Florida Senate - 2010                              CS for SB 654
       
       
       
       By the Committee on Criminal Justice; and Senator Joyner
       
       
       
       
       591-04776-10                                           2010654c1
    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.; providing for
   27         compensation of reasonable attorney’s fees and
   28         expenses, up to $50,000, incurred for pursuing
   29         compensation for wrongful incarceration; directing the
   30         Chief Financial Officer to remit payment of attorney’s
   31         fees directly to the attorney; precluding the attorney
   32         from receipt of additional fees from the wrongfully
   33         incarcerated person; requiring the Chief Financial
   34         Officer to draw a warrant to an insurance company or
   35         other financial institution authorized to issue
   36         annuity contracts to purchase an annuity selected by
   37         the wrongfully incarcerated person; authorizing the
   38         Chief Financial Officer to execute all necessary
   39         agreements to implement compensation and to maximize
   40         the benefit to the wrongfully incarcerated person;
   41         requiring the wrongfully incarcerated person to sign a
   42         waiver prior to the department’s approval of the
   43         application; precluding submission of an application
   44         for compensation if the wrongfully incarcerated person
   45         has received a prior favorable judgment from a civil
   46         action arising out of the wrongful incarceration;
   47         providing an effective date.
   48  
   49  Be It Enacted by the Legislature of the State of Florida:
   50  
   51         Section 1. Section 961.02, Florida Statutes, is amended to
   52  read:
   53         961.02 Definitions.—As used in ss. 961.01-961.07, the term:
   54         (1) “Act” means the Victims of Wrongful Incarceration
   55  Compensation Act.
   56         (2)“Actual innocence” means that a person did not commit
   57  the act or the offense that served as the basis for the
   58  conviction and incarceration for which the person seeks
   59  compensation, and that the person did not aid, abet, or act as
   60  an accomplice to a person who committed the act or offense.
   61         (3)(2) “Department” means the Department of Legal Affairs.
   62         (4)(3) “Division” means the Division of Administrative
   63  Hearings.
   64         (5)(4) “Wrongfully incarcerated person” means a person
   65  whose felony conviction and sentence have been vacated by a
   66  court of competent jurisdiction and, with respect to whom
   67  pursuant to the requirements of s. 961.03, the original
   68  sentencing court has issued its order finding that the person
   69  has proven actual innocence by clear and convincing evidence
   70  neither committed the act nor the offense that served as the
   71  basis for the conviction and incarceration and that the person
   72  did not aid, abet, or act as an accomplice or accessory to a
   73  person who committed the act or offense.
   74         (6)(5) “Eligible for compensation” means a person meets the
   75  definition of “wrongfully incarcerated person” and is not
   76  disqualified from seeking compensation under the criteria
   77  prescribed in s. 961.04.
   78         (7)(6) “Entitled to compensation” means a person meets the
   79  definition of “eligible for compensation” and satisfies the
   80  application requirements prescribed in s. 961.05, and may
   81  receive compensation pursuant to s. 961.06.
   82         Section 2. Section 961.03, Florida Statutes, is amended to
   83  read:
   84         961.03 Determination of status as a wrongfully incarcerated
   85  person; determination of eligibility for compensation.—
   86         (1)(a) In order to meet the definition of a “wrongfully
   87  incarcerated person” and “eligible for compensation,” upon entry
   88  of an order, based upon exonerating evidence, vacating a
   89  conviction and sentence, a person must set forth the claim of
   90  wrongful incarceration under oath and with particularity by
   91  filing a petition with the original sentencing court, with a
   92  copy of the petition and proper notice to the prosecuting
   93  authority in the underlying felony for which the person was
   94  incarcerated. At a minimum, the petition must:
   95         1. State that clear and convincing verifiable and
   96  substantial evidence of actual innocence exists and state with
   97  particularity the nature and significance of the clear and
   98  convincing verifiable and substantial evidence of actual
   99  innocence; and
  100         2. State that the person is not disqualified, under the
  101  provisions of s. 961.04, from seeking compensation under this
  102  act.
  103         (b) The person must file the petition with the court:
  104         1. Within 90 days after the order vacating a conviction and
  105  sentence becomes final if the person’s conviction and sentence
  106  is vacated on or after July 1, 2008.
  107         2. By July 1, 2010, if the person’s conviction and sentence
  108  was vacated by an order that became final prior to July 1, 2008.
  109         (c)1.Within 30 days after filing the petition, the
  110  petitioner must submit fingerprints for a state and national
  111  criminal history records check. Failure to satisfy this
  112  subparagraph within the prescribed timeframe is not grounds for
  113  denial of compensation under this act.
  114         2.The clerk of the court shall inform the petitioner of
  115  the process for having his or her fingerprints taken and
  116  submitted and provide information concerning law enforcement
  117  agencies or service providers that are authorized to submit
  118  fingerprints electronically to the Department of Law
  119  Enforcement.
  120         3.The petitioners fingerprints must be taken in a manner
  121  approved by the Department of Law Enforcement and shall be
  122  submitted electronically to the Department of Law Enforcement
  123  for state processing for a criminal history records check. The
  124  Department of Law Enforcement shall submit the fingerprints to
  125  the Federal Bureau of Investigation for national processing. The
  126  Department of Law Enforcement shall submit the results of the
  127  state and national records check to the clerk of the court. The
  128  court shall consider the results in evaluating whether the
  129  petitioner is eligible for compensation under s. 961.04.
  130         4.The petitioner may not be charged for the cost of
  131  conducting the state and national criminal history records
  132  checks required under this paragraph. The cost of state and
  133  national processing shall be absorbed by the Department of Law
  134  Enforcement.
  135         (2) The prosecuting authority must respond to the petition
  136  within 30 days. The prosecuting authority may respond:
  137         (a) By certifying to the court that, based upon the
  138  petition and verifiable and substantial evidence of actual
  139  innocence, no further criminal proceedings in the case at bar
  140  can or will be initiated by the prosecuting authority, and that
  141  the prosecuting authority does not contest no questions of fact
  142  remain as to the petitioner’s claim of actual innocence wrongful
  143  incarceration, and that the petitioner is not ineligible from
  144  seeking compensation under the provisions of s. 961.04; or
  145         (b) By certifying to the court that questions of fact
  146  remain as to the petitioner’s claim of actual innocence, and
  147  that the prosecuting authority contests contesting the nature,
  148  significance, or effect of the evidence of actual innocence, the
  149  facts related to the petitioners alleged wrongful
  150  incarceration, or whether the petitioner is ineligible from
  151  seeking compensation under the provisions of s. 961.04.
  152         (3) If the prosecuting authority certifies to the court
  153  that it does not contest the petitioner’s claim of actual
  154  innocence, and the court finds that the petitioner has proven
  155  actual innocence by clear and convincing evidence and is
  156  eligible for compensation under s. 961.04 responds as set forth
  157  in paragraph (2)(a), the original sentencing court, based upon
  158  the evidence of actual innocence, the prosecuting authoritys
  159  certification, and upon the courts finding that the petitioner
  160  has presented clear and convincing evidence that the petitioner
  161  committed neither the act nor the offense that served as the
  162  basis for the conviction and incarceration, and that the
  163  petitioner did not aid, abet, or act as an accomplice to a
  164  person who committed the act or offense, the original sentencing
  165  court shall certify to the department that the petitioner is a
  166  wrongfully incarcerated person who is eligible for compensation
  167  as defined by this act. Based upon the prosecuting authoritys
  168  certification, the court shall also certify to the department
  169  that the petitioner is eligible for compensation under the
  170  provisions of s. 961.04.
  171         (4)(a) If the prosecuting authority contests the
  172  petitioner’s claim of actual innocence responds as set forth in
  173  paragraph (2)(b), the original sentencing court shall make a
  174  determination from the pleadings and supporting documentation
  175  whether, by a preponderance of the evidence, the petitioner is
  176  eligible ineligible for compensation under the provisions of s.
  177  961.04, regardless of his or her claim of wrongful
  178  incarceration. If the court finds the petitioner ineligible
  179  under the provisions of s. 961.04, it shall dismiss the
  180  petition.
  181         (b) If the court determines that the petitioner is eligible
  182  under s. 961.04 prosecuting authority responds as set forth in
  183  paragraph (2)(b), and the court determines that the petitioner
  184  is eligible under the provisions of s. 961.04, but the
  185  prosecuting authority contests the nature, significance, or
  186  effect of the evidence of actual innocence, or the facts related
  187  to the petitioners alleged wrongful incarceration, the court
  188  shall set forth its findings and transfer the petition to the
  189  division for findings of fact and a recommended determination of
  190  whether the petitioner has proven actual innocence established
  191  that he or she is a wrongfully incarcerated person who is
  192  eligible for compensation under this act.
  193         (5) The petitioner must prove actual innocence before the
  194  administrative law judge by clear and convincing evidence. Any
  195  questions of fact, the nature, significance or effect of the
  196  evidence of actual innocence, and the petitioners eligibility
  197  for compensation under this act must be established by clear and
  198  convincing evidence by the petitioner before an administrative
  199  law judge.
  200         (6)(a) Pursuant to division rules and any additional rules
  201  set forth by the administrative law judge, a hearing shall be
  202  conducted no later than 120 days after the transfer of the
  203  petition to the division.
  204         (b) The prosecuting authority shall appear for the purpose
  205  of contesting, as necessary, the facts, the nature, and
  206  significance or effect of the evidence of actual innocence as
  207  presented by the petitioner.
  208         (c) No later than 45 days after the adjournment of the
  209  hearing, the administrative law judge shall issue an order
  210  setting forth his or her findings and recommendation and shall
  211  file the order with the original sentencing court.
  212         (d) The original sentencing court shall review the findings
  213  and recommendation contained in the order of the administrative
  214  law judge and, within 60 days, shall issue its own order
  215  adopting or declining to adopt the findings and recommendation
  216  of the administrative law judge.
  217         (7) If the court concludes that the petitioner is a
  218  wrongfully incarcerated person as defined by this act and is
  219  eligible for compensation as defined in this act, the court
  220  shall include in its order a certification to the department
  221  that:
  222         (a)1. The order of the administrative law judge finds that
  223  the petitioner has met his or her burden of proving actual
  224  innocence establishing by clear and convincing evidence that the
  225  petitioner committed neither the act nor the offense that served
  226  as the basis for the conviction and incarceration and that the
  227  petitioner did not aid, abet, or act as an accomplice to a
  228  person who committed the act or offense;
  229         2.The findings and recommendation of the administrative
  230  law judge on which its order is based are supported by
  231  competent, substantial evidence; and
  232         3.The petitioner is a wrongfully incarcerated person who
  233  is eligible for compensation; or
  234         (b)2.That The court has declined to adopt the findings and
  235  recommendation recommendations of the administrative law judge
  236  that the petitioner failed to prove actual innocence by clear
  237  and convincing evidence and finds that the petitioner has met
  238  his or her burden of proving actual innocence establishing by
  239  clear and convincing evidence, and that the petitioner is a
  240  wrongfully incarcerated person who is eligible for compensation.
  241  that the petitioner committed neither the act nor the offense
  242  that served as the basis for the conviction and incarceration
  243  and that the petitioner did not aid, abet, or act as an
  244  accomplice to a person who committed the act or offense; and
  245         (b)The original sentencing court determines the findings
  246  and recommendations on which its order is based are supported by
  247  competent, substantial evidence.
  248         (8) The establishment of the method by which a person may
  249  seek the status of a wrongfully incarcerated person and a
  250  finding as to eligibility for compensation under this act in no
  251  way creates any rights of due process beyond those set forth in
  252  this act herein, nor is there created any right to further
  253  petition or appeal beyond the scope of the method set forth in
  254  this act herein.
  255         Section 3. Section 961.05, Florida Statutes, is amended to
  256  read:
  257         961.05 Application for compensation for wrongful
  258  incarceration; administrative expunction; determination of
  259  entitlement to compensation.—
  260         (1) A wrongfully incarcerated person who is eligible for
  261  compensation as defined in this act must initiate his or her
  262  application for compensation as required in this section no more
  263  than 2 years after the original sentencing court enters its
  264  order finding that the person meets the definition of a
  265  wrongfully incarcerated person and is eligible for compensation
  266  as defined in this act.
  267         (2) A wrongfully incarcerated person who is eligible for
  268  compensation under the act must apply to the Department of Legal
  269  Affairs. No estate of, or personal representative for, a
  270  decedent is entitled to apply on behalf of the decedent for
  271  compensation for wrongful incarceration.
  272         (3) The Department of Legal Affairs may adopt rules
  273  regarding the forms and procedures related to applications for
  274  compensation under this act the Victims of Wrongful
  275  Incarceration Compensation Act.
  276         (4) The application must include:
  277         (a) Identification of the original sentencing court and the
  278  criminal case number of the case or cases for which the person
  279  was wrongfully incarcerated A certified copy of the order
  280  vacating the conviction and sentence;
  281         (b)A certified copy of the original sentencing courts
  282  order finding the claimant to be a wrongfully incarcerated
  283  person who is eligible for compensation under this act;
  284         (c)Certified copies of the original judgment and sentence;
  285         (d)Documentation demonstrating the length of the sentence
  286  served, including documentation from the Department of
  287  Corrections regarding the persons admission into and release
  288  from the custody of the Department of Corrections;
  289         (b)(e) Positive proof of identification, including two full
  290  sets of fingerprints administered by a law enforcement agency
  291  and a current form of photo identification, demonstrating that
  292  the person seeking compensation is the same individual who was
  293  wrongfully incarcerated;
  294         (c)(f) All supporting documentation of any fine, penalty,
  295  or court costs imposed and paid by the wrongfully incarcerated
  296  person as described in s. 961.06(1)(c);
  297         (d)(g) All supporting documentation of any reasonable
  298  attorney’s fees and expenses as described in s. 961.06(1)(d);
  299  and
  300         (e)(h) Any other documentation, evidence, or information
  301  required by rules adopted by the department.
  302         (5) Upon receipt of the application, the department shall:
  303  forward one full set of fingerprints of the applicant to the
  304  Department of Law Enforcement for statewide criminal records
  305  checks. The Department of Law Enforcement shall forward the
  306  second set of fingerprints to the Federal Bureau of
  307  Investigation for national criminal records checks. The results
  308  of the state and national records checks shall be submitted to
  309  the department.
  310         (a)Request that the clerk of the court provide a certified
  311  copy of the order vacating the conviction and sentence and
  312  certified copies of the original judgment and sentence. The
  313  clerk shall provide these records at no charge.
  314         (b)Request that the Department of Corrections provide
  315  documentation demonstrating the length of the sentence served,
  316  including the dates of the wrongfully incarcerated person’s
  317  admission into and release from the custody of the Department of
  318  Corrections. The Department of Corrections shall provide this
  319  documentation at no charge.
  320         (c)(6)Upon receipt of an application, the department shall
  321  Examine the application and notify the wrongfully incarcerated
  322  person claimant within 30 calendar days of any errors or
  323  omissions, and request any additional information relevant to
  324  the review of the application. The wrongfully incarcerated
  325  person claimant shall have 15 days after proper notification of
  326  any existing errors or omissions to supplement the application.
  327  The department may not deny an application for failure of the
  328  wrongfully incarcerated person claimant to correct an error or
  329  omission or supply additional information unless the department
  330  timely notified the person claimant of such errors or omissions
  331  or requested the additional information within the 30-day period
  332  specified in this subsection. The department shall process and
  333  review each completed application within 90 calendar days. Once
  334  the department determines whether a claim for compensation meets
  335  the requirements of this act, the department shall notify the
  336  wrongfully incarcerated person claimant within 5 business days
  337  of that determination.
  338         (6)(7) If the department determines that a wrongfully
  339  incarcerated person claimant meets the requirements of this act,
  340  the wrongfully incarcerated person who is the subject of the
  341  claim becomes entitled to compensation, subject to the
  342  provisions in s. 961.06.
  343         Section 4. Section 961.06, Florida Statutes, is amended to
  344  read:
  345         961.06 Compensation for wrongful incarceration.—
  346         (1) Except as otherwise provided in this act and subject to
  347  the limitations and procedures prescribed in this section, a
  348  person who is found to be entitled to compensation under the
  349  provisions of this act is entitled to:
  350         (a) Monetary compensation for wrongful incarceration, which
  351  shall be calculated at a rate of $50,000 for each year of
  352  wrongful incarceration, prorated as necessary to account for a
  353  portion of a year. For persons found to be wrongfully
  354  incarcerated after December 31, 2008, the Chief Financial
  355  Officer may adjust the annual rate of compensation for inflation
  356  using the change in the December-to-December “Consumer Price
  357  Index for All Urban Consumers” of the Bureau of Labor Statistics
  358  of the Department of Labor;
  359         (b) A waiver of tuition and fees for up to 120 hours of
  360  instruction at any career center established under s. 1001.44,
  361  any community college as defined in s. 1000.21(3), or any state
  362  university as defined in s. 1000.21(6), if the wrongfully
  363  incarcerated person meets and maintains the regular admission
  364  requirements of such career center, community college, or state
  365  university; remains registered at such educational institution;
  366  and makes satisfactory academic progress as defined by the
  367  educational institution in which the wrongfully incarcerated
  368  person claimant is enrolled;
  369         (c) The amount of any fine, penalty, or court costs imposed
  370  and paid by the wrongfully incarcerated person;
  371  (d) The amount of any reasonable attorney’s fees and expenses
  372  incurred and paid by the wrongfully incarcerated person in
  373  connection with all criminal proceedings and appeals regarding
  374  the wrongful conviction, to be calculated by the department
  375  based upon the supporting documentation submitted as
  376  specified in s. 961.05; and
  377         (e)The amount of any reasonable attorney’s fees and
  378  expenses incurred by the wrongfully incarcerated person in
  379  connection with obtaining compensation under this act, not to
  380  exceed $50,000, to be calculated by the department upon the
  381  submission of supporting documentation of those fees and
  382  expenses. The Chief Financial Officer shall pay the attorney’s
  383  fees and costs directly to the attorney, and the attorney may
  384  not receive additional fees and costs from the wrongfully
  385  incarcerated person by another arrangement or contract; and
  386         (f)(e) Notwithstanding any provision to the contrary in s.
  387  943.0585, immediate administrative expunction of the wrongfully
  388  incarcerated person’s criminal record resulting from his or her
  389  wrongful arrest, wrongful conviction, and wrongful
  390  incarceration. The Department of Legal Affairs and the
  391  Department of Law Enforcement shall, upon a determination that a
  392  person claimant is entitled to compensation, immediately take
  393  all action necessary to administratively expunge the person’s
  394  claimant’s criminal record arising from his or her wrongful
  395  arrest, wrongful conviction, and wrongful incarceration. All
  396  fees for this process shall be waived.
  397  
  398  The total compensation awarded under paragraphs (a), (c), and
  399  (d) may not exceed $2 million. Except as provided in paragraph
  400  (e), no further award for attorney’s fees, lobbying fees, costs,
  401  or other similar expenses shall be made by the state.
  402         (2) In calculating monetary compensation under paragraph
  403  (1)(a), a wrongfully incarcerated person who is placed on parole
  404  or community supervision while serving the sentence resulting
  405  from the wrongful conviction and who commits anything less than
  406  a felony law violation that results in revocation of the parole
  407  or community supervision is eligible for compensation for the
  408  total number of years incarcerated. A wrongfully incarcerated
  409  person who commits a felony law violation that results in
  410  revocation of the parole or community supervision is ineligible
  411  for any compensation under subsection (1).
  412         (3) Within 15 calendar days after issuing notice to the
  413  wrongfully incarcerated person claimant that his or her claim
  414  satisfies all of the requirements under this act, the department
  415  shall notify the Chief Financial Officer to draw a warrant from
  416  the General Revenue Fund or another source designated by the
  417  Legislature in law for the purchase of an annuity for the
  418  wrongfully incarcerated person claimant based on the total
  419  amount determined by the department under this act.
  420         (4) The Chief Financial Officer shall issue payment in the
  421  amount determined by the department to an insurance company or
  422  other financial institution admitted and authorized to issue
  423  purchase an annuity contracts in this state to purchase an
  424  annuity, selected by the wrongfully incarcerated person, on
  425  behalf of the claimant for a term of not less than 10 years. The
  426  Chief Financial Officer shall execute all necessary agreements
  427  to implement this act and maximize the benefit to the wrongfully
  428  incarcerated person. The terms of the annuity shall:
  429         (a) Provide that the annuity may not be sold, discounted,
  430  or used as security for a loan or mortgage by the wrongfully
  431  incarcerated person applicant.
  432         (b) Contain beneficiary provisions for the continued
  433  disbursement of the annuity in the event of the death of the
  434  wrongfully incarcerated person applicant.
  435         (5) Before the department approves the application under s.
  436  961.05 Chief Financial Officer draws the warrant for the
  437  purchase of the annuity, the wrongfully incarcerated person
  438  claimant must sign a release and waiver on behalf of the
  439  wrongfully incarcerated person claimant and his or her heirs,
  440  successors, and assigns, forever releasing the state or any
  441  agency, instrumentality, or any political subdivision thereof,
  442  or any other entity subject to the provisions of s. 768.28, from
  443  all present or future claims that the wrongfully incarcerated
  444  person claimant or his or her heirs, successors, or assigns may
  445  have against such entities arising out of the facts in
  446  connection with the wrongful conviction for which compensation
  447  is being sought under the act. The release and waiver must be
  448  provided to the department prior to the issuance of the warrant
  449  by the Chief Financial Officer.
  450         (6)(a) A wrongfully incarcerated person may not submit an
  451  application for compensation under this act if the person has a
  452  civil action lawsuit pending against the state or any agency,
  453  instrumentality, or any political subdivision thereof, or any
  454  other entity subject to the provisions of s. 768.28, in state or
  455  federal court requesting compensation arising out of the facts
  456  in connection with the wrongfully incarcerated persons
  457  claimants conviction and incarceration.
  458         (b)A wrongfully incarcerated person may not submit an
  459  application for compensation under this act if the person has
  460  received a prior judgment in his or her favor in a civil action
  461  against the state or any agency, instrumentality, or any
  462  political subdivision thereof, or against any other entity
  463  subject to s. 768.28, in state or federal court arising out of
  464  the wrongfully incarcerated person’s conviction and
  465  incarceration.
  466         (c)(b) A wrongfully incarcerated person may not submit an
  467  application for compensation under this act if the person is the
  468  subject of a claim bill pending for claims arising out of the
  469  facts in connection with the wrongfully incarcerated persons
  470  claimants conviction and incarceration.
  471         (d)(c) Once an application is filed under this act, a
  472  wrongfully incarcerated person may not pursue recovery under a
  473  claim bill until the final disposition of the application.
  474         (e)(d) Any amount awarded under this act is intended to
  475  provide the sole compensation for any and all present and future
  476  claims arising out of the facts in connection with the
  477  wrongfully incarcerated persons claimants conviction and
  478  incarceration. Upon notification by the department that an
  479  application meets the requirements of this act, a wrongfully
  480  incarcerated person may not recover under a claim bill.
  481         (f)(e) Any compensation awarded under a claim bill shall be
  482  the sole redress for claims arising out of the facts in
  483  connection with the wrongfully incarcerated person’s claimants
  484  conviction and incarceration and, upon any award of compensation
  485  to a wrongfully incarcerated person under a claim bill, the
  486  person may not receive compensation under this act.
  487         (7) Any payment made under this act does not constitute a
  488  waiver of any defense of sovereign immunity or an increase in
  489  the limits of liability on behalf of the state or any person
  490  subject to the provisions of s. 768.28 or other law.
  491         Section 5. This act shall take effect July 1, 2010.