Florida Senate - 2021 SB 1114
By Senator Pizzo
38-00025A-21 20211114__
1 A bill to be entitled
2 An act relating to compensation for eligible victims
3 of wrongful incarceration; amending s. 961.03, F.S.;
4 extending the filing deadline for a petition claiming
5 wrongful incarceration; providing limited
6 retroactivity for filing a petition claiming wrongful
7 incarceration; providing that a deceased person’s
8 heirs, successors, or assigns do not have standing to
9 file a petition related to the wrongful incarceration
10 of the deceased person; amending s. 961.04, F.S.;
11 revising eligibility for compensation for wrongful
12 incarceration for a wrongfully incarcerated person;
13 amending s. 961.06, F.S.; authorizing the Chief
14 Financial Officer to adjust compensation for inflation
15 for persons found to be wrongfully incarcerated after
16 a specified date; revising conditions for eligibility
17 for compensation for wrongful incarceration; requiring
18 the state to deduct the amount of a civil award from
19 the state compensation amount owed if the claimant
20 first receives a civil award; deleting a requirement
21 that a wrongfully incarcerated person sign a liability
22 release before receiving compensation; requiring a
23 claimant to reimburse the state for any difference
24 between state compensation and a civil award if the
25 claimant receives statutory compensation before a
26 civil award; requiring a claimant to notify the
27 Department of Legal Affairs upon filing a civil
28 action; requiring the department to file a notice of
29 payment of monetary compensation in such civil action;
30 deleting provisions prohibiting an application for
31 compensation if the applicant has a pending civil suit
32 requesting compensation; amending s. 961.07, F.S.;
33 specifying that payments for certain petitions filed
34 under the Victims of Wrongful Incarceration
35 Compensation Act are subject to specific
36 appropriation; reenacting ss. 961.02(4) and
37 961.03(1)(a), (2), (3), and (4), F.S., relating to
38 eligibility for compensation for wrongfully
39 incarcerated persons to incorporate the amendment made
40 to s. 961.04, F.S., in references thereto; reenacting
41 ss. 961.02(5) and 961.05(6), F.S., relating to
42 receiving compensation to incorporate the amendment
43 made to s. 961.06, F.S., in references thereto;
44 providing an effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Paragraph (b) of subsection (1) of section
49 961.03, Florida Statutes, is amended, and paragraph (c) is added
50 to that subsection, to read:
51 961.03 Determination of status as a wrongfully incarcerated
52 person; determination of eligibility for compensation.—
53 (1)
54 (b) The person must file the petition with the court:
55 1. Within 2 years after the order vacating a conviction and
56 sentence becomes final and the criminal charges against the
57 person are dismissed or the person is retried and acquitted, if
58 the person’s conviction and sentence is vacated on or after July
59 1, 2021.
60 2. By July 1, 2023, if the person’s conviction and sentence
61 was vacated and the criminal charges against the person were
62 dismissed or the person was retried and acquitted on or after
63 January 1, 2006, but before July 1, 2021, and he or she
64 previously filed a petition under this section which was
65 dismissed or did not file a petition under this section because:
66 a. The date when the criminal charges against the person
67 were dismissed or the date the person was acquitted upon retrial
68 occurred more than 90 days after the date of the final order
69 vacating the conviction and sentence; or
70 b. The person was convicted of an unrelated felony before
71 or during his or her wrongful conviction and incarceration and
72 was ineligible for compensation under former s. 961.04.
73 (c) A deceased person’s heirs, successors, or assigns do
74 not have standing to file a petition on the deceased person’s
75 behalf under this section
76 1. Within 90 days after the order vacating a conviction and
77 sentence becomes final if the person’s conviction and sentence
78 is vacated on or after July 1, 2008.
79 2. By July 1, 2010, if the person’s conviction and sentence
80 was vacated by an order that became final prior to July 1, 2008.
81 Section 2. Section 961.04, Florida Statutes, is amended to
82 read:
83 961.04 Eligibility for compensation for wrongful
84 incarceration.—A wrongfully incarcerated person is not eligible
85 for compensation under the act for any period of incarceration
86 during which the person was concurrently serving a sentence for
87 a conviction of another crime for which such person was lawfully
88 incarcerated if:
89 (1) Before the person’s wrongful conviction and
90 incarceration, the person was convicted of, or pled guilty or
91 nolo contendere to, regardless of adjudication, any violent
92 felony, or a crime committed in another jurisdiction the
93 elements of which would constitute a violent felony in this
94 state, or a crime committed against the United States which is
95 designated a violent felony, excluding any delinquency
96 disposition;
97 (2) Before the person’s wrongful conviction and
98 incarceration, the person was convicted of, or pled guilty or
99 nolo contendere to, regardless of adjudication, more than one
100 felony that is not a violent felony, or more than one crime
101 committed in another jurisdiction, the elements of which would
102 constitute a felony in this state, or more than one crime
103 committed against the United States which is designated a
104 felony, excluding any delinquency disposition;
105 (3) During the person’s wrongful incarceration, the person
106 was convicted of, or pled guilty or nolo contendere to,
107 regardless of adjudication, any violent felony;
108 (4) During the person’s wrongful incarceration, the person
109 was convicted of, or pled guilty or nolo contendere to,
110 regardless of adjudication, more than one felony that is not a
111 violent felony; or
112 (5) During the person’s wrongful incarceration, the person
113 was also serving a concurrent sentence for another felony for
114 which the person was not wrongfully convicted.
115 Section 3. Section 961.06, Florida Statutes, is amended to
116 read:
117 961.06 Compensation for wrongful incarceration.—
118 (1) Except as otherwise provided in this act and subject to
119 the limitations and procedures prescribed in this section, a
120 person who is found to be entitled to compensation under the
121 provisions of this act is entitled to:
122 (a) Monetary compensation for wrongful incarceration, which
123 shall be calculated at a rate of $50,000 for each year of
124 wrongful incarceration, prorated as necessary to account for a
125 portion of a year. For persons found to be wrongfully
126 incarcerated after December 31, 2005 2008, the Chief Financial
127 Officer may adjust the annual rate of compensation for inflation
128 using the change in the December-to-December “Consumer Price
129 Index for All Urban Consumers” of the Bureau of Labor Statistics
130 of the Department of Labor;
131 (b) A waiver of tuition and fees for up to 120 hours of
132 instruction at any career center established under s. 1001.44,
133 any Florida College System institution as defined in s.
134 1000.21(3), or any state university as defined in s. 1000.21(6),
135 if the wrongfully incarcerated person meets and maintains the
136 regular admission requirements of such career center, Florida
137 College System institution, or state university; remains
138 registered at such educational institution; and makes
139 satisfactory academic progress as defined by the educational
140 institution in which the claimant is enrolled;
141 (c) The amount of any fine, penalty, or court costs imposed
142 and paid by the wrongfully incarcerated person;
143 (d) The amount of any reasonable attorney attorney’s fees
144 and expenses incurred and paid by the wrongfully incarcerated
145 person in connection with all criminal proceedings and appeals
146 regarding the wrongful conviction, to be calculated by the
147 department based upon the supporting documentation submitted as
148 specified in s. 961.05; and
149 (e) Notwithstanding any provision to the contrary in s.
150 943.0583 or s. 943.0585, immediate administrative expunction of
151 the person’s criminal record resulting from his or her wrongful
152 arrest, wrongful conviction, and wrongful incarceration. The
153 Department of Legal Affairs and the Department of Law
154 Enforcement shall, upon a determination that a claimant is
155 entitled to compensation, immediately take all action necessary
156 to administratively expunge the claimant’s criminal record
157 arising from his or her wrongful arrest, wrongful conviction,
158 and wrongful incarceration. All fees for this process shall be
159 waived.
160
161 The total compensation awarded under paragraphs (a), (c), and
162 (d) may not exceed $2 million. No further award for attorney
163 attorney’s fees, lobbying fees, costs, or other similar expenses
164 shall be made by the state.
165 (2) In calculating monetary compensation under paragraph
166 (1)(a), a wrongfully incarcerated person who is placed on parole
167 or community supervision while serving the sentence resulting
168 from the wrongful conviction and who commits no more than one
169 felony that is not a violent felony which results in revocation
170 of the parole or community supervision is eligible for
171 compensation for the total number of years incarcerated. A
172 wrongfully incarcerated person who commits one violent felony or
173 more than one felony that is not a violent felony that results
174 in revocation of the parole or community supervision is
175 ineligible for any compensation under subsection (1).
176 (2)(3) Within 15 calendar days after issuing notice to the
177 claimant that his or her claim satisfies all of the requirements
178 under this act, the department shall notify the Chief Financial
179 Officer to draw a warrant from the General Revenue Fund or
180 another source designated by the Legislature in law for the
181 purchase of an annuity for the claimant based on the total
182 amount determined by the department under this act.
183 (3)(4) The Chief Financial Officer shall issue payment in
184 the amount determined by the department to an insurance company
185 or other financial institution admitted and authorized to issue
186 annuity contracts in this state to purchase an annuity or
187 annuities, selected by the wrongfully incarcerated person, for a
188 term of not less than 10 years. The Chief Financial Officer is
189 directed to execute all necessary agreements to implement this
190 act and to maximize the benefit to the wrongfully incarcerated
191 person. The terms of the annuity or annuities shall:
192 (a) Provide that the annuity or annuities may not be sold,
193 discounted, or used as security for a loan or mortgage by the
194 wrongfully incarcerated person.
195 (b) Contain beneficiary provisions for the continued
196 disbursement of the annuity or annuities in the event of the
197 death of the wrongfully incarcerated person.
198 (4)(5) If, at the time monetary compensation is determined
199 under paragraph (1)(a), a court has previously entered a
200 monetary judgment in favor of the claimant in a civil action
201 related to the claimant’s wrongful incarceration, or the
202 claimant has entered into a settlement agreement with the state
203 or any political subdivision thereof related to the claimant’s
204 wrongful incarceration, the amount of the damages in the civil
205 action or settlement agreement, less any sums paid for attorney
206 fees or for costs incurred in litigating the civil action or
207 obtaining the settlement agreement, shall be deducted from the
208 total monetary compensation to which the claimant is entitled
209 under this section Before the department approves the
210 application for compensation, the wrongfully incarcerated person
211 must sign a release and waiver on behalf of the wrongfully
212 incarcerated person and his or her heirs, successors, and
213 assigns, forever releasing the state or any agency,
214 instrumentality, or any political subdivision thereof, or any
215 other entity subject to s. 768.28, from all present or future
216 claims that the wrongfully incarcerated person or his or her
217 heirs, successors, or assigns may have against such entities
218 arising out of the facts in connection with the wrongful
219 conviction for which compensation is being sought under the act.
220 (5) If subsection (4) does not apply, and if after the time
221 monetary compensation is determined under paragraph (1)(a) the
222 court enters a monetary judgment in favor of the claimant in a
223 civil action related to the claimant’s wrongful incarceration,
224 or the claimant enters into a settlement agreement with the
225 state or any political subdivision thereof related to the
226 claimant’s wrongful incarceration, the claimant shall reimburse
227 the state for the monetary compensation in paragraph (1)(a),
228 less any sums paid for attorney fees or for costs incurred in
229 litigating the civil action or obtaining the settlement
230 agreement. A reimbursement required under this subsection shall
231 not exceed the amount of the monetary award the claimant
232 received for damages in a civil action or settlement agreement.
233 In the order of judgment, the court shall award to the state any
234 amount required to be deducted under this subsection.
235 (6)(a) The claimant shall notify the department upon filing
236 a civil action against the state or any political subdivision
237 thereof in which the claimant is seeking monetary damages
238 related to the claimant’s wrongful incarceration for which he or
239 she previously received or is applying to receive compensation
240 under paragraph (1)(a).
241 (b) Upon notice of the claimant’s civil action, the
242 department shall file in the case a notice of payment of
243 monetary compensation to the claimant under paragraph (1)(a).
244 The notice shall constitute a lien upon any monetary judgment or
245 settlement recovered under the civil action which is equal to
246 the sum of monetary compensation paid to the claimant under
247 paragraph (1)(a), less any attorney fees and costs incurred in
248 litigating the civil action or obtaining the settlement
249 agreement A wrongfully incarcerated person may not submit an
250 application for compensation under this act if the person has a
251 lawsuit pending against the state or any agency,
252 instrumentality, or any political subdivision thereof, or any
253 other entity subject to the provisions of s. 768.28, in state or
254 federal court requesting compensation arising out of the facts
255 in connection with the claimant’s conviction and incarceration.
256 (7)(a)(b) A wrongfully incarcerated person may not submit
257 an application for compensation under this act if the person is
258 the subject of a claim bill pending for claims arising out of
259 the facts in connection with the claimant’s conviction and
260 incarceration.
261 (b)(c) Once an application is filed under this act, a
262 wrongfully incarcerated person may not pursue recovery under a
263 claim bill until the final disposition of the application.
264 (c)(d) Any amount awarded under this act is intended to
265 provide the sole compensation for any and all present and future
266 claims arising out of the facts in connection with the
267 claimant’s conviction and incarceration. Upon notification by
268 the department that an application meets the requirements of
269 this act, a wrongfully incarcerated person may not recover under
270 a claim bill.
271 (d)(e) Any compensation awarded under a claim bill shall be
272 the sole redress for claims arising out of the facts in
273 connection with the claimant’s conviction and incarceration and,
274 upon any award of compensation to a wrongfully incarcerated
275 person under a claim bill, the person may not receive
276 compensation under this act.
277 (8)(7) Any payment made under this act does not constitute
278 a waiver of any defense of sovereign immunity or an increase in
279 the limits of liability on behalf of the state or any person
280 subject to the provisions of s. 768.28 or other law.
281 Section 4. Section 961.07, Florida Statutes, is amended to
282 read:
283 961.07 Continuing appropriation.—
284 (1) Beginning in the 2021-2022 2008-2009 fiscal year and
285 continuing each fiscal year thereafter, a sum sufficient to pay
286 the approved payments under s. 961.03(1)(b)1. this act is
287 appropriated from the General Revenue Fund to the Chief
288 Financial Officer, which sum is further appropriated for
289 expenditure pursuant to the provisions of this act.
290 (2) Payments for petitions filed pursuant to s.
291 961.03(1)(b)2. are subject to specific appropriation.
292 Section 5. For the purpose of incorporating the amendment
293 made by this act to section 961.04, Florida Statutes, in a
294 reference thereto, subsection (4) of section 961.02, Florida
295 Statutes, is reenacted to read:
296 961.02 Definitions.—As used in ss. 961.01-961.07, the term:
297 (4) “Eligible for compensation” means that a person meets
298 the definition of the term “wrongfully incarcerated person” and
299 is not disqualified from seeking compensation under the criteria
300 prescribed in s. 961.04.
301 Section 6. For the purpose of incorporating the amendment
302 made by this act to section 961.04, Florida Statutes, in
303 references thereto, paragraph (a) of subsection (1) and
304 subsections (2), (3), and (4) of section 961.03, Florida
305 Statutes, are reenacted to read:
306 961.03 Determination of status as a wrongfully incarcerated
307 person; determination of eligibility for compensation.—
308 (1)(a) In order to meet the definition of a “wrongfully
309 incarcerated person” and “eligible for compensation,” upon entry
310 of an order, based upon exonerating evidence, vacating a
311 conviction and sentence, a person must set forth the claim of
312 wrongful incarceration under oath and with particularity by
313 filing a petition with the original sentencing court, with a
314 copy of the petition and proper notice to the prosecuting
315 authority in the underlying felony for which the person was
316 incarcerated. At a minimum, the petition must:
317 1. State that verifiable and substantial evidence of actual
318 innocence exists and state with particularity the nature and
319 significance of the verifiable and substantial evidence of
320 actual innocence; and
321 2. State that the person is not disqualified, under the
322 provisions of s. 961.04, from seeking compensation under this
323 act.
324 (2) The prosecuting authority must respond to the petition
325 within 30 days. The prosecuting authority may respond:
326 (a) By certifying to the court that, based upon the
327 petition and verifiable and substantial evidence of actual
328 innocence, no further criminal proceedings in the case at bar
329 can or will be initiated by the prosecuting authority, that no
330 questions of fact remain as to the petitioner’s wrongful
331 incarceration, and that the petitioner is not ineligible from
332 seeking compensation under the provisions of s. 961.04; or
333 (b) By contesting the nature, significance, or effect of
334 the evidence of actual innocence, the facts related to the
335 petitioner’s alleged wrongful incarceration, or whether the
336 petitioner is ineligible from seeking compensation under the
337 provisions of s. 961.04.
338 (3) If the prosecuting authority responds as set forth in
339 paragraph (2)(a), the original sentencing court, based upon the
340 evidence of actual innocence, the prosecuting authority’s
341 certification, and upon the court’s finding that the petitioner
342 has presented clear and convincing evidence that the petitioner
343 committed neither the act nor the offense that served as the
344 basis for the conviction and incarceration, and that the
345 petitioner did not aid, abet, or act as an accomplice to a
346 person who committed the act or offense, shall certify to the
347 department that the petitioner is a wrongfully incarcerated
348 person as defined by this act. Based upon the prosecuting
349 authority’s certification, the court shall also certify to the
350 department that the petitioner is eligible for compensation
351 under the provisions of s. 961.04.
352 (4)(a) If the prosecuting authority responds as set forth
353 in paragraph (2)(b), the original sentencing court shall make a
354 determination from the pleadings and supporting documentation
355 whether, by a preponderance of the evidence, the petitioner is
356 ineligible for compensation under the provisions of s. 961.04,
357 regardless of his or her claim of wrongful incarceration. If the
358 court finds the petitioner ineligible under the provisions of s.
359 961.04, it shall dismiss the petition.
360 (b) If the prosecuting authority responds as set forth in
361 paragraph (2)(b), and the court determines that the petitioner
362 is eligible under the provisions of s. 961.04, but the
363 prosecuting authority contests the nature, significance or
364 effect of the evidence of actual innocence, or the facts related
365 to the petitioner’s alleged wrongful incarceration, the court
366 shall set forth its findings and transfer the petition by
367 electronic means through the division’s website to the division
368 for findings of fact and a recommended determination of whether
369 the petitioner has established that he or she is a wrongfully
370 incarcerated person who is eligible for compensation under this
371 act.
372 Section 7. For the purpose of incorporating the amendment
373 made by this act to section 961.06, Florida Statutes, in a
374 reference thereto, subsection (5) of section 961.02, Florida
375 Statutes, is reenacted to read:
376 961.02 Definitions.—As used in ss. 961.01-961.07, the term:
377 (5) “Entitled to compensation” means that a person meets
378 the definition of the term “eligible for compensation” and
379 satisfies the application requirements prescribed in s. 961.05,
380 and may receive compensation pursuant to s. 961.06.
381 Section 8. For the purpose of incorporating the amendment
382 made by this act to section 961.06, Florida Statutes, in a
383 reference thereto, subsection (6) of section 961.05, Florida
384 Statutes, is reenacted to read:
385 961.05 Application for compensation for wrongful
386 incarceration; administrative expunction; determination of
387 entitlement to compensation.—
388 (6) If the department determines that a claimant meets the
389 requirements of this act, the wrongfully incarcerated person who
390 is the subject of the claim becomes entitled to compensation,
391 subject to the provisions in s. 961.06.
392 Section 9. This act shall take effect July 1, 2021.