Florida Senate - 2017                                     SB 556
       
       
        
       By Senator Bracy
       
       11-00428-17                                            2017556__
    1                        A bill to be entitled                      
    2         An act relating to compensation of victims of wrongful
    3         incarceration; reordering and amending s. 961.02,
    4         F.S.; defining the term “violent felony”; amending s.
    5         961.04, F.S.; providing that a person is disqualified
    6         from receiving compensation under the Victims of
    7         Wrongful Incarceration Compensation Act if, before or
    8         during the person’s wrongful conviction and
    9         incarceration, the person was convicted of, or pled
   10         guilty or nolo contendere to, any violent felony;
   11         amending s. 961.06, F.S.; specifying that a wrongfully
   12         incarcerated person who is released from wrongful
   13         incarceration to parole or community supervision and
   14         who commits a violent felony, rather than a felony law
   15         violation, resulting in revocation of the parole or
   16         community supervision is ineligible for compensation;
   17         reenacting s. 961.03(1)(a), (2), (3), and (4), F.S.,
   18         relating to determination of eligibility for
   19         compensation, to incorporate the amendments made to s.
   20         961.04, F.S., in references thereto; reenacting ss.
   21         961.05(6), 961.055(1), and 961.056(4), F.S., relating
   22         to the determination of entitlement to compensation,
   23         the application for compensation for a wrongfully
   24         incarcerated person and exemption from application by
   25         nolle prosequi, and alternative application for
   26         compensation for a wrongfully incarcerated person,
   27         respectively, to incorporate the amendment made to s.
   28         961.06, F.S., in references thereto; providing an
   29         effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Section 961.02, Florida Statutes, is reordered
   34  and amended to read:
   35         961.02 Definitions.—As used in ss. 961.01-961.07, the term:
   36         (1) “Act” means the Victims of Wrongful Incarceration
   37  Compensation Act.
   38         (2) “Department” means the Department of Legal Affairs.
   39         (3) “Division” means the Division of Administrative
   40  Hearings.
   41         (7)(4) “Wrongfully incarcerated person” means a person
   42  whose felony conviction and sentence have been vacated by a
   43  court of competent jurisdiction and who is the subject of an
   44  order issued by the original sentencing court pursuant to s.
   45  961.03, with respect to whom pursuant to the requirements of s.
   46  961.03, the original sentencing court has issued its order
   47  finding that the person did not commit neither committed the act
   48  or nor the offense that served as the basis for the conviction
   49  and incarceration and that the person did not aid, abet, or act
   50  as an accomplice or accessory to a person who committed the act
   51  or offense.
   52         (4)(5) “Eligible for compensation” means that a person
   53  meets the definition of the term “wrongfully incarcerated
   54  person” and is not disqualified from seeking compensation under
   55  the criteria prescribed in s. 961.04.
   56         (5)(6) “Entitled to compensation” means that a person meets
   57  the definition of the term “eligible for compensation” and
   58  satisfies the application requirements prescribed in s. 961.05,
   59  and may receive compensation pursuant to s. 961.06.
   60         (6) “Violent felony” means a felony listed in s.
   61  775.084(1)(c)1. or s. 948.06(8)(c).
   62         Section 2. Section 961.04, Florida Statutes, is amended to
   63  read:
   64         961.04 Eligibility for compensation for wrongful
   65  incarceration.—A wrongfully incarcerated person is not eligible
   66  for compensation under the act if:
   67         (1) Before the person’s wrongful conviction and
   68  incarceration, the person was convicted of, or pled guilty or
   69  nolo contendere to, regardless of adjudication, any violent
   70  felony offense, or a crime committed in another jurisdiction the
   71  elements of which would constitute a violent felony in this
   72  state, or a crime committed against the United States which is
   73  designated a violent felony, excluding any delinquency
   74  disposition;
   75         (2) During the person’s wrongful incarceration, the person
   76  was convicted of, or pled guilty or nolo contendere to,
   77  regardless of adjudication, any violent felony offense; or
   78         (3) During the person’s wrongful incarceration, the person
   79  was also serving a concurrent sentence for another felony for
   80  which the person was not wrongfully convicted.
   81         Section 3. Subsection (2) of section 961.06, Florida
   82  Statutes, is amended to read:
   83         961.06 Compensation for wrongful incarceration.—
   84         (2) In calculating monetary compensation under paragraph
   85  (1)(a), a wrongfully incarcerated person who is placed on parole
   86  or community supervision while serving the sentence resulting
   87  from the wrongful conviction and who commits anything less than
   88  a violent felony law violation that results in revocation of the
   89  parole or community supervision is eligible for compensation for
   90  the total number of years incarcerated. A wrongfully
   91  incarcerated person who commits a violent felony law violation
   92  that results in revocation of the parole or community
   93  supervision is ineligible for any compensation under subsection
   94  (1).
   95         Section 4. For the purpose of incorporating the amendments
   96  made by this act to section 961.04, Florida Statutes, in
   97  references thereto, paragraph (a) of subsection (1) and
   98  subsections (2), (3), and (4) of section 961.03, Florida
   99  Statutes, are reenacted to read:
  100         961.03 Determination of status as a wrongfully incarcerated
  101  person; determination of eligibility for compensation.—
  102         (1)(a) In order to meet the definition of a “wrongfully
  103  incarcerated person” and “eligible for compensation,” upon entry
  104  of an order, based upon exonerating evidence, vacating a
  105  conviction and sentence, a person must set forth the claim of
  106  wrongful incarceration under oath and with particularity by
  107  filing a petition with the original sentencing court, with a
  108  copy of the petition and proper notice to the prosecuting
  109  authority in the underlying felony for which the person was
  110  incarcerated. At a minimum, the petition must:
  111         1. State that verifiable and substantial evidence of actual
  112  innocence exists and state with particularity the nature and
  113  significance of the verifiable and substantial evidence of
  114  actual innocence; and
  115         2. State that the person is not disqualified, under the
  116  provisions of s. 961.04, from seeking compensation under this
  117  act.
  118         (2) The prosecuting authority must respond to the petition
  119  within 30 days. The prosecuting authority may respond:
  120         (a) By certifying to the court that, based upon the
  121  petition and verifiable and substantial evidence of actual
  122  innocence, no further criminal proceedings in the case at bar
  123  can or will be initiated by the prosecuting authority, that no
  124  questions of fact remain as to the petitioner’s wrongful
  125  incarceration, and that the petitioner is not ineligible from
  126  seeking compensation under the provisions of s. 961.04; or
  127         (b) By contesting the nature, significance, or effect of
  128  the evidence of actual innocence, the facts related to the
  129  petitioner’s alleged wrongful incarceration, or whether the
  130  petitioner is ineligible from seeking compensation under the
  131  provisions of s. 961.04.
  132         (3) If the prosecuting authority responds as set forth in
  133  paragraph (2)(a), the original sentencing court, based upon the
  134  evidence of actual innocence, the prosecuting authority’s
  135  certification, and upon the court’s finding that the petitioner
  136  has presented clear and convincing evidence that the petitioner
  137  committed neither the act nor the offense that served as the
  138  basis for the conviction and incarceration, and that the
  139  petitioner did not aid, abet, or act as an accomplice to a
  140  person who committed the act or offense, shall certify to the
  141  department that the petitioner is a wrongfully incarcerated
  142  person as defined by this act. Based upon the prosecuting
  143  authority’s certification, the court shall also certify to the
  144  department that the petitioner is eligible for compensation
  145  under the provisions of s. 961.04.
  146         (4)(a) If the prosecuting authority responds as set forth
  147  in paragraph (2)(b), the original sentencing court shall make a
  148  determination from the pleadings and supporting documentation
  149  whether, by a preponderance of the evidence, the petitioner is
  150  ineligible for compensation under the provisions of s. 961.04,
  151  regardless of his or her claim of wrongful incarceration. If the
  152  court finds the petitioner ineligible under the provisions of s.
  153  961.04, it shall dismiss the petition.
  154         (b) If the prosecuting authority responds as set forth in
  155  paragraph (2)(b), and the court determines that the petitioner
  156  is eligible under the provisions of s. 961.04, but the
  157  prosecuting authority contests the nature, significance or
  158  effect of the evidence of actual innocence, or the facts related
  159  to the petitioner’s alleged wrongful incarceration, the court
  160  shall set forth its findings and transfer the petition by
  161  electronic means through the division’s website to the division
  162  for findings of fact and a recommended determination of whether
  163  the petitioner has established that he or she is a wrongfully
  164  incarcerated person who is eligible for compensation under this
  165  act.
  166         Section 5. For the purpose of incorporating the amendment
  167  made by this act to section 961.06, Florida Statutes, in a
  168  reference thereto, subsection (6) of section 961.05, Florida
  169  Statutes, is reenacted to read:
  170         961.05 Application for compensation for wrongful
  171  incarceration; administrative expunction; determination of
  172  entitlement to compensation.—
  173         (6) If the department determines that a claimant meets the
  174  requirements of this act, the wrongfully incarcerated person who
  175  is the subject of the claim becomes entitled to compensation,
  176  subject to the provisions in s. 961.06.
  177         Section 6. For the purpose of incorporating the amendments
  178  made by this act to section 961.06, Florida Statutes, in
  179  references thereto, subsection (1) of section 961.055, Florida
  180  Statutes, is reenacted to read:
  181         961.055 Application for compensation for a wrongfully
  182  incarcerated person; exemption from application by nolle
  183  prosequi.—
  184         (1) A person alleged to be a wrongfully incarcerated person
  185  who was convicted and sentenced to death on or before December
  186  31, 1979, is exempt from the application provisions of ss.
  187  961.03, 961.04, and 961.05 in the determination of wrongful
  188  incarceration and eligibility to receive compensation pursuant
  189  to s. 961.06 if:
  190         (a) The Governor issues an executive order appointing a
  191  special prosecutor to review the defendant’s conviction; and
  192         (b) The special prosecutor thereafter enters a nolle
  193  prosequi for the charges for which the defendant was convicted
  194  and sentenced to death.
  195         Section 7. For the purpose of incorporating the amendment
  196  made by this act to section 961.06, Florida Statutes, in a
  197  reference thereto, subsection (4) of section 961.056, Florida
  198  Statutes, is reenacted to read:
  199         961.056 Alternative application for compensation for a
  200  wrongfully incarcerated person.—
  201         (4) If the department determines that a claimant making
  202  application under this section meets the requirements of this
  203  chapter, the wrongfully incarcerated person is entitled to
  204  compensation under s. 961.06.
  205         Section 8. This act shall take effect October 1, 2017.