CS for CS for SB 346 First Engrossed
2020346e1
1 A bill to be entitled
2 An act relating to criminal justice; amending s.
3 893.13, F.S.; prohibiting the imprisonment for longer
4 than a certain time for persons who possess, purchase,
5 or possess with the intent to purchase less than
6 specified amounts of certain substances; providing
7 exceptions; amending s. 893.135, F.S.; authorizing a
8 court to impose a sentence other than the mandatory
9 minimum term of imprisonment and mandatory fine for a
10 person convicted of trafficking if the court makes
11 certain findings on the record; amending s. 961.03,
12 F.S.; extending the filing deadline for a petition
13 claiming wrongful incarceration; providing limited
14 retroactivity for filing a petition claiming wrongful
15 incarceration; amending s. 961.04, F.S.; deleting
16 eligibility requirements relating to a person’s
17 conduct before the person’s wrongful conviction or
18 incarceration; amending s. 961.06, F.S.; requiring the
19 state to deduct the amount of a civil award from the
20 state compensation amount owed if the claimant first
21 receives a civil award; deleting a requirement that a
22 wrongfully incarcerated person sign a liability
23 release before receiving compensation; requiring a
24 claimant to reimburse the state for any difference
25 between state compensation and a civil award if the
26 claimant receives statutory compensation prior to a
27 civil award; deleting provisions prohibiting an
28 application for compensation if the applicant has a
29 pending civil suit requesting compensation; requiring
30 a claimant to notify the Department of Legal Affairs
31 upon filing a civil action; requiring the department
32 to file a notice of payment of monetary compensation
33 in the civil action; amending s. 893.03, F.S.;
34 conforming a cross-reference; reenacting ss. 961.02(4)
35 and 961.03(1)(a), (2), (3), and (4), F.S., all
36 relating to eligibility for compensation for
37 wrongfully incarcerated persons; providing an
38 effective date.
39
40 Be It Enacted by the Legislature of the State of Florida:
41
42 Section 1. Present subsection (10) of section 893.13,
43 Florida Statutes, is redesignated as subsection (11), and a new
44 subsection (10) is added to that section, to read:
45 893.13 Prohibited acts; penalties.—
46 (10) Notwithstanding chapter 921, any provision of this
47 section, or any other law relating to the punishment for
48 possessing, purchasing, or possessing with the intent to
49 purchase a controlled substance, a person who possesses,
50 purchases, or possesses with the intent to purchase any of the
51 following substances may not be imprisoned for a term longer
52 than 12 months:
53 (a) One gram or less of a mixture or substance containing a
54 detectable amount of heroin;
55 (b) One gram or less of a mixture or substance containing a
56 detectable amount of:
57 1. Coca leaves, except coca leaves and extracts of coca
58 leaves from which cocaine, ecgonine, and derivations of ecgonine
59 or their salts have been removed;
60 2. Cocaine, its salts, optical and geometric isomers, and
61 salts of its isomers;
62 3. Ecgonine, its derivatives, their salts, isomers, and
63 salts of their isomers; or
64 4. Any compound, mixture, or preparation of any of the
65 substances described in subparagraph 1., subparagraph 2., or
66 subparagraph 3.
67 (c) One-tenth gram or less of a mixture or substance
68 containing a detectable amount of phencyclidine (PCP);
69 (d) Five-hundred micrograms or less of a mixture or
70 substance containing a detectable amount of lysergic acid
71 diethylamide (LSD); or
72 (e) One gram or less of methamphetamine, its salts,
73 isomers, and salts of its isomers, or one gram of a mixture or
74 substance containing a detectable amount of methamphetamine, its
75 salts, isomers, or salts of its isomers.
76 Section 2. Present subsections (6) and (7) of section
77 893.135, Florida Statutes, are redesignated as subsections (7)
78 and (8), respectively, and a new subsection (6) is added to that
79 section, to read:
80 893.135 Trafficking; mandatory sentences; suspension or
81 reduction of sentences; conspiracy to engage in trafficking.—
82 (6) Notwithstanding any provision of this section, a court
83 may impose a sentence for a violation of this section other than
84 the mandatory minimum term of imprisonment and mandatory fine
85 if, after the state has been afforded an opportunity on the
86 record to make a recommendation, the court finds on the record
87 that all of the following circumstances exist:
88 (a) The defendant has no prior conviction for a forcible
89 felony as defined in s. 776.08, has no prior conviction for
90 trafficking in a controlled substance, and has a total prior
91 record score of less than four points on his or her sentencing
92 scoresheet.
93 (b) The defendant did not use violence or credible threats
94 of violence, or possess a firearm or other dangerous weapon, or
95 induce another participant to use violence or credible threats
96 of violence, in connection with the offense.
97 (c) The offense did not result in the death of or serious
98 bodily injury to any person.
99 (d) The defendant was not an organizer, leader, manager, or
100 supervisor of others in the offense and was not engaged in a
101 continuing criminal enterprise as defined in s. 893.20.
102 (e) At the time of the sentencing hearing or earlier, the
103 defendant has truthfully provided to the state all information
104 and evidence that he or she possesses concerning the offense or
105 offenses that were part of the same course of conduct or of a
106 common scheme or plan.
107 (f) The defendant has not previously benefited from the
108 application of this subsection.
109
110 A court may not apply this subsection to an offense under this
111 section which carries a mandatory minimum term of imprisonment
112 of 7 years or more.
113 Section 3. Paragraph (b) of subsection (1) of section
114 961.03, Florida Statutes, is amended, and paragraph (c) is added
115 to that subsection, to read:
116 961.03 Determination of status as a wrongfully incarcerated
117 person; determination of eligibility for compensation.—
118 (1)
119 (b) The person must file the petition with the court:
120 1. Within 2 years after the order vacating a conviction and
121 sentence becomes final and the criminal charges against the
122 person are dismissed or the person is retried and found not
123 guilty, if the person’s conviction and sentence is vacated on or
124 after July 1, 2020.
125 2. By July 1, 2022, if the person’s conviction and sentence
126 was vacated and the criminal charges against the person were
127 dismissed or the person was retried and found not guilty after
128 July 1, 2008, but before July 1, 2020, and he or she previously
129 filed a claim under this section that was dismissed or did not
130 file a claim under this section because the:
131 a. Date when the criminal charges against the person were
132 dismissed or the date the person was acquitted upon retrial
133 occurred more than 90 days after the date of the final order
134 vacating the conviction and sentence; or
135 b. Person was convicted of an unrelated felony before his
136 or her wrongful conviction and incarceration and was previously
137 barred under s. 961.04.
138 1. Within 90 days after the order vacating a conviction and
139 sentence becomes final if the person’s conviction and sentence
140 is vacated on or after July 1, 2008.
141 2. By July 1, 2010, if the person’s conviction and sentence
142 was vacated by an order that became final prior to July 1, 2008.
143 (c) A deceased person’s heirs, successors, or assigns do
144 not have standing to file a claim on the deceased person’s
145 behalf under this section.
146 Section 4. Subsections (3), (4), and (5) of section 961.04,
147 Florida Statutes, are renumbered as subsections (1), (2), and
148 (3), respectively, and present subsections (1) and (2) of that
149 section are amended, to read:
150 961.04 Eligibility for compensation for wrongful
151 incarceration.—A wrongfully incarcerated person is not eligible
152 for compensation under the act if:
153 (1) Before the person’s wrongful conviction and
154 incarceration, the person was convicted of, or pled guilty or
155 nolo contendere to, regardless of adjudication, any violent
156 felony, or a crime committed in another jurisdiction the
157 elements of which would constitute a violent felony in this
158 state, or a crime committed against the United States which is
159 designated a violent felony, excluding any delinquency
160 disposition;
161 (2) Before the person’s wrongful conviction and
162 incarceration, the person was convicted of, or pled guilty or
163 nolo contendere to, regardless of adjudication, more than one
164 felony that is not a violent felony, or more than one crime
165 committed in another jurisdiction, the elements of which would
166 constitute a felony in this state, or more than one crime
167 committed against the United States which is designated a
168 felony, excluding any delinquency disposition;
169 Section 5. Section 961.06, Florida Statutes, is amended to
170 read:
171 961.06 Compensation for wrongful incarceration.—
172 (1) Except as otherwise provided in this act and subject to
173 the limitations and procedures prescribed in this section, a
174 person who is found to be entitled to compensation under the
175 provisions of this act is entitled to:
176 (a) Monetary compensation for wrongful incarceration, which
177 shall be calculated at a rate of $50,000 for each year of
178 wrongful incarceration, prorated as necessary to account for a
179 portion of a year. For persons found to be wrongfully
180 incarcerated after December 31, 2008, the Chief Financial
181 Officer may adjust the annual rate of compensation for inflation
182 using the change in the December-to-December “Consumer Price
183 Index for All Urban Consumers” of the Bureau of Labor Statistics
184 of the Department of Labor;
185 (b) A waiver of tuition and fees for up to 120 hours of
186 instruction at any career center established under s. 1001.44,
187 any Florida College System institution as defined in s.
188 1000.21(3), or any state university as defined in s. 1000.21(6),
189 if the wrongfully incarcerated person meets and maintains the
190 regular admission requirements of such career center, Florida
191 College System institution, or state university; remains
192 registered at such educational institution; and makes
193 satisfactory academic progress as defined by the educational
194 institution in which the claimant is enrolled;
195 (c) The amount of any fine, penalty, or court costs imposed
196 and paid by the wrongfully incarcerated person;
197 (d) The amount of any reasonable attorney attorney’s fees
198 and expenses incurred and paid by the wrongfully incarcerated
199 person in connection with all criminal proceedings and appeals
200 regarding the wrongful conviction, to be calculated by the
201 department based upon the supporting documentation submitted as
202 specified in s. 961.05; and
203 (e) Notwithstanding any provision to the contrary in s.
204 943.0583 or s. 943.0585, immediate administrative expunction of
205 the person’s criminal record resulting from his or her wrongful
206 arrest, wrongful conviction, and wrongful incarceration. The
207 Department of Legal Affairs and the Department of Law
208 Enforcement shall, upon a determination that a claimant is
209 entitled to compensation, immediately take all action necessary
210 to administratively expunge the claimant’s criminal record
211 arising from his or her wrongful arrest, wrongful conviction,
212 and wrongful incarceration. All fees for this process shall be
213 waived.
214
215 The total compensation awarded under paragraphs (a), (c), and
216 (d) may not exceed $2 million. No further award for attorney
217 attorney’s fees, lobbying fees, costs, or other similar expenses
218 shall be made by the state.
219 (2) In calculating monetary compensation under paragraph
220 (1)(a), a wrongfully incarcerated person who is placed on parole
221 or community supervision while serving the sentence resulting
222 from the wrongful conviction and who commits no more than one
223 felony that is not a violent felony which results in revocation
224 of the parole or community supervision is eligible for
225 compensation for the total number of years incarcerated. A
226 wrongfully incarcerated person who commits one violent felony or
227 more than one felony that is not a violent felony that results
228 in revocation of the parole or community supervision is
229 ineligible for any compensation under subsection (1).
230 (3) Within 15 calendar days after issuing notice to the
231 claimant that his or her claim satisfies all of the requirements
232 under this act, the department shall notify the Chief Financial
233 Officer to draw a warrant from the General Revenue Fund or
234 another source designated by the Legislature in law for the
235 purchase of an annuity for the claimant based on the total
236 amount determined by the department under this act.
237 (4) The Chief Financial Officer shall issue payment in the
238 amount determined by the department to an insurance company or
239 other financial institution admitted and authorized to issue
240 annuity contracts in this state to purchase an annuity or
241 annuities, selected by the wrongfully incarcerated person, for a
242 term of not less than 10 years. The Chief Financial Officer is
243 directed to execute all necessary agreements to implement this
244 act and to maximize the benefit to the wrongfully incarcerated
245 person. The terms of the annuity or annuities shall:
246 (a) Provide that the annuity or annuities may not be sold,
247 discounted, or used as security for a loan or mortgage by the
248 wrongfully incarcerated person.
249 (b) Contain beneficiary provisions for the continued
250 disbursement of the annuity or annuities in the event of the
251 death of the wrongfully incarcerated person.
252 (5) If, at the time monetary compensation is determined
253 under paragraph (1)(a), a court has previously entered a
254 monetary judgment in favor of the claimant in a civil action
255 related to the person’s wrongful incarceration, or the claimant
256 has entered into a settlement agreement with the state or any
257 political subdivision thereof related to the person’s wrongful
258 incarceration, the amount of the damages in the civil action or
259 settlement agreement, less any sums paid for attorney fees or
260 for costs incurred in litigating the civil action or obtaining
261 the settlement agreement, must be deducted from the total
262 monetary compensation to which the claimant is entitled under
263 this section Before the department approves the application for
264 compensation, the wrongfully incarcerated person must sign a
265 release and waiver on behalf of the wrongfully incarcerated
266 person and his or her heirs, successors, and assigns, forever
267 releasing the state or any agency, instrumentality, or any
268 political subdivision thereof, or any other entity subject to s.
269 768.28, from all present or future claims that the wrongfully
270 incarcerated person or his or her heirs, successors, or assigns
271 may have against such entities arising out of the facts in
272 connection with the wrongful conviction for which compensation
273 is being sought under the act.
274 (6) If subsection (5) does not apply, and if after the time
275 monetary compensation is determined under paragraph (1)(a) the
276 court enters a monetary judgment in favor of the claimant in a
277 civil action related to the person’s wrongful incarceration, or
278 the claimant enters into a settlement agreement with the state
279 or any political subdivision thereof related to the person’s
280 wrongful incarceration, the claimant must reimburse the state
281 for the monetary compensation in paragraph (1)(a), less any sums
282 paid for attorney fees or costs incurred in litigating the civil
283 action or obtaining the settlement agreement. A reimbursement
284 required under this subsection shall not exceed the amount of
285 the monetary award the claimant received for damages in a civil
286 action or settlement agreement. The court shall include in the
287 order of judgment an award to the state of any amount required
288 to be deducted under this subsection.
289 (6)(a) A wrongfully incarcerated person may not submit an
290 application for compensation under this act if the person has a
291 lawsuit pending against the state or any agency,
292 instrumentality, or any political subdivision thereof, or any
293 other entity subject to the provisions of s. 768.28, in state or
294 federal court requesting compensation arising out of the facts
295 in connection with the claimant’s conviction and incarceration.
296 (7)(a) The claimant shall notify the department upon filing
297 a civil action against the state or any political subdivision
298 thereof in which the claimant is seeking monetary damages
299 related to the claimant’s wrongful incarceration for which he or
300 she previously received or is applying to receive compensation
301 pursuant to paragraph (1)(a).
302 (b) Upon notice of the claimant’s civil action, the
303 department shall file in the case a notice of payment of
304 monetary compensation to the claimant under paragraph (1)(a).
305 The notice shall constitute a lien upon any judgment or
306 settlement recovered under the civil action that is equal to the
307 sum of monetary compensation paid to the claimant under
308 paragraph (1)(a), less any attorney fees and litigation costs.
309 (8)(a)(b) A wrongfully incarcerated person may not submit
310 an application for compensation under this act if the person is
311 the subject of a claim bill pending for claims arising out of
312 the facts in connection with the claimant’s conviction and
313 incarceration.
314 (b)(c) Once an application is filed under this act, a
315 wrongfully incarcerated person may not pursue recovery under a
316 claim bill until the final disposition of the application.
317 (c)(d) Any amount awarded under this act is intended to
318 provide the sole compensation for any and all present and future
319 claims arising out of the facts in connection with the
320 claimant’s conviction and incarceration. Upon notification by
321 the department that an application meets the requirements of
322 this act, a wrongfully incarcerated person may not recover under
323 a claim bill.
324 (d)(e) Any compensation awarded under a claim bill shall be
325 the sole redress for claims arising out of the facts in
326 connection with the claimant’s conviction and incarceration and,
327 upon any award of compensation to a wrongfully incarcerated
328 person under a claim bill, the person may not receive
329 compensation under this act.
330 (9)(7) Any payment made under this act does not constitute
331 a waiver of any defense of sovereign immunity or an increase in
332 the limits of liability on behalf of the state or any person
333 subject to the provisions of s. 768.28 or other law.
334 Section 6. Paragraph (c) of subsection (3) of section
335 893.03, Florida Statutes, is amended to read:
336 893.03 Standards and schedules.—The substances enumerated
337 in this section are controlled by this chapter. The controlled
338 substances listed or to be listed in Schedules I, II, III, IV,
339 and V are included by whatever official, common, usual,
340 chemical, trade name, or class designated. The provisions of
341 this section shall not be construed to include within any of the
342 schedules contained in this section any excluded drugs listed
343 within the purview of 21 C.F.R. s. 1308.22, styled “Excluded
344 Substances”; 21 C.F.R. s. 1308.24, styled “Exempt Chemical
345 Preparations”; 21 C.F.R. s. 1308.32, styled “Exempted
346 Prescription Products”; or 21 C.F.R. s. 1308.34, styled “Exempt
347 Anabolic Steroid Products.”
348 (3) SCHEDULE III.—A substance in Schedule III has a
349 potential for abuse less than the substances contained in
350 Schedules I and II and has a currently accepted medical use in
351 treatment in the United States, and abuse of the substance may
352 lead to moderate or low physical dependence or high
353 psychological dependence or, in the case of anabolic steroids,
354 may lead to physical damage. The following substances are
355 controlled in Schedule III:
356 (c) Unless specifically excepted or unless listed in
357 another schedule, any material, compound, mixture, or
358 preparation containing limited quantities of any of the
359 following controlled substances or any salts thereof:
360 1. Not more than 1.8 grams of codeine per 100 milliliters
361 or not more than 90 milligrams per dosage unit, with an equal or
362 greater quantity of an isoquinoline alkaloid of opium.
363 2. Not more than 1.8 grams of codeine per 100 milliliters
364 or not more than 90 milligrams per dosage unit, with recognized
365 therapeutic amounts of one or more active ingredients which are
366 not controlled substances.
367 3. Not more than 300 milligrams of hydrocodone per 100
368 milliliters or not more than 15 milligrams per dosage unit, with
369 a fourfold or greater quantity of an isoquinoline alkaloid of
370 opium.
371 4. Not more than 300 milligrams of hydrocodone per 100
372 milliliters or not more than 15 milligrams per dosage unit, with
373 recognized therapeutic amounts of one or more active ingredients
374 that are not controlled substances.
375 5. Not more than 1.8 grams of dihydrocodeine per 100
376 milliliters or not more than 90 milligrams per dosage unit, with
377 recognized therapeutic amounts of one or more active ingredients
378 which are not controlled substances.
379 6. Not more than 300 milligrams of ethylmorphine per 100
380 milliliters or not more than 15 milligrams per dosage unit, with
381 one or more active, nonnarcotic ingredients in recognized
382 therapeutic amounts.
383 7. Not more than 50 milligrams of morphine per 100
384 milliliters or per 100 grams, with recognized therapeutic
385 amounts of one or more active ingredients which are not
386 controlled substances.
387
388 For purposes of charging a person with a violation of s. 893.135
389 involving any controlled substance described in subparagraph 3.
390 or subparagraph 4., the controlled substance is a Schedule III
391 controlled substance pursuant to this paragraph but the weight
392 of the controlled substance per milliliters or per dosage unit
393 is not relevant to the charging of a violation of s. 893.135.
394 The weight of the controlled substance shall be determined
395 pursuant to s. 893.135(7) s. 893.135(6).
396 Section 7. For the purpose of incorporating the amendment
397 made by this act to section 961.04, Florida Statutes, in a
398 reference thereto, subsection (4) of section 961.02, Florida
399 Statutes, is reenacted to read:
400 961.02 Definitions.—As used in ss. 961.01-961.07, the term:
401 (4) “Eligible for compensation” means that a person meets
402 the definition of the term “wrongfully incarcerated person” and
403 is not disqualified from seeking compensation under the criteria
404 prescribed in s. 961.04.
405 Section 8. For the purpose of incorporating the amendments
406 made by this act to section 961.04, Florida Statutes, in
407 references thereto, paragraph (a) of subsection (1) and
408 subsections (2), (3), and (4) of section 961.03, Florida
409 Statutes, are reenacted to read:
410 961.03 Determination of status as a wrongfully incarcerated
411 person; determination of eligibility for compensation.—
412 (1)(a) In order to meet the definition of a “wrongfully
413 incarcerated person” and “eligible for compensation,” upon entry
414 of an order, based upon exonerating evidence, vacating a
415 conviction and sentence, a person must set forth the claim of
416 wrongful incarceration under oath and with particularity by
417 filing a petition with the original sentencing court, with a
418 copy of the petition and proper notice to the prosecuting
419 authority in the underlying felony for which the person was
420 incarcerated. At a minimum, the petition must:
421 1. State that verifiable and substantial evidence of actual
422 innocence exists and state with particularity the nature and
423 significance of the verifiable and substantial evidence of
424 actual innocence; and
425 2. State that the person is not disqualified, under the
426 provisions of s. 961.04, from seeking compensation under this
427 act.
428 (2) The prosecuting authority must respond to the petition
429 within 30 days. The prosecuting authority may respond:
430 (a) By certifying to the court that, based upon the
431 petition and verifiable and substantial evidence of actual
432 innocence, no further criminal proceedings in the case at bar
433 can or will be initiated by the prosecuting authority, that no
434 questions of fact remain as to the petitioner’s wrongful
435 incarceration, and that the petitioner is not ineligible from
436 seeking compensation under the provisions of s. 961.04; or
437 (b) By contesting the nature, significance, or effect of
438 the evidence of actual innocence, the facts related to the
439 petitioner’s alleged wrongful incarceration, or whether the
440 petitioner is ineligible from seeking compensation under the
441 provisions of s. 961.04.
442 (3) If the prosecuting authority responds as set forth in
443 paragraph (2)(a), the original sentencing court, based upon the
444 evidence of actual innocence, the prosecuting authority’s
445 certification, and upon the court’s finding that the petitioner
446 has presented clear and convincing evidence that the petitioner
447 committed neither the act nor the offense that served as the
448 basis for the conviction and incarceration, and that the
449 petitioner did not aid, abet, or act as an accomplice to a
450 person who committed the act or offense, shall certify to the
451 department that the petitioner is a wrongfully incarcerated
452 person as defined by this act. Based upon the prosecuting
453 authority’s certification, the court shall also certify to the
454 department that the petitioner is eligible for compensation
455 under the provisions of s. 961.04.
456 (4)(a) If the prosecuting authority responds as set forth
457 in paragraph (2)(b), the original sentencing court shall make a
458 determination from the pleadings and supporting documentation
459 whether, by a preponderance of the evidence, the petitioner is
460 ineligible for compensation under the provisions of s. 961.04,
461 regardless of his or her claim of wrongful incarceration. If the
462 court finds the petitioner ineligible under the provisions of s.
463 961.04, it shall dismiss the petition.
464 (b) If the prosecuting authority responds as set forth in
465 paragraph (2)(b), and the court determines that the petitioner
466 is eligible under the provisions of s. 961.04, but the
467 prosecuting authority contests the nature, significance or
468 effect of the evidence of actual innocence, or the facts related
469 to the petitioner’s alleged wrongful incarceration, the court
470 shall set forth its findings and transfer the petition by
471 electronic means through the division’s website to the division
472 for findings of fact and a recommended determination of whether
473 the petitioner has established that he or she is a wrongfully
474 incarcerated person who is eligible for compensation under this
475 act.
476 Section 9. This act shall take effect July 1, 2020.