Florida Senate - 2015                                     SB 162
       
       
        
       By Senators Joyner and Bradley
       
       
       
       
       
       19-00004-15                                            2015162__
    1                        A bill to be entitled                      
    2         An act relating to compensation of victims of wrongful
    3         incarceration; amending s. 961.02, F.S.; defining the
    4         term “violent felony”; amending s. 961.04, F.S.;
    5         providing that a person is disqualified from receiving
    6         compensation under the Victims of Wrongful
    7         Incarceration Compensation Act if, before or during
    8         the person’s wrongful conviction and incarceration,
    9         the person was convicted of, pled guilty or nolo
   10         contendere to, or was serving a concurrent
   11         incarceration for, another violent felony; amending s.
   12         961.06, F.S.; providing that a wrongfully incarcerated
   13         person who commits a violent felony law violation,
   14         rather than a felony law violation, which results in
   15         revocation of parole or community supervision is
   16         ineligible for compensation; reenacting s.
   17         961.03(1)(a), (2), (3), and (4), F.S., relating to
   18         determination of status as a wrongfully incarcerated
   19         person and determination of eligibility for
   20         compensation, to incorporate the amendments made to s.
   21         961.04, F.S., in references thereto; reenacting s.
   22         961.055(1), F.S., relating to application for
   23         compensation for a wrongfully incarcerated person and
   24         exemption from application by nolle prosequi, to
   25         incorporate the amendments made to s. 961.04, F.S., in
   26         references thereto; providing an effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 961.02, Florida Statutes, is amended to
   31  read:
   32         961.02 Definitions.—As used in ss. 961.01-961.07, the term:
   33         (1) “Act” means the Victims of Wrongful Incarceration
   34  Compensation Act.
   35         (2) “Department” means the Department of Legal Affairs.
   36         (3) “Division” means the Division of Administrative
   37  Hearings.
   38         (4) “Wrongfully incarcerated person” means a person whose
   39  felony conviction and sentence have been vacated by a court of
   40  competent jurisdiction and, with respect to whom pursuant to the
   41  requirements of s. 961.03, the original sentencing court has
   42  issued its order finding that the person neither committed the
   43  act nor the offense that served as the basis for the conviction
   44  and incarceration and that the person did not aid, abet, or act
   45  as an accomplice or accessory to a person who committed the act
   46  or offense.
   47         (4)(5) “Eligible for compensation” means a person meets the
   48  definition of the term “wrongfully incarcerated person” and is
   49  not disqualified from seeking compensation under the criteria
   50  prescribed in s. 961.04.
   51         (5)(6) “Entitled to compensation” means a person meets the
   52  definition of the term “eligible for compensation” and satisfies
   53  the application requirements prescribed in s. 961.05, and may
   54  receive compensation pursuant to s. 961.06.
   55         (6) “Violent felony” means a felony offense listed in s.
   56  775.084(1)(c)1. or s. 948.06(8)(c).
   57         (7) “Wrongfully incarcerated person” means a person whose
   58  felony conviction and sentence have been vacated by a court of
   59  competent jurisdiction and the original sentencing court has
   60  issued its order, pursuant to the requirements of s. 961.03,
   61  finding that the person neither committed the act nor the
   62  offense that served as the basis for the conviction and
   63  incarceration and that the person did not aid, abet, or act as
   64  an accomplice or accessory to a person who committed the act or
   65  offense.
   66         Section 2. Section 961.04, Florida Statutes, is amended to
   67  read:
   68         961.04 Eligibility for compensation for wrongful
   69  incarceration.—A wrongfully incarcerated person is not eligible
   70  for compensation under the act if:
   71         (1) Before the person’s wrongful conviction and
   72  incarceration, the person was convicted of, or pled guilty or
   73  nolo contendere to, regardless of adjudication, any violent
   74  felony offense, or a crime committed in another jurisdiction the
   75  elements of which would constitute a violent felony in this
   76  state, or a crime committed against the United States which is
   77  designated a violent felony, excluding any delinquency
   78  disposition;
   79         (2) During the person’s wrongful incarceration, the person
   80  was convicted of, or pled guilty or nolo contendere to,
   81  regardless of adjudication, any violent felony offense; or
   82         (3) During the person’s wrongful incarceration, the person
   83  was also serving a concurrent sentence for another felony for
   84  which the person was not wrongfully convicted.
   85         Section 3. Subsection (2) of section 961.06, Florida
   86  Statutes, is amended to read:
   87         961.06 Compensation for wrongful incarceration.—
   88         (2) In calculating monetary compensation under paragraph
   89  (1)(a), a wrongfully incarcerated person who is placed on parole
   90  or community supervision while serving the sentence resulting
   91  from the wrongful conviction and who commits anything less than
   92  a violent felony law violation that results in revocation of the
   93  parole or community supervision is eligible for compensation for
   94  the total number of years incarcerated. A wrongfully
   95  incarcerated person who commits a violent felony law violation
   96  that results in revocation of the parole or community
   97  supervision is ineligible for any compensation under subsection
   98  (1).
   99         Section 4. For the purpose of incorporating the amendments
  100  made by this act to section 961.04, Florida Statutes, in
  101  references thereto, paragraph (a) of subsection (1) and
  102  subsections (2), (3), and (4) of section 961.03, Florida
  103  Statutes, are reenacted to read:
  104         961.03 Determination of status as a wrongfully incarcerated
  105  person; determination of eligibility for compensation.—
  106         (1)(a) In order to meet the definition of a “wrongfully
  107  incarcerated person” and “eligible for compensation,” upon entry
  108  of an order, based upon exonerating evidence, vacating a
  109  conviction and sentence, a person must set forth the claim of
  110  wrongful incarceration under oath and with particularity by
  111  filing a petition with the original sentencing court, with a
  112  copy of the petition and proper notice to the prosecuting
  113  authority in the underlying felony for which the person was
  114  incarcerated. At a minimum, the petition must:
  115         1. State that verifiable and substantial evidence of actual
  116  innocence exists and state with particularity the nature and
  117  significance of the verifiable and substantial evidence of
  118  actual innocence; and
  119         2. State that the person is not disqualified, under the
  120  provisions of s. 961.04, from seeking compensation under this
  121  act.
  122         (2) The prosecuting authority must respond to the petition
  123  within 30 days. The prosecuting authority may respond:
  124         (a) By certifying to the court that, based upon the
  125  petition and verifiable and substantial evidence of actual
  126  innocence, no further criminal proceedings in the case at bar
  127  can or will be initiated by the prosecuting authority, that no
  128  questions of fact remain as to the petitioner’s wrongful
  129  incarceration, and that the petitioner is not ineligible from
  130  seeking compensation under the provisions of s. 961.04; or
  131         (b) By contesting the nature, significance, or effect of
  132  the evidence of actual innocence, the facts related to the
  133  petitioner’s alleged wrongful incarceration, or whether the
  134  petitioner is ineligible from seeking compensation under the
  135  provisions of s. 961.04.
  136         (3) If the prosecuting authority responds as set forth in
  137  paragraph (2)(a), the original sentencing court, based upon the
  138  evidence of actual innocence, the prosecuting authority’s
  139  certification, and upon the court’s finding that the petitioner
  140  has presented clear and convincing evidence that the petitioner
  141  committed neither the act nor the offense that served as the
  142  basis for the conviction and incarceration, and that the
  143  petitioner did not aid, abet, or act as an accomplice to a
  144  person who committed the act or offense, shall certify to the
  145  department that the petitioner is a wrongfully incarcerated
  146  person as defined by this act. Based upon the prosecuting
  147  authority’s certification, the court shall also certify to the
  148  department that the petitioner is eligible for compensation
  149  under the provisions of s. 961.04.
  150         (4)(a) If the prosecuting authority responds as set forth
  151  in paragraph (2)(b), the original sentencing court shall make a
  152  determination from the pleadings and supporting documentation
  153  whether, by a preponderance of the evidence, the petitioner is
  154  ineligible for compensation under the provisions of s. 961.04,
  155  regardless of his or her claim of wrongful incarceration. If the
  156  court finds the petitioner ineligible under the provisions of s.
  157  961.04, it shall dismiss the petition.
  158         (b) If the prosecuting authority responds as set forth in
  159  paragraph (2)(b), and the court determines that the petitioner
  160  is eligible under the provisions of s. 961.04, but the
  161  prosecuting authority contests the nature, significance or
  162  effect of the evidence of actual innocence, or the facts related
  163  to the petitioner’s alleged wrongful incarceration, the court
  164  shall set forth its findings and transfer the petition by
  165  electronic means through the division’s website to the division
  166  for findings of fact and a recommended determination of whether
  167  the petitioner has established that he or she is a wrongfully
  168  incarcerated person who is eligible for compensation under this
  169  act.
  170         Section 5. For the purpose of incorporating the amendments
  171  made by this act to section 961.04, Florida Statutes, in
  172  references thereto, subsection (1) of section 961.055, Florida
  173  Statutes, is reenacted to read:
  174         961.055 Application for compensation for a wrongfully
  175  incarcerated person; exemption from application by nolle
  176  prosequi.—
  177         (1) A person alleged to be a wrongfully incarcerated person
  178  who was convicted and sentenced to death on or before December
  179  31, 1979, is exempt from the application provisions of ss.
  180  961.03, 961.04, and 961.05 in the determination of wrongful
  181  incarceration and eligibility to receive compensation pursuant
  182  to s. 961.06 if:
  183         (a) The Governor issues an executive order appointing a
  184  special prosecutor to review the defendant’s conviction; and
  185         (b) The special prosecutor thereafter enters a nolle
  186  prosequi for the charges for which the defendant was convicted
  187  and sentenced to death.
  188         Section 6. This act shall take effect October 1, 2015.