1. Within 30 days after filing the petition, the
94 petitioner must submit fingerprints for a state and national
95 criminal history records check. Failure to satisfy this
96 subparagraph within the prescribed timeframe is not grounds for
97 denial of compensation under this act.
98 2. The clerk of the court shall inform the petitioner of
99 the process for having his or her fingerprints taken and
100 submitted and provide information concerning law enforcement
101 agencies or service providers that are authorized to submit
102 fingerprints electronically to the Department of Law
103 Enforcement.
104 3. The petitioner’s fingerprints must be taken in a manner
105 approved by the Department of Law Enforcement and shall be
106 submitted electronically to the Department of Law Enforcement
107 for state processing for a criminal history records check. The
108 Department of Law Enforcement shall submit the fingerprints to
109 the Federal Bureau of Investigation for national processing. The
110 Department of Law Enforcement shall submit the results of the
111 state and national records check to the clerk of the court. The
112 court shall consider the results in evaluating whether the
113 petitioner is eligible for compensation under s. 961.04.
114 4. The petitioner may not be charged for the cost of
115 conducting the state and national criminal history records
116 checks required under this paragraph. The cost of state and
117 national processing shall be absorbed by the Department of Law
118 Enforcement.
119 (2) The prosecuting authority must respond to the petition
120 within 30 days. The prosecuting authority may respond:
121 (a) By certifying to the court that, based upon the
122 petition and verifiable and substantial evidence of actual
123 innocence, no further criminal proceedings in the case at bar
124 can or will be initiated by the prosecuting authority, and that
125 the prosecuting authority does not contest no questions of fact
126 remain as to the petitioner’s claim of actual innocence wrongful
127 incarceration, and that the petitioner is not ineligible from
128 seeking compensation under the provisions of s. 961.04; or
129 (b) By certifying to the court that questions of fact
130 remain as to the petitioner’s claim of actual innocence, and
131 that the prosecuting authority contests contesting the nature,
132 significance, or effect of the evidence of actual innocence, the
133 facts related to the petitioner’s alleged wrongful
134 incarceration, or whether the petitioner is ineligible from
135 seeking compensation under the provisions of s. 961.04.
136 (3) If the prosecuting authority certifies to the court
137 that it does not contest the petitioner’s claim of actual
138 innocence, and the court finds that the petitioner has proven
139 actual innocence by clear and convincing evidence and is
140 eligible for compensation under s. 961.04 responds as set forth
141 in paragraph (2)(a), the original sentencing court, based upon
142 the evidence of actual innocence, the prosecuting authority’s
143 certification, and upon the court’s finding that the petitioner
144 has presented clear and convincing evidence that the petitioner
145 committed neither the act nor the offense that served as the
146 basis for the conviction and incarceration, and that the
147 petitioner did not aid, abet, or act as an accomplice to a
148 person who committed the act or offense, the original sentencing
149 court shall certify to the department that the petitioner is a
150 wrongfully incarcerated person who is eligible for compensation
151 as defined by this act. Based upon the prosecuting authority’s
152 certification, the court shall also certify to the department
153 that the petitioner is eligible for compensation under the
154 provisions of s. 961.04.
155 (4)(a) If the prosecuting authority contests the
156 petitioner’s claim of actual innocence responds as set forth in
157 paragraph (2)(b), the original sentencing court shall make a
158 determination from the pleadings and supporting documentation
159 whether, by a preponderance of the evidence, the petitioner is
160 eligible ineligible for compensation under the provisions of s.
161 961.04, regardless of his or her claim of wrongful
162 incarceration. If the court finds the petitioner ineligible
163 under the provisions of s. 961.04, it shall dismiss the
164 petition.
165 (b) If the court determines that the petitioner is eligible
166 under s. 961.04 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 findings
197 and recommendation contained in the order of the administrative
198 law judge and, within 60 days, shall issue its own order
199 adopting or declining to adopt the findings and recommendation
200 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 and
219 recommendation recommendations of the administrative law judge
220 that the petitioner failed to prove actual innocence by clear
221 and convincing evidence and finds that the petitioner has met
222 his or her burden of proving actual innocence establishing by
223 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 the
262 criminal case number of the case or cases for which the person
263 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 sentence;
269 (d) Documentation demonstrating the length of the sentence
270 served, including documentation from the Department of
271 Corrections regarding the person’s admission into and release
272 from the custody of the Department of Corrections;
273 (b)(e) Positive proof of identification, including two full
274 sets of fingerprints administered by a law enforcement agency
275 and a current form of photo identification, demonstrating that
276 the person seeking compensation is the same individual who was
277 wrongfully incarcerated;
278 (c)(f) All supporting documentation of any fine, penalty,
279 or court costs imposed and paid by the wrongfully incarcerated
280 person as described in s. 961.06(1)(c);
281 (d)(g) All supporting documentation of any reasonable
282 attorney’s fees and expenses as described in s. 961.06(1)(d);
283 and
284 (e)(h) Any other documentation, evidence, or information
285 required by rules adopted by the department.
286 (5) Upon receipt of the application, the department shall:
287 forward one full set of fingerprints of the applicant to the
288 Department of Law Enforcement for statewide criminal records
289 checks. The Department of Law Enforcement shall forward the
290 second set of fingerprints to the Federal Bureau of
291 Investigation for national criminal records checks. The results
292 of the state and national records checks shall be submitted to
293 the department.
294 (a) Request that the clerk of the court provide a certified
295 copy of the order vacating the conviction and sentence and
296 certified copies of the original judgment and sentence. The
297 clerk shall provide these records at no charge.
298 (b) Request that the Department of Corrections provide
299 documentation demonstrating the length of the sentence served,
300 including the dates of the wrongfully incarcerated person’s
301 admission into and release from the custody of the Department of
302 Corrections. The Department of Corrections shall provide this
303 documentation at no charge.
304 (c)(6) Upon receipt of an application, the department shall
305 Examine the application and notify the wrongfully incarcerated
306 person claimant within 30 calendar days of any errors or
307 omissions, and request any additional information relevant to
308 the review of the application. The wrongfully incarcerated
309 person claimant shall have 15 days after proper notification of
310 any existing errors or omissions to supplement the application.
311 The department may not deny an application for failure of the
312 wrongfully incarcerated person claimant to correct an error or
313 omission or supply additional information unless the department
314 timely notified the person claimant of such errors or omissions
315 or requested the additional information within the 30-day period
316 specified in this subsection. The department shall process and
317 review each completed application within 90 calendar days. Once
318 the department determines whether a claim for compensation meets
319 the requirements of this act, the department shall notify the
320 wrongfully incarcerated person claimant within 5 business days
321 of that determination.
322 (6)(7) If the department determines that a wrongfully
323 incarcerated person claimant meets the requirements of this act,
324 the wrongfully incarcerated person who is the subject of the
325 claim becomes entitled to compensation, subject to the
326 provisions in s. 961.06.
327 Section 4. Section 961.06, Florida Statutes, is amended to
328 read:
329 961.06 Compensation for wrongful incarceration.—
330 (1) Except as otherwise provided in this act and subject to
331 the limitations and procedures prescribed in this section, a
332 person who is found to be entitled to compensation under the
333 provisions of this act is entitled to:
334 (a) Monetary compensation for wrongful incarceration, which
335 shall be calculated at a rate of $50,000 for each year of
336 wrongful incarceration, prorated as necessary to account for a
337 portion of a year. For persons found to be wrongfully
338 incarcerated after December 31, 2008, the Chief Financial
339 Officer may adjust the annual rate of compensation for inflation
340 using the change in the December-to-December “Consumer Price
341 Index for All Urban Consumers” of the Bureau of Labor Statistics
342 of the Department of Labor;
343 (b) A waiver of tuition and fees for up to 120 hours of
344 instruction at any career center established under s. 1001.44,
345 any community college as defined in s. 1000.21(3), or any state
346 university as defined in s. 1000.21(6), if the wrongfully
347 incarcerated person meets and maintains the regular admission
348 requirements of such career center, community college, or state
349 university; remains registered at such educational institution;
350 and makes satisfactory academic progress as defined by the
351 educational institution in which the wrongfully incarcerated
352 person claimant is enrolled;
353 (c) The amount of any fine, penalty, or court costs imposed
354 and paid by the wrongfully incarcerated person;
355 (d) The amount of any reasonable attorney’s fees and
356 expenses incurred and paid by the wrongfully incarcerated person
357 in connection with all criminal proceedings and appeals
358 regarding the wrongful conviction, to be calculated by the
359 department based upon the supporting documentation submitted as
360 specified in s. 961.05; and
361 (e) Notwithstanding any provision to the contrary in s.
362 943.0585, immediate administrative expunction of the wrongfully
363 incarcerated person’s criminal record resulting from his or her
364 wrongful arrest, wrongful conviction, and wrongful
365 incarceration. The Department of Legal Affairs and the
366 Department of Law Enforcement shall, upon a determination that a
367 person claimant is entitled to compensation, immediately take
368 all action necessary to administratively expunge the person’s
369 claimant’s criminal record arising from his or her wrongful
370 arrest, wrongful conviction, and wrongful incarceration. All
371 fees for this process shall be waived.
372
373 The total compensation awarded under paragraphs (a), (c), and
374 (d) may not exceed $2 million. No further award for attorney’s
375 fees, lobbying fees, costs, or other similar expenses shall be
376 made by the state.
377 (2) In calculating monetary compensation under paragraph
378 (1)(a), a wrongfully incarcerated person who is placed on parole
379 or community supervision while serving the sentence resulting
380 from the wrongful conviction and who commits anything less than
381 a felony law violation that results in revocation of the parole
382 or community supervision is eligible for compensation for the
383 total number of years incarcerated. A wrongfully incarcerated
384 person who commits a felony law violation that results in
385 revocation of the parole or community supervision is ineligible
386 for any compensation under subsection (1).
387 (3) Within 15 calendar days after issuing notice to the
388 wrongfully incarcerated person claimant that his or her claim
389 satisfies all of the requirements under this act, the department
390 shall notify the Chief Financial Officer to draw a warrant from
391 the General Revenue Fund or another source designated by the
392 Legislature in law for the purchase of an annuity for the
393 wrongfully incarcerated person claimant based on the total
394 amount determined by the department under this act.
395 (4) The Chief Financial Officer shall purchase an annuity
396 on behalf of the wrongfully incarcerated person claimant for a
397 term of not less than 10 years. The terms of the annuity shall:
398 (a) Provide that the annuity may not be sold, discounted,
399 or used as security for a loan or mortgage by the wrongfully
400 incarcerated person applicant.
401 (b) Contain beneficiary provisions for the continued
402 disbursement of the annuity in the event of the death of the
403 wrongfully incarcerated person applicant.
404 (5) Before the Chief Financial Officer draws the warrant
405 for the purchase of the annuity, the wrongfully incarcerated
406 person claimant must sign a release and waiver on behalf of the
407 wrongfully incarcerated person claimant and his or her heirs,
408 successors, and assigns, forever releasing the state or any
409 agency, instrumentality, or any political subdivision thereof,
410 or any other entity subject to the provisions of s. 768.28, from
411 all present or future claims that the wrongfully incarcerated
412 person claimant or his or her heirs, successors, or assigns may
413 have against such entities arising out of the facts in
414 connection with the wrongful conviction for which compensation
415 is being sought under the act. The release and waiver must be
416 provided to the department prior to the issuance of the warrant
417 by the Chief Financial Officer.
418 (6)(a) A wrongfully incarcerated person may not submit an
419 application for compensation under this act if the person has a
420 civil action lawsuit pending against the state or any agency,
421 instrumentality, or any political subdivision thereof, or any
422 other entity subject to the provisions of s. 768.28, in state or
423 federal court requesting compensation arising out of the facts
424 in connection with the wrongfully incarcerated person’s
425 claimant’s conviction and incarceration.
426 (b) A wrongfully incarcerated person may not submit an
427 application for compensation under this act if the person has
428 received a prior judgment in his or her favor in a civil action
429 against the state or any agency, instrumentality, or any
430 political subdivision thereof, or against any other entity
431 subject to s. 768.28, in state or federal court arising out of
432 the wrongfully incarcerated person’s conviction and
433 incarceration.
434 (c)(b) A wrongfully incarcerated person may not submit an
435 application for compensation under this act if the person is the
436 subject of a claim bill pending for claims arising out of the
437 facts in connection with the wrongfully incarcerated person’s
438 claimant’s conviction and incarceration.
439 (d)(c) Once an application is filed under this act, a
440 wrongfully incarcerated person may not pursue recovery under a
441 claim bill until the final disposition of the application.
442 (e)(d) Any amount awarded under this act is intended to
443 provide the sole compensation for any and all present and future
444 claims arising out of the facts in connection with the
445 wrongfully incarcerated person’s claimant’s conviction and
446 incarceration. Upon notification by the department that an
447 application meets the requirements of this act, a wrongfully
448 incarcerated person may not recover under a claim bill.
449 (f)(e) Any compensation awarded under a claim bill shall be
450 the sole redress for claims arising out of the facts in
451 connection with the wrongfully incarcerated person’s claimant’s
452 conviction and incarceration and, upon any award of compensation
453 to a wrongfully incarcerated person under a claim bill, the
454 person may not receive compensation under this act.
455 (7) Any payment made under this act does not constitute a
456 waiver of any defense of sovereign immunity or an increase in
457 the limits of liability on behalf of the state or any person
458 subject to the provisions of s. 768.28 or other law.
459 Section 5. This act shall take effect July 1, 2010.