Quick Links
- General Laws Conversion Table (2024) [PDF]
- Florida Statutes Definitions Index (2024) [PDF]
- Table of Section Changes (2024) [PDF]
- Preface to the Florida Statutes (2024) [PDF]
- Table Tracing Session Laws to Florida Statutes (2024) [PDF]
- Index to Special and Local Laws (1971-2024) [PDF]
- Index to Special and Local Laws (1845-1970) [PDF]
- Statute Search Tips
2010 Florida Statutes
Determination of status as a wrongfully incarcerated person; determination of eligibility for compensation.
Determination of status as a wrongfully incarcerated person; determination of eligibility for compensation.
—In order to meet the definition of a “wrongfully incarcerated person” and “eligible for compensation,” upon entry of an order, based upon exonerating evidence, vacating a conviction and sentence, a person must set forth the claim of wrongful incarceration under oath and with particularity by filing a petition with the original sentencing court, with a copy of the petition and proper notice to the prosecuting authority in the underlying felony for which the person was incarcerated. At a minimum, the petition must:
State that verifiable and substantial evidence of actual innocence exists and state with particularity the nature and significance of the verifiable and substantial evidence of actual innocence; and
State that the person is not disqualified, under the provisions of s. 961.04, from seeking compensation under this act.
The person must file the petition with the court:
Within 90 days after the order vacating a conviction and sentence becomes final if the person’s conviction and sentence is vacated on or after July 1, 2008.
By July 1, 2010, if the person’s conviction and sentence was vacated by an order that became final prior to July 1, 2008.
The prosecuting authority must respond to the petition within 30 days. The prosecuting authority may respond:
By certifying to the court that, based upon the petition and verifiable and substantial evidence of actual innocence, no further criminal proceedings in the case at bar can or will be initiated by the prosecuting authority, that no questions of fact remain as to the petitioner’s wrongful incarceration, and that the petitioner is not ineligible from seeking compensation under the provisions of s. 961.04; or
By contesting the nature, significance, or effect of the evidence of actual innocence, the facts related to the petitioner’s alleged wrongful incarceration, or whether the petitioner is ineligible from seeking compensation under the provisions of s. 961.04.
If the prosecuting authority responds as set forth in paragraph (2)(a), the original sentencing court, based upon the evidence of actual innocence, the prosecuting authority’s certification, and upon the court’s finding that the petitioner has presented clear and convincing evidence that the petitioner committed neither the act nor the offense that served as the basis for the conviction and incarceration, and that the petitioner did not aid, abet, or act as an accomplice to a person who committed the act or offense, shall certify to the department that the petitioner is a wrongfully incarcerated person as defined by this act. Based upon the prosecuting authority’s certification, the court shall also certify to the department that the petitioner is eligible for compensation under the provisions of s. 961.04.
If the prosecuting authority responds as set forth in paragraph (2)(b), the original sentencing court shall make a determination from the pleadings and supporting documentation whether, by a preponderance of the evidence, the petitioner is ineligible for compensation under the provisions of s. 961.04, regardless of his or her claim of wrongful incarceration. If the court finds the petitioner ineligible under the provisions of s. 961.04, it shall dismiss the petition.
If the prosecuting authority responds as set forth in paragraph (2)(b), and the court determines that the petitioner is eligible under the provisions of s. 961.04, but the prosecuting authority contests the nature, significance or effect of the evidence of actual innocence, or the facts related to the petitioner’s alleged wrongful incarceration, the court shall set forth its findings and transfer the petition to the division for findings of fact and a recommended determination of whether the petitioner has established that he or she is a wrongfully incarcerated person who is eligible for compensation under this act.
Any questions of fact, the nature, significance or effect of the evidence of actual innocence, and the petitioner’s eligibility for compensation under this act must be established by clear and convincing evidence by the petitioner before an administrative law judge.
Pursuant to division rules and any additional rules set forth by the administrative law judge, a hearing shall be conducted no later than 120 days after the transfer of the petition.
The prosecuting authority shall appear for the purpose of contesting, as necessary, the facts, the nature, and significance or effect of the evidence of actual innocence as presented by the petitioner.
No later than 45 days after the adjournment of the hearing, the administrative law judge shall issue an order setting forth his or her findings and recommendation and shall file the order with the original sentencing court.
The original sentencing court shall review the findings and recommendation contained in the order of the administrative law judge and, within 60 days, shall issue its own order adopting or declining to adopt the findings and recommendation of the administrative law judge.
If the court concludes that the petitioner is a wrongfully incarcerated person as defined by this act and is eligible for compensation as defined in this act, the court shall include in its order a certification to the department that:
The order of the administrative law judge finds that the petitioner has met his or her burden of establishing by clear and convincing evidence that the petitioner committed neither the act nor the offense that served as the basis for the conviction and incarceration and that the petitioner did not aid, abet, or act as an accomplice to a person who committed the act or offense; or
That the court has declined to adopt the findings and recommendations of the administrative law judge and finds that the petitioner has met his or her burden of establishing by clear and convincing evidence that the petitioner committed neither the act nor the offense that served as the basis for the conviction and incarceration and that the petitioner did not aid, abet, or act as an accomplice to a person who committed the act or offense; and
The original sentencing court determines the findings and recommendations on which its order is based are supported by competent, substantial evidence.
The establishment of the method by which a person may seek the status of a wrongfully incarcerated person and a finding as to eligibility for compensation under this act in no way creates any rights of due process beyond those set forth herein, nor is there created any right to further petition or appeal beyond the scope of the method set forth herein.
s. 3, ch. 2008-39.