Bill Text: FL S0250 | 2011 | Regular Session | Introduced
Bill Title: Compensation for Wrongful Incarceration
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S0250 Detail]
Download: Florida-2011-S0250-Introduced.html
Florida Senate - 2011 SB 250
By Senator Joyner
18-00211-11 2011250__
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,” to conform;
7 amending s. 961.03, F.S.; requiring that a petition
8 for compensation describe the existence of clear and
9 convincing evidence of actual innocence; requiring the
10 petitioner to submit fingerprints for criminal history
11 records 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 that the wrongfully incarcerated person sign
42 a waiver before the Department of Legal Affairs
43 approves the application; precluding submission of an
44 application for compensation if the wrongfully
45 incarcerated person has received a prior favorable
46 judgment from a civil action arising out of the
47 wrongful incarceration; 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 verifiable and
98 substantial evidence of actual innocence; and
99 2. State that the person is not disqualified, under the
100 provisions of s. 961.04, from seeking compensation under this
101 act.
102 (b) The person must file the petition with the court:
103 1. Within 90 days after the order vacating a conviction and
104 sentence becomes final if the person’s conviction and sentence
105 is vacated on or after July 1, 2008.
106 2. By July 1, 2010, if the person’s conviction and sentence
107 was vacated by an order that became final prior to July 1, 2008.
108 (c)1. Within 30 days after filing the petition, the
109 petitioner must submit fingerprints for a state and national
110 criminal history records check. Failure to satisfy this
111 subparagraph within the prescribed timeframe is not grounds for
112 denial of compensation under this act.
113 2. The clerk of the court shall inform the petitioner of
114 the process for having his or her fingerprints taken and
115 submitted and provide information concerning law enforcement
116 agencies or service providers that are authorized to submit
117 fingerprints electronically to the Department of Law
118 Enforcement.
119 3. The petitioner’s fingerprints must be taken in a manner
120 approved by the Department of Law Enforcement and shall be
121 submitted electronically to the Department of Law Enforcement
122 for state processing for a criminal history records check. The
123 Department of Law Enforcement shall submit the fingerprints to
124 the Federal Bureau of Investigation for national processing. The
125 Department of Law Enforcement shall submit the results of the
126 state and national records check to the clerk of the court. The
127 court shall consider the results in evaluating whether the
128 petitioner is eligible for compensation under s. 961.04.
129 4. The petitioner may not be charged for the cost of
130 conducting the state and national criminal history records
131 checks required under this paragraph. The cost of state and
132 national processing shall be borne by the Department of Law
133 Enforcement.
134 (2) The prosecuting authority must respond to the petition
135 within 30 days. The prosecuting authority may respond:
136 (a) By certifying to the court that, based upon the
137 petition and verifiable and substantial evidence of actual
138 innocence, no further criminal proceedings in the case at bar
139 can or will be initiated by the prosecuting authority, and that
140 the prosecuting authority does not contest no questions of fact
141 remain as to the petitioner’s claim of actual innocence wrongful
142 incarceration, and that the petitioner is not ineligible from
143 seeking compensation under the provisions of s. 961.04; or
144 (b) By certifying to the court that questions of fact
145 remain as to the petitioner’s claim of actual innocence, and
146 that the prosecuting authority contests contesting the nature,
147 significance, or effect of the evidence of actual innocence, the
148 facts related to the petitioner’s alleged wrongful
149 incarceration, or whether the petitioner is ineligible from
150 seeking compensation under the provisions of s. 961.04.
151 (3) If the prosecuting authority certifies to the court
152 that it does not contest the petitioner’s claim of actual
153 innocence, and the court finds that the petitioner has proven
154 actual innocence by clear and convincing evidence and is
155 eligible for compensation under s. 961.04 responds as set forth
156 in paragraph (2)(a), the original sentencing court, based upon
157 the evidence of actual innocence, the prosecuting authority’s
158 certification, and upon the court’s finding that the petitioner
159 has presented clear and convincing evidence that the petitioner
160 committed neither the act nor the offense that served as the
161 basis for the conviction and incarceration, and that the
162 petitioner did not aid, abet, or act as an accomplice to a
163 person who committed the act or offense, the original sentencing
164 court shall certify to the department that the petitioner is a
165 wrongfully incarcerated person who is eligible for compensation
166 as defined by this act. Based upon the prosecuting authority’s
167 certification, the court shall also certify to the department
168 that the petitioner is eligible for compensation under the
169 provisions of s. 961.04.
170 (4)(a) If the prosecuting authority contests the
171 petitioner’s claim of actual innocence responds as set forth in
172 paragraph (2)(b), the original sentencing court shall make a
173 determination from the pleadings and supporting documentation
174 whether, by a preponderance of the evidence, the petitioner is
175 eligible ineligible for compensation under the provisions of s.
176 961.04, regardless of his or her claim of wrongful
177 incarceration. If the court finds the petitioner ineligible
178 under the provisions of s. 961.04, it must shall dismiss the
179 petition.
180 (b) If the court determines that the petitioner is eligible
181 under s. 961.04 prosecuting authority responds as set forth in
182 paragraph (2)(b), and the court determines that the petitioner
183 is eligible under the provisions of s. 961.04, but the
184 prosecuting authority contests the nature, significance, or
185 effect of the evidence of actual innocence, or the facts related
186 to the petitioner’s alleged wrongful incarceration, the court
187 shall set forth its findings and transfer the petition to the
188 division for findings of fact and a recommended determination of
189 whether the petitioner has proven actual innocence established
190 that he or she is a wrongfully incarcerated person who is
191 eligible for compensation under this act.
192 (5) The petitioner must prove actual innocence before the
193 administrative law judge by clear and convincing evidence. Any
194 questions of fact, the nature, significance or effect of the
195 evidence of actual innocence, and the petitioner’s eligibility
196 for compensation under this act must be established by clear and
197 convincing evidence by the petitioner before an administrative
198 law judge.
199 (6)(a) Pursuant to division rules and any additional rules
200 set forth by the administrative law judge, a hearing must shall
201 be conducted no later than 120 days after the transfer of the
202 petition to the division.
203 (b) The prosecuting authority shall appear for the purpose
204 of contesting, as necessary, the facts, the nature, and
205 significance or effect of the evidence of actual innocence as
206 presented by the petitioner.
207 (c) No later than 45 days after the adjournment of the
208 hearing, the administrative law judge shall issue an order
209 setting forth his or her findings and recommendation and shall
210 file the order with the original sentencing court.
211 (d) The original sentencing court shall review the findings
212 and recommendation contained in the order of the administrative
213 law judge and, within 60 days, shall issue its own order
214 adopting or declining to adopt the findings and recommendation
215 of the administrative law judge.
216 (7) If the court concludes that the petitioner is a
217 wrongfully incarcerated person as defined by this act and is
218 eligible for compensation as defined in this act, the court
219 shall include in its order a certification to the department
220 that:
221 (a)1. The order of the administrative law judge finds that
222 the petitioner has met his or her burden of proving actual
223 innocence establishing by clear and convincing evidence that the
224 petitioner committed neither the act nor the offense that served
225 as the basis for the conviction and incarceration and that the
226 petitioner did not aid, abet, or act as an accomplice to a
227 person who committed the act or offense;
228 2. The findings and recommendation of the administrative
229 law judge on which its order is based are supported by
230 competent, substantial evidence; and
231 3. The petitioner is a wrongfully incarcerated person who
232 is eligible for compensation; or
233 (b)2. That The court has declined to adopt the findings and
234 recommendation recommendations of the administrative law judge
235 that the petitioner failed to prove actual innocence by clear
236 and convincing evidence and finds that the petitioner has met
237 his or her burden of proving actual innocence establishing by
238 clear and convincing evidence, and that the petitioner is a
239 wrongfully incarcerated person who is eligible for compensation.
240 that the petitioner committed neither the act nor the offense
241 that served as the basis for the conviction and incarceration
242 and that the petitioner did not aid, abet, or act as an
243 accomplice to a person who committed the act or offense; and
244 (b) The original sentencing court determines the findings
245 and recommendations on which its order is based are supported by
246 competent, substantial evidence.
247 (8) The establishment of the method by which a person may
248 seek the status of a wrongfully incarcerated person and a
249 finding as to eligibility for compensation under this act in no
250 way creates any rights of due process beyond those set forth in
251 this act herein, nor is there created any right to further
252 petition or appeal beyond the scope of the method set forth in
253 this act herein.
254 Section 3. Section 961.05, Florida Statutes, is amended to
255 read:
256 961.05 Application for compensation for wrongful
257 incarceration; administrative expunction; determination of
258 entitlement to compensation.—
259 (1) A wrongfully incarcerated person who is eligible for
260 compensation as defined in this act must initiate his or her
261 application for compensation as required in this section no more
262 than 2 years after the original sentencing court enters its
263 order finding that the person meets the definition of a
264 wrongfully incarcerated person and is eligible for compensation
265 as defined in this act.
266 (2) A wrongfully incarcerated person who is eligible for
267 compensation under the act must apply to the Department of Legal
268 Affairs. No estate of, or personal representative for, a
269 decedent is entitled to apply on behalf of the decedent for
270 compensation for wrongful incarceration.
271 (3) The Department of Legal Affairs may adopt rules
272 regarding the forms and procedures related to applications for
273 compensation under this act the Victims of Wrongful
274 Incarceration Compensation Act.
275 (4) The application must include:
276 (a) Identification of the original sentencing court and the
277 criminal case number of the case or cases for which the person
278 was wrongfully incarcerated A certified copy of the order
279 vacating the conviction and sentence;
280 (b) A certified copy of the original sentencing court’s
281 order finding the claimant to be a wrongfully incarcerated
282 person who is eligible for compensation under this act;
283 (c) Certified copies of the original judgment and sentence;
284 (d) Documentation demonstrating the length of the sentence
285 served, including documentation from the Department of
286 Corrections regarding the person’s admission into and release
287 from the custody of the Department of Corrections;
288 (b)(e) Positive proof of identification, including two full
289 sets of fingerprints administered by a law enforcement agency
290 and a current form of photo identification, demonstrating that
291 the person seeking compensation is the same individual who was
292 wrongfully incarcerated;
293 (c)(f) All supporting documentation of any fine, penalty,
294 or court costs imposed and paid by the wrongfully incarcerated
295 person as described in s. 961.06(1)(c);
296 (d)(g) All supporting documentation of any reasonable
297 attorney’s fees and expenses as described in s. 961.06(1)(d);
298 and
299 (e)(h) Any other documentation, evidence, or information
300 required by rules adopted by the department.
301 (5) Upon receipt of the application, the department shall:
302 forward one full set of fingerprints of the applicant to the
303 Department of Law Enforcement for statewide criminal records
304 checks. The Department of Law Enforcement shall forward the
305 second set of fingerprints to the Federal Bureau of
306 Investigation for national criminal records checks. The results
307 of the state and national records checks shall be submitted to
308 the department.
309 (a) Request that the clerk of the court provide a certified
310 copy of the order vacating the conviction and sentence and
311 certified copies of the original judgment and sentence. The
312 clerk shall provide these records at no charge.
313 (b) Request that the Department of Corrections provide
314 documentation demonstrating the length of the sentence served,
315 including the dates of the wrongfully incarcerated person’s
316 admission into and release from the custody of the Department of
317 Corrections. The Department of Corrections shall provide this
318 documentation at no charge.
319 (c)(6) Upon receipt of an application, the department shall
320 Examine the application and notify the wrongfully incarcerated
321 person claimant within 30 calendar days of any errors or
322 omissions, and request any additional information relevant to
323 the review of the application. The wrongfully incarcerated
324 person claimant shall have 15 days after proper notification of
325 any existing errors or omissions to supplement the application.
326 The department may not deny an application for failure of the
327 wrongfully incarcerated person claimant to correct an error or
328 omission or supply additional information unless the department
329 timely notified the person claimant of such errors or omissions
330 or requested the additional information within the 30-day period
331 specified in this subsection. The department shall process and
332 review each completed application within 90 calendar days. Once
333 the department determines whether a claim for compensation meets
334 the requirements of this act, the department shall notify the
335 wrongfully incarcerated person claimant within 5 business days
336 of that determination.
337 (6)(7) If the department determines that a wrongfully
338 incarcerated person claimant meets the requirements of this act,
339 the wrongfully incarcerated person who is the subject of the
340 claim becomes entitled to compensation, subject to the
341 provisions in s. 961.06.
342 Section 4. Section 961.06, Florida Statutes, is amended to
343 read:
344 961.06 Compensation for wrongful incarceration.—
345 (1) Except as otherwise provided in this act and subject to
346 the limitations and procedures prescribed in this section, a
347 person who is found to be entitled to compensation under the
348 provisions of this act is entitled to:
349 (a) Monetary compensation for wrongful incarceration, which
350 shall be calculated at a rate of $50,000 for each year of
351 wrongful incarceration, prorated as necessary to account for a
352 portion of a year. For persons found to be wrongfully
353 incarcerated after December 31, 2008, the Chief Financial
354 Officer may adjust the annual rate of compensation for inflation
355 using the change in the December-to-December “Consumer Price
356 Index for All Urban Consumers” of the Bureau of Labor Statistics
357 of the Department of Labor;
358 (b) A waiver of tuition and fees for up to 120 hours of
359 instruction at any career center established under s. 1001.44,
360 any community college as defined in s. 1000.21(3), or any state
361 university as defined in s. 1000.21(6), if the wrongfully
362 incarcerated person meets and maintains the regular admission
363 requirements of such career center, community college, or state
364 university; remains registered at such educational institution;
365 and makes satisfactory academic progress as defined by the
366 educational institution in which the wrongfully incarcerated
367 person claimant is enrolled;
368 (c) The amount of any fine, penalty, or court costs imposed
369 and paid by the wrongfully incarcerated person;
370 (d) The amount of any reasonable attorney’s fees and
371 expenses incurred and paid by the wrongfully incarcerated person
372 in connection with all criminal proceedings and appeals
373 regarding the wrongful conviction, to be calculated by the
374 department based upon the supporting documentation submitted as
375 specified in s. 961.05; and
376 (e) The amount of any reasonable attorney’s fees and
377 expenses incurred by the wrongfully incarcerated person in
378 connection with obtaining compensation under this act, not to
379 exceed $50,000, to be calculated by the department upon the
380 submission of supporting documentation of those fees and
381 expenses. The Chief Financial Officer shall pay the attorney’s
382 fees and costs directly to the attorney, and the attorney may
383 not receive additional fees and costs from the wrongfully
384 incarcerated person by another arrangement or contract; and
385 (f)(e) Notwithstanding any provision to the contrary in s.
386 943.0585, immediate administrative expunction of the wrongfully
387 incarcerated person’s criminal record resulting from his or her
388 wrongful arrest, wrongful conviction, and wrongful
389 incarceration. The Department of Legal Affairs and the
390 Department of Law Enforcement shall, upon a determination that a
391 person claimant is entitled to compensation, immediately take
392 all action necessary to administratively expunge the person’s
393 claimant’s criminal record arising from his or her wrongful
394 arrest, wrongful conviction, and wrongful incarceration. All
395 fees for this process shall be waived.
396
397 The total compensation awarded under paragraphs (a), (c), and
398 (d), and (e) may not exceed $2 million. Except as provided in
399 paragraph (e), no further award for attorney’s fees, lobbying
400 fees, costs, or other similar expenses shall be made by the
401 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 person’s
457 claimant’s 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 person’s
470 claimant’s 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 person’s claimant’s 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 claimant’s
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, 2011.
