Senate Bill sb1964c2

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    Florida Senate - 2005                    CS for CS for SB 1964

    By the Committees on Criminal Justice; Judiciary; and Senators
    Webster, Haridopolos and Lynn




    591-2327-05

  1                      A bill to be entitled

  2         An act relating to compensation for wrongfully

  3         incarcerated persons; creating s. 961.01, F.S.;

  4         providing a short title; creating s. 961.02,

  5         F.S.; defining the term "wrongfully

  6         incarcerated person"; requiring courts to

  7         determine whether certain persons are

  8         wrongfully incarcerated persons; authorizing

  9         petitions to the court for a determination of

10         wrongful conviction; creating s. 961.03, F.S.;

11         authorizing compensation for certain wrongfully

12         incarcerated persons; providing exceptions and

13         limitations; creating s. 961.04, F.S.;

14         providing procedures to apply to the Attorney

15         General for compensation; providing for presuit

16         negotiation of compensation; authorizing

17         lawsuits against the state for determination of

18         compensation; providing for recovery of certain

19         fees and costs; providing for determination of

20         such fees and costs; limiting total

21         compensation; providing for the manner of

22         payment of compensation; providing restrictions

23         on use of compensation; providing timeframes

24         for applying for compensation; creating s.

25         961.05, F.S.; providing rulemaking authority;

26         providing an effective date.

27  

28         WHEREAS, the Legislature finds that wrongfully

29  incarcerated persons have been deprived of their liberty, and

30  

31  

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    Florida Senate - 2005                    CS for CS for SB 1964
    591-2327-05




 1         WHEREAS, the Legislature finds that innocent persons

 2  who have been wrongfully incarcerated should have the

 3  opportunity to lead normal lives, and

 4         WHEREAS, wrongfully incarcerated persons or their

 5  families may have expended large sums of money and encumbered

 6  real property to defend against wrongful incarceration, and

 7         WHEREAS, the Legislature finds that the incarceration

 8  of an innocent person is a taking of a person's liberty for

 9  which compensation is due, and

10         WHEREAS, the Legislature has a responsibility to manage

11  state resources for the benefit of all residents of the state,

12  NOW, THEREFORE,

13  

14  Be It Enacted by the Legislature of the State of Florida:

15  

16         Section 1.  Section 961.01, Florida Statutes, is

17  created to read:

18         961.01  Short title.--Sections 961.01-961.05 may be

19  cited as the "Wrongful Incarceration Compensation Act."

20         Section 2.  Section 961.02, Florida Statutes, is

21  created to read:

22         961.02  Definition; finding of wrongful incarceration

23  upon release from incarceration for felony offenses.--

24         (1)  As used in ss. 961.01-961.05, a "wrongfully

25  incarcerated person" means a person who has been ordered

26  released from incarceration for a felony conviction upon a

27  finding by a court, under clear and convincing evidence, that:

28         (a)  The person did not commit the offense that

29  resulted in the conviction and incarceration; and

30         (b)  The person did not aid, abet, or act as an

31  accomplice to a person who committed the offense.

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    Florida Senate - 2005                    CS for CS for SB 1964
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 1         (2)  Whenever a court, based on exonerating evidence,

 2  enters an order releasing a person serving a sentence for a

 3  felony conviction, the court must find whether the person is a

 4  wrongfully incarcerated person.  The court must describe in

 5  detail the evidence on which the finding is based.

 6         (3)  A person who has been ordered released from

 7  incarceration for a felony conviction by a court based on

 8  exonerating evidence on or after October 1, 2001, may petition

 9  the court for a determination of whether the person is a

10  wrongfully incarcerated person.

11         Section 3.  Section 961.03, Florida Statutes, is

12  created to read:

13         961.03  Compensation for wrongful incarceration.--

14         (1)  Except as otherwise provided in this section, and

15  subject to the limitations and procedures prescribed in s.

16  961.04, a person who is found to be a wrongfully incarcerated

17  person is entitled to reasonable compensation for:

18         (a)  Loss of wages, salary, or other earned income;

19         (b)  The amount of any fine or court costs imposed and

20  paid;

21         (c)  Actual costs of attorney's fees and other expenses

22  incurred by the wrongfully incarcerated person or his or her

23  family for all associated criminal proceedings and appeals

24  and, if applicable, for obtaining release from incarceration;

25         (d)  The amount of any fees paid to the Department of

26  Corrections for any required goods or services received during

27  incarceration;

28         (e)  Loss of assets due to foreclosure, repossession,

29  or other methods of recovery by a creditor;

30         (f)  Loss of savings and interest;

31         (g)  Lost earnings capacity;

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    Florida Senate - 2005                    CS for CS for SB 1964
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 1         (h)  The value of services performed for the state

 2  while incarcerated;

 3         (i)  The reasonable cost of future psychological

 4  counseling; and

 5         (j)  The reasonable amount of any other losses.

 6         (2)  Compensation to a wrongfully incarcerated person

 7  may not include punitive or exemplary damages or compensation

 8  for pain and suffering, humiliation, loss of consortium,

 9  emotional distress, or similar damages. It is the intent of

10  the Legislature to limit compensation of a wrongfully

11  incarcerated person to actual financial losses and expenses

12  directly resulting from the wrongful incarceration.

13         (3)  A person who has been convicted of a felony other

14  than a felony for which he or she has been found to be a

15  wrongfully incarcerated person is not entitled to

16  compensation.

17         (4)  A person is not entitled to compensation if he or

18  she pled guilty to the offense for which he or she was

19  wrongfully convicted.

20         Section 4.  Section 961.04, Florida Statutes, is

21  created to read:

22         961.04  Application for compensation for wrongful

23  incarceration.--

24         (1)  A wrongfully incarcerated person may apply to the

25  Attorney General for compensation for losses caused by the

26  incarceration.  The application, at a minimum, must include:

27         (a)  A certified copy of the order finding the

28  applicant to be a wrongfully incarcerated person;

29         (b)  Documentation of the length of the sentence

30  served;

31  

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    Florida Senate - 2005                    CS for CS for SB 1964
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 1         (c)  Available documentation of employment prior to

 2  incarceration;

 3         (d)  Documentation of education attained prior to and

 4  during incarceration;

 5         (e)  Available documentation of income earned prior to

 6  incarceration;

 7         (f)  Available documentation of costs of defense and

 8  other expenses that were paid by the wrongfully incarcerated

 9  person or his or her family;

10         (g)  Documentation of encumbrances placed on real

11  property or loans used to pay attorney's fees to defend

12  against or seek release from incarceration;

13         (h)  Documentation of real property in which the

14  applicant owned an interest which has been foreclosed upon due

15  to the incarceration;

16         (i)  Documentation of family status prior to

17  incarceration;

18         (j)  Documentation of criminal history;

19         (k)  Other documentation that the applicant believes

20  should be considered for determining compensation; and

21         (l)  Other documentation, evidence, or information

22  required by rules adopted by the Department of Legal Affairs

23  on behalf of the Attorney General.

24         (2)  Upon receipt of an application for compensation,

25  the Attorney General shall examine the application and, within

26  30 days after such receipt, notify the applicant of any

27  apparent errors or omissions and request any additional

28  information the Office of the Attorney General may by law

29  require. The applicant shall have 30 days following the

30  receipt of a request for additional information to provide the

31  information to the Attorney General. Within 60 days after the

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    Florida Senate - 2005                    CS for CS for SB 1964
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 1  time for completion of an application has expired, the

 2  Attorney General must negotiate in good faith with the

 3  wrongfully incarcerated person for the amount of compensation.

 4  The Attorney General must provide the wrongfully incarcerated

 5  person with a written offer and, if requested, a copy of the

 6  information on which the offer is based. The applicant must be

 7  given at least 30 days to respond to the offer.

 8         (3)  If the applicant rejects the offer to settle his

 9  or her claim for compensation, the applicant may file suit

10  against the state for compensation in the circuit court in

11  which the applicant was convicted. The jury shall determine

12  solely the amount of compensation to be paid.

13         (a)  The state shall pay attorney's fees as well as all

14  reasonable costs incurred by the applicant in proceedings in

15  circuit court, including, but not limited to, reasonable

16  accountant and actuary fees, if the judgment of the court is

17  greater than a final written offer by the Attorney General.

18         (b)  At least 30 days prior to a hearing to assess

19  costs under this subsection, the applicant's attorney shall

20  submit to the Attorney General, for each expert witness,

21  complete time records and a detailed statement of services

22  rendered by date, the nature of services performed, the time

23  spent performing such services, and costs incurred.

24         (c)  In assessing costs, the court shall consider all

25  factors relevant to the reasonableness of the costs,

26  including, but not limited to, the fees paid to similar

27  experts retained in the case by the Attorney General and the

28  reasonable costs of similar services by similarly qualified

29  persons.

30         (d)  In assessing costs to be paid by the state, the

31  court shall be guided by the amount the applicant would

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    Florida Senate - 2005                    CS for CS for SB 1964
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 1  ordinarily have been expected to pay for the services rendered

 2  if the state were not responsible for the costs.

 3         (e)  The court shall make specific findings that

 4  justify each sum awarded as an expert witness fee.

 5         (4)  Compensation for attorney's fees and other

 6  expenses paid by a family member of the wrongfully

 7  incarcerated person for all associated criminal proceedings

 8  and appeals and, if applicable, for obtaining the release from

 9  incarceration must be paid to the family member who paid the

10  expenses.

11         (5)  The maximum recovery available to a single

12  applicant is $5 million.

13         (a)  The first $500,000 of any recovery shall be paid

14  by lump sum.

15         (b)  The portion of any recovery above $500,000 shall

16  be used to purchase an annuity to provide equal monthly

17  installments to the applicant for 10 years beginning 1 year

18  after a settlement is reached or a final judgment is entered

19  awarding compensation.

20         1.  The annuity shall provide that it may not be sold,

21  discounted, or used as security for loans or mortgages by the

22  applicant.

23         2.  The annuity shall contain beneficiary provisions

24  providing for the continued disbursement of the annuity in the

25  event of the death of the applicant.

26         3.  The annuity must also contain a provision providing

27  that the annuity becomes payable to the state in the event

28  that the applicant is convicted of a felony after an award of

29  compensation. The Attorney General and the applicant must

30  report the existence of a felony conviction to the issuer of

31  the annuity.

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    Florida Senate - 2005                    CS for CS for SB 1964
    591-2327-05




 1         (6)  Except as provided in subsection (3), no part of a

 2  settlement or judgment providing compensation to a wrongfully

 3  incarcerated person may be used to pay attorney's fees for

 4  services to obtain the compensation.

 5         (7)  An applicant for compensation under this section

 6  must apply for compensation by July 1, 2007, or within 2 years

 7  after he or she is ordered released from incarceration,

 8  whichever occurs later.

 9         Section 5.  Section 961.05, Florida Statutes, is

10  created to read:

11         961.05  Rules.--The Department of Legal Affairs, on

12  behalf of the Attorney General, may adopt rules under ss.

13  120.536(1) and 120.54 governing the forms and procedures

14  related to applications for compensation under the Wrongful

15  Incarceration Compensation Act.

16         Section 6.  This act shall take effect July 1, 2005.

17  

18          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
19                            CS/SB 1964

20                                 

21  Eliminates the provision in the bill which would off-set
    compensation for the wrongfully incarcerated person for
22  education and medical services he or she received while
    incarcerated.
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