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 petitioners 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 petitioners 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 authoritys
  158  certification, and upon the courts 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 authoritys
  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 petitioners 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 petitioners 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 courts
  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 persons 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 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, 2011.