Florida Senate - 2012                                      SB 82
       
       
       
       By Senator Joyner
       
       
       
       
       18-00039-12                                             201282__
    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; requiring that the Department of Law
   19         Enforcement pay for the criminal history records
   20         checks; amending s. 961.05, F.S.; eliminating the
   21         requirement that a wrongfully incarcerated person
   22         provide certain court records and documentation from
   23         the Department of Corrections along with an
   24         application for compensation; requiring the Department
   25         of Legal Affairs to request certain records from the
   26         clerk of the court and the Department of Corrections;
   27         amending s. 961.06, F.S.; providing for compensation
   28         of reasonable attorney’s fees and expenses, up to
   29         $50,000, incurred for pursuing compensation for
   30         wrongful incarceration; directing the Chief Financial
   31         Officer to remit payment of attorney’s fees directly
   32         to the attorney; precluding the attorney from receipt
   33         of additional fees from the wrongfully incarcerated
   34         person; requiring the Chief Financial Officer to draw
   35         a warrant to an insurance company or other financial
   36         institution authorized to issue annuity contracts to
   37         purchase an annuity selected by the wrongfully
   38         incarcerated person; authorizing the Chief Financial
   39         Officer to execute all necessary agreements to
   40         implement compensation and to maximize the benefit to
   41         the wrongfully incarcerated person; requiring that the
   42         wrongfully incarcerated person sign a waiver before
   43         the Department of Legal Affairs approves the
   44         application; precluding submission of an application
   45         for compensation if the wrongfully incarcerated person
   46         has received a prior favorable judgment from a civil
   47         action arising out of the wrongful incarceration;
   48         providing an effective date.
   49  
   50  Be It Enacted by the Legislature of the State of Florida:
   51  
   52         Section 1. Section 961.02, Florida Statutes, is amended to
   53  read:
   54         961.02 Definitions.—As used in ss. 961.01-961.07, the term:
   55         (1) “Act” means the Victims of Wrongful Incarceration
   56  Compensation Act.
   57         (2)“Actual innocence” means that a person did not commit
   58  the act or the offense that served as the basis for the
   59  conviction and incarceration for which the person seeks
   60  compensation, and that the person did not aid, abet, or act as
   61  an accomplice to a person who committed the act or offense.
   62         (3)(2) “Department” means the Department of Legal Affairs.
   63         (4)(3) “Division” means the Division of Administrative
   64  Hearings.
   65         (5)(4) “Wrongfully incarcerated person” means a person
   66  whose felony conviction and sentence have been vacated by a
   67  court of competent jurisdiction and, with respect to whom
   68  pursuant to the requirements of s. 961.03, the original
   69  sentencing court has issued its order finding that the person
   70  has proven actual innocence by clear and convincing evidence
   71  neither committed the act nor the offense that served as the
   72  basis for the conviction and incarceration and that the person
   73  did not aid, abet, or act as an accomplice or accessory to a
   74  person who committed the act or offense.
   75         (6)(5) “Eligible for compensation” means a person meets the
   76  definition of “wrongfully incarcerated person” and is not
   77  disqualified from seeking compensation under the criteria
   78  prescribed in s. 961.04.
   79         (7)(6) “Entitled to compensation” means a person meets the
   80  definition of “eligible for compensation” and satisfies the
   81  application requirements prescribed in s. 961.05, and may
   82  receive compensation pursuant to s. 961.06.
   83         Section 2. Section 961.03, Florida Statutes, is amended to
   84  read:
   85         961.03 Determination of status as a wrongfully incarcerated
   86  person; determination of eligibility for compensation.—
   87         (1)(a) In order to meet the definition of a “wrongfully
   88  incarcerated person” and “eligible for compensation,” upon entry
   89  of an order, based upon exonerating evidence, vacating a
   90  conviction and sentence, a person must set forth the claim of
   91  wrongful incarceration under oath and with particularity by
   92  filing a petition with the original sentencing court, with a
   93  copy of the petition and proper notice to the prosecuting
   94  authority in the underlying felony for which the person was
   95  incarcerated. At a minimum, the petition must:
   96         1. State that clear and convincing verifiable and
   97  substantial evidence of actual innocence exists and state with
   98  particularity the nature and significance of the verifiable and
   99  substantial evidence of actual 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 checks 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 borne 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 must 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 by
  189  electronic means through the division’s website to the division
  190  for findings of fact and a recommended determination of whether
  191  the petitioner has proven actual innocence established that he
  192  or she is a wrongfully incarcerated person who is eligible for
  193  compensation under this act.
  194         (5) The petitioner must prove actual innocence before the
  195  administrative law judge by clear and convincing evidence. Any
  196  questions of fact, the nature, significance or effect of the
  197  evidence of actual innocence, and the petitioners eligibility
  198  for compensation under this act must be established by clear and
  199  convincing evidence by the petitioner before an administrative
  200  law judge.
  201         (6)(a) Pursuant to division rules and any additional rules
  202  set forth by the administrative law judge, a hearing must shall
  203  be conducted no later than 120 days after the transfer of the
  204  petition to the division.
  205         (b) The prosecuting authority shall appear for the purpose
  206  of contesting, as necessary, the facts, the nature, and
  207  significance or effect of the evidence of actual innocence as
  208  presented by the petitioner.
  209         (c) No later than 45 days after the adjournment of the
  210  hearing, the administrative law judge shall issue an order
  211  setting forth his or her findings and recommendation and shall
  212  file the order with the original sentencing court.
  213         (d) The original sentencing court shall review the findings
  214  and recommendation contained in the order of the administrative
  215  law judge and, within 60 days, shall issue its own order
  216  adopting or declining to adopt the findings and recommendation
  217  of the administrative law judge.
  218         (7) If the court concludes that the petitioner is a
  219  wrongfully incarcerated person as defined by this act and is
  220  eligible for compensation as defined in this act, the court
  221  shall include in its order a certification to the department
  222  that:
  223         (a)1. The order of the administrative law judge finds that
  224  the petitioner has met his or her burden of proving actual
  225  innocence establishing by clear and convincing evidence that the
  226  petitioner committed neither the act nor the offense that served
  227  as the basis for the conviction and incarceration and that the
  228  petitioner did not aid, abet, or act as an accomplice to a
  229  person who committed the act or offense;
  230         2.The findings and recommendation of the administrative
  231  law judge on which its order is based are supported by
  232  competent, substantial evidence; and
  233         3.The petitioner is a wrongfully incarcerated person who
  234  is eligible for compensation; or
  235         (b)2.That The court has declined to adopt the findings and
  236  recommendation recommendations of the administrative law judge
  237  that the petitioner failed to prove actual innocence by clear
  238  and convincing evidence and finds that the petitioner has met
  239  his or her burden of proving actual innocence establishing by
  240  clear and convincing evidence, and that the petitioner is a
  241  wrongfully incarcerated person who is eligible for compensation.
  242  that the petitioner committed neither the act nor the offense
  243  that served as the basis for the conviction and incarceration
  244  and that the petitioner did not aid, abet, or act as an
  245  accomplice to a person who committed the act or offense; and
  246         (b)The original sentencing court determines the findings
  247  and recommendations on which its order is based are supported by
  248  competent, substantial evidence.
  249         (8) The establishment of the method by which a person may
  250  seek the status of a wrongfully incarcerated person and a
  251  finding as to eligibility for compensation under this act in no
  252  way creates any rights of due process beyond those set forth in
  253  this act herein, nor is there created any right to further
  254  petition or appeal beyond the scope of the method set forth in
  255  this act herein.
  256         Section 3. Section 961.05, Florida Statutes, is amended to
  257  read:
  258         961.05 Application for compensation for wrongful
  259  incarceration; administrative expunction; determination of
  260  entitlement to compensation.—
  261         (1) A wrongfully incarcerated person who is eligible for
  262  compensation as defined in this act must initiate his or her
  263  application for compensation as required in this section no more
  264  than 2 years after the original sentencing court enters its
  265  order finding that the person meets the definition of a
  266  wrongfully incarcerated person and is eligible for compensation
  267  as defined in this act.
  268         (2) A wrongfully incarcerated person who is eligible for
  269  compensation under the act must apply to the Department of Legal
  270  Affairs. No estate of, or personal representative for, a
  271  decedent is entitled to apply on behalf of the decedent for
  272  compensation for wrongful incarceration.
  273         (3) The Department of Legal Affairs may adopt rules
  274  regarding the forms and procedures related to applications for
  275  compensation under this act the Victims of Wrongful
  276  Incarceration Compensation Act.
  277         (4) The application must include:
  278         (a) Identification of the original sentencing court and the
  279  criminal case number of the case or cases for which the person
  280  was wrongfully incarcerated A certified copy of the order
  281  vacating the conviction and sentence;
  282         (b)A certified copy of the original sentencing courts
  283  order finding the claimant to be a wrongfully incarcerated
  284  person who is eligible for compensation under this act;
  285         (c)Certified copies of the original judgment and sentence;
  286         (d)Documentation demonstrating the length of the sentence
  287  served, including documentation from the Department of
  288  Corrections regarding the persons admission into and release
  289  from the custody of the Department of Corrections;
  290         (b)(e) Positive proof of identification, including two full
  291  sets of fingerprints administered by a law enforcement agency
  292  and a current form of photo identification, demonstrating that
  293  the person seeking compensation is the same individual who was
  294  wrongfully incarcerated;
  295         (c)(f) All supporting documentation of any fine, penalty,
  296  or court costs imposed and paid by the wrongfully incarcerated
  297  person as described in s. 961.06(1)(c);
  298         (d)(g) All supporting documentation of any reasonable
  299  attorney’s fees and expenses as described in s. 961.06(1)(d);
  300  and
  301         (e)(h) Any other documentation, evidence, or information
  302  required by rules adopted by the department.
  303         (5) Upon receipt of the application, the department shall:
  304  forward one full set of fingerprints of the applicant to the
  305  Department of Law Enforcement for statewide criminal records
  306  checks. The Department of Law Enforcement shall forward the
  307  second set of fingerprints to the Federal Bureau of
  308  Investigation for national criminal records checks. The results
  309  of the state and national records checks shall be submitted to
  310  the department.
  311         (a)Request that the clerk of the court provide a certified
  312  copy of the order vacating the conviction and sentence and
  313  certified copies of the original judgment and sentence. The
  314  clerk shall provide these records at no charge.
  315         (b)Request that the Department of Corrections provide
  316  documentation demonstrating the length of the sentence served,
  317  including the dates of the wrongfully incarcerated person’s
  318  admission into and release from the custody of the Department of
  319  Corrections. The Department of Corrections shall provide this
  320  documentation at no charge.
  321         (c)(6)Upon receipt of an application, the department shall
  322  Examine the application and notify the wrongfully incarcerated
  323  person claimant within 30 calendar days of any errors or
  324  omissions, and request any additional information relevant to
  325  the review of the application. The wrongfully incarcerated
  326  person claimant shall have 15 days after proper notification of
  327  any existing errors or omissions to supplement the application.
  328  The department may not deny an application for failure of the
  329  wrongfully incarcerated person claimant to correct an error or
  330  omission or supply additional information unless the department
  331  timely notified the person claimant of such errors or omissions
  332  or requested the additional information within the 30-day period
  333  specified in this paragraph subsection. The department shall
  334  process and review each completed application within 90 calendar
  335  days. Once the department determines whether a claim for
  336  compensation meets the requirements of this act, the department
  337  shall notify the wrongfully incarcerated person claimant within
  338  5 business days of that determination.
  339         (6)(7) If the department determines that a wrongfully
  340  incarcerated person claimant meets the requirements of this act,
  341  the wrongfully incarcerated person who is the subject of the
  342  claim becomes entitled to compensation, subject to the
  343  provisions in s. 961.06.
  344         Section 4. Section 961.06, Florida Statutes, is amended to
  345  read:
  346         961.06 Compensation for wrongful incarceration.—
  347         (1) Except as otherwise provided in this act and subject to
  348  the limitations and procedures prescribed in this section, a
  349  person who is found to be entitled to compensation under the
  350  provisions of this act is entitled to:
  351         (a) Monetary compensation for wrongful incarceration, which
  352  shall be calculated at a rate of $50,000 for each year of
  353  wrongful incarceration, prorated as necessary to account for a
  354  portion of a year. For persons found to be wrongfully
  355  incarcerated after December 31, 2008, the Chief Financial
  356  Officer may adjust the annual rate of compensation for inflation
  357  using the change in the December-to-December “Consumer Price
  358  Index for All Urban Consumers” of the Bureau of Labor Statistics
  359  of the Department of Labor;
  360         (b) A waiver of tuition and fees for up to 120 hours of
  361  instruction at any career center established under s. 1001.44,
  362  any community college as defined in s. 1000.21(3), or any state
  363  university as defined in s. 1000.21(6), if the wrongfully
  364  incarcerated person meets and maintains the regular admission
  365  requirements of such career center, community college, or state
  366  university; remains registered at such educational institution;
  367  and makes satisfactory academic progress as defined by the
  368  educational institution in which the wrongfully incarcerated
  369  person claimant is enrolled;
  370         (c) The amount of any fine, penalty, or court costs imposed
  371  and paid by the wrongfully incarcerated person;
  372         (d) The amount of any reasonable attorney’s fees and
  373  expenses incurred and paid by the wrongfully incarcerated person
  374  in connection with all criminal proceedings and appeals
  375  regarding the wrongful conviction, to be calculated by the
  376  department based upon the supporting documentation submitted as
  377  specified in s. 961.05; and
  378         (e)The amount of any reasonable attorney’s fees and
  379  expenses incurred by the wrongfully incarcerated person in
  380  connection with obtaining compensation under this act, not to
  381  exceed $50,000, to be calculated by the department upon the
  382  submission of supporting documentation of those fees and
  383  expenses. The Chief Financial Officer shall pay the attorney’s
  384  fees and costs directly to the attorney, and the attorney may
  385  not receive additional fees and costs from the wrongfully
  386  incarcerated person by another arrangement or contract; and
  387         (f)(e) Notwithstanding any provision to the contrary in s.
  388  943.0585, immediate administrative expunction of the wrongfully
  389  incarcerated person’s criminal record resulting from his or her
  390  wrongful arrest, wrongful conviction, and wrongful
  391  incarceration. The Department of Legal Affairs and the
  392  Department of Law Enforcement shall, upon a determination that a
  393  person claimant is entitled to compensation, immediately take
  394  all action necessary to administratively expunge the person’s
  395  claimant’s criminal record arising from his or her wrongful
  396  arrest, wrongful conviction, and wrongful incarceration. All
  397  fees for this process shall be waived.
  398  
  399  The total compensation awarded under paragraphs (a), (c), and
  400  (d), and (e) may not exceed $2 million. Except as provided in
  401  paragraph (e), no further award for attorney’s fees, lobbying
  402  fees, costs, or other similar expenses shall be made by the
  403  state.
  404         (2) In calculating monetary compensation under paragraph
  405  (1)(a), a wrongfully incarcerated person who is placed on parole
  406  or community supervision while serving the sentence resulting
  407  from the wrongful conviction and who commits anything less than
  408  a felony law violation that results in revocation of the parole
  409  or community supervision is eligible for compensation for the
  410  total number of years incarcerated. A wrongfully incarcerated
  411  person who commits a felony law violation that results in
  412  revocation of the parole or community supervision is ineligible
  413  for any compensation under subsection (1).
  414         (3) Within 15 calendar days after issuing notice to the
  415  wrongfully incarcerated person claimant that his or her claim
  416  satisfies all of the requirements under this act, the department
  417  shall notify the Chief Financial Officer to draw a warrant from
  418  the General Revenue Fund or another source designated by the
  419  Legislature in law for the purchase of an annuity for the
  420  wrongfully incarcerated person claimant based on the total
  421  amount determined by the department under this act.
  422         (4) The Chief Financial Officer shall issue payment in the
  423  amount determined by the department to an insurance company or
  424  other financial institution admitted and authorized to issue
  425  purchase an annuity contracts in this state to purchase an
  426  annuity, selected by the wrongfully incarcerated person, on
  427  behalf of the claimant for a term of not less than 10 years. The
  428  Chief Financial Officer shall execute all necessary agreements
  429  to implement this act and maximize the benefit to the wrongfully
  430  incarcerated person. The terms of the annuity shall:
  431         (a) Provide that the annuity may not be sold, discounted,
  432  or used as security for a loan or mortgage by the wrongfully
  433  incarcerated person applicant.
  434         (b) Contain beneficiary provisions for the continued
  435  disbursement of the annuity in the event of the death of the
  436  wrongfully incarcerated person applicant.
  437         (5) Before the department approves the application under s.
  438  961.05 Chief Financial Officer draws the warrant for the
  439  purchase of the annuity, the wrongfully incarcerated person
  440  claimant must sign a release and waiver on behalf of the
  441  wrongfully incarcerated person claimant and his or her heirs,
  442  successors, and assigns, forever releasing the state or any
  443  agency, instrumentality, or any political subdivision thereof,
  444  or any other entity subject to the provisions of s. 768.28, from
  445  all present or future claims that the wrongfully incarcerated
  446  person claimant or his or her heirs, successors, or assigns may
  447  have against such entities arising out of the facts in
  448  connection with the wrongful conviction for which compensation
  449  is being sought under the act. The release and waiver must be
  450  provided to the department prior to the issuance of the warrant
  451  by the Chief Financial Officer.
  452         (6)(a) A wrongfully incarcerated person may not submit an
  453  application for compensation under this act if the person has a
  454  civil action lawsuit pending against the state or any agency,
  455  instrumentality, or any political subdivision thereof, or any
  456  other entity subject to the provisions of s. 768.28, in state or
  457  federal court requesting compensation arising out of the facts
  458  in connection with the wrongfully incarcerated persons
  459  claimants conviction and incarceration.
  460         (b)A wrongfully incarcerated person may not submit an
  461  application for compensation under this act if the person has
  462  received a prior judgment in his or her favor in a civil action
  463  against the state or any agency, instrumentality, or any
  464  political subdivision thereof, or against any other entity
  465  subject to s. 768.28, in state or federal court arising out of
  466  the wrongfully incarcerated person’s conviction and
  467  incarceration.
  468         (c)(b) A wrongfully incarcerated person may not submit an
  469  application for compensation under this act if the person is the
  470  subject of a claim bill pending for claims arising out of the
  471  facts in connection with the wrongfully incarcerated persons
  472  claimants conviction and incarceration.
  473         (d)(c) Once an application is filed under this act, a
  474  wrongfully incarcerated person may not pursue recovery under a
  475  claim bill until the final disposition of the application.
  476         (e)(d) Any amount awarded under this act is intended to
  477  provide the sole compensation for any and all present and future
  478  claims arising out of the facts in connection with the
  479  wrongfully incarcerated persons claimants conviction and
  480  incarceration. Upon notification by the department that an
  481  application meets the requirements of this act, a wrongfully
  482  incarcerated person may not recover under a claim bill.
  483         (f)(e) Any compensation awarded under a claim bill shall be
  484  the sole redress for claims arising out of the facts in
  485  connection with the wrongfully incarcerated person’s claimants
  486  conviction and incarceration and, upon any award of compensation
  487  to a wrongfully incarcerated person under a claim bill, the
  488  person may not receive compensation under this act.
  489         (7) Any payment made under this act does not constitute a
  490  waiver of any defense of sovereign immunity or an increase in
  491  the limits of liability on behalf of the state or any person
  492  subject to the provisions of s. 768.28 or other law.
  493         Section 5. This act shall take effect July 1, 2012.