Compensation for exoneration based on DNA.

2015
STATE OF WYOMING
15LSO-0176
Numbered
2.1

HOUSE BILL

NO.

HB0230

Compensation for exoneration based on DNA.

Sponsored by:
Representative(s) Pelkey, Baker, Clem and Lindholm and Senator(s) Esquibel, F.

A BILL

for

AN ACT relating to criminal procedure; authorizing compensation for persons exonerated based on DNA testing and found factually innocent; specifying conditions, requirements and limitations on authorized compensation; retaining governmental immunity as specified; conforming provisions; providing for stay of order of expungement as specified; providing an appropriation; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 7—12
‑
316 and 7
‑
12
‑
317 are created to read:

7
‑
12
‑
316
.

Compensation.

(a)

A movant is eligible for compensation as provided in this section if:

(
i
)

The court entered an order of actual innocence and exoneration pursuant to W.S. 7
‑
12
‑
310(c) or (d);

(ii)

The movant has served in whole or in part a sentence of imprisonment for the conviction for which the order of actual innocence and exoneration was entered;

(iii)

At the time of serving the sentence for which the actual innocence and exoneration order was entered, the movant was not serving and had not been ordered to serve a concurrent or consecutive sentence of imprisonment for a separate conviction; and

(iv)

The
court entered findings of fact and conclusions of law establishing factual innocence of the original and related offenses under W.S. 7
‑
12
‑
317.

(b)

Subject to the appropriation of funds by the legislature and other limitations of this section, a movant who meets the eligibility criteria in subsection (a) of this section shall be provided compensation in the amount of one hundred dollars ($100.00) per day while actually incarcerated not to exceed a total of five hundred thousand dollars ($500,000.00).

(c)

The office of attorney general shall administer the provision of compensation provided for in this section and may promulgate rules as it deems necessary to implement this section.

(d)

A movant who meets the eligibility criteria established in subsection (a) of this section may present an application not more than two (2) years from entry of the order of actual innocence and exoneration, regardless of whether the order of actual innocence and exoneration was entered before or after July 1, 2015, to the office of the attorney general
. If the attorney general determines the movant is eligible for compensation under this section and the amount of the compensation under subsection (b) of this section is equal to or less than fifty thousand
dollars ($50,000.00), payment to the movant shall be made in a lump sum. If the movant is determined eligible for compensation under subsection (b) of this section in excess of fifty thousand dollars ($50,000.00), the movant shall receive an initial payment of fifty thousand dollars ($50,000.00) and the remaining amount shall be provided by distributing funds appropriated for purposes of this section to the state treasurer to annuitize the remaining balance. The annuity shall provide equal payments to the movant of fifty thousand dollars ($50,000.00) annually until the balance has been paid.

The annuity shall provide that it shall not be sold, discounted, or used as securitization for loans or mortgages. The annuity may include a beneficiary designated by the movant. In the event the movant dies before the expiration of the two (2) year period for presenting an application, the movant's estate or person claiming to be the
distribute
e
of the movant’s property as established
by affidavit pursuant to W.S. 2
‑
1
‑
201 or district
court decree pursuant to W.S. 2
‑
1
‑
205 may present an application for the compensation which is authorized to be provided under subsection (b) of this section provided the application is presented within the time specified in this subsection. The estate or
distributee
shall not be eligible for compensation unless the estate or
distributee
complies with all provisions and requirements of this section which would have applied to the movant.

(e)

A movant may not receive compensation
under this section
if he has any action pending, has obtained a judgment or has settled an action or claim against a governmental entity or an employee of any governmental entity involving the conviction for which the order of actual innocence and exoneration was entered.

(f)

Compensation to a movant
under this section
may not be offset by any expenses incurred by a governmental entity, including expenses to secure custody of the movant and expenses to feed, clothe, house and provide medical care for the movant.

(g)

A movant who receives compensation
under this section
may not bring any action against any governmental entity or an employee of any governmental entity involving the conviction for which the order of actual innocence and exoneration was entered.

(h)

A movant shall not receive compensation
under this section
unless the movant signs a release and waiver on behalf of himself and his heirs, successors and assigns, forever releasing all governmental entities and their employees in the employees' official and individual capacity from all present and future claims involving the conviction for which the order of actual innocence and exoneration was entered.

The release shall provide that any payment to the movant does not constitute a waiver of sovereign immunity.

(j)

The provisions of the Wyoming Administrative Procedure Act are not applicable to the grant or denial of compensation under this section.

(k)

The payment of compensation under this section does not constitute a waiver of sovereign immunity.

(m)

A movant is not entitled to compensation unless sufficient
funds have been appropriated to the
office of the attorney general to provide compensation authorized under this section.

(n)

An interest in payment of compensation under this section is not subject to execution or attachment by trustee process or otherwise, in law or equity, or under any other process whatsoever.

7
‑
12
‑
317
.

Establishment of factual innocence.

(a)

If the court entered an order of actual innocen
ce and exoneration under W.S. 7
‑
12
‑
310, the movant shall be entitled to a hearing to determine whether the movant is factually innocent if the movant files a request for the hearing within sixty (60) days after entry of an order of actual innocence and exoneration. If a request for a factual innocence hearing is timely filed, the court shall conduct a review of all past criminal proceedings involving the movant’s original conviction and
any
new evidence relevant to the movant’s claim of factual innocence. If the court finds, by a preponderance of the evidence, that the movant is factually innocent of the original and related offenses, the court shall enter findings of fact and conclusions of law establishing the movant’s factual innocence of the original and related offenses. The court
shall enter a dispositi
ve order within one hundred
fifty (150) days after the motion for a factua
l innocence hearing is filed.

(b)

For purposes of this section, factual innocence of original and related offenses means the movant did not:

(
i
)

Engage in conduct for which the movant was convicted;

(ii)

Engage in conduct in connection with the original offense for which the movant was convicted which would constitute a lesser included offense or another felony arising out of the same conduct; or

(iii)

Engage in any conduct which would constitute aiding and abetting, attempt or conspiracy to commit the offense for which the movant was originally convicted or any lesser included offense thereof
.

Section 2
.

W.S.
1
‑
39
‑
104(
a), 1
‑
39
‑
120 by creating a new subsection (b),
7
‑
12
‑
303(a) by creating a new paragraph (iii) and by amending and
renumbering (iii) as (iv) and
7
‑
12
‑
310 by creating new subsections (e) and (f) are amended to read:

1
‑
39
‑
104
.

Granting immunity from tort liability; liability on contracts; exceptions.

(a)

A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1
‑
39
‑
105 through 1
‑
39
‑
112 and limited by W.S. 1
‑
39
‑
121. Any immunity in actions based on a contract entered into by a governmental entity is waived except to the extent provided by the contract if the contract was within the powers granted to the entity and was properly executed and except as provided in W.S.
1
‑
39
‑
120(b) and
1
‑
39
‑
121. The claims procedures of W.S. 1
‑
39
‑
113 apply to contractual claims against governmental entities.

1
‑
39
‑
120
.

Exclusions from waiver of immunity.

(b)

Notwithstanding the waiver of immunity for tort liability provided by W.S. 1
‑
39
‑
105 through 1
‑
39
‑
112 or the waiver of immunity in actions based on contract provided by
W.S. 1
‑
39
‑
104, a governmental entity and its public employees while acting within the scope of duties are immune from a civil action in tort, contract or otherwise alleging, in whole or in part, improper
denial of compensation provided for in W.S. 7
‑
12
‑
316.

7
‑
12
‑
303
.

New trial; motion for post
‑
conviction testing of DNA; motion contents; sufficiency of allegations, consent to DNA sample; definitions, compensation.

(a)

As used in this act:

(iii)

"Governmental entity" means a governmental entity as defined by W.S. 1
‑
39
‑
103;

(iii)
(iv)

"This act" means W.S. 7
‑
12
‑
302 through
7
‑
12
‑
315
7
‑
12
‑
317
.

7
‑
12
‑
310
.

Order following testing.

(e)

Subject to subsection (f) of this section, any order of
expungement
entered pursuant to this section shall be stayed until the later of the following:

(
i
)

If the movant has applie
d for compensation under W.S. 7
‑
12
‑
316, until a dispositiv
e order is entered under W.S. 7
‑
12
‑
317 and the time for appeal has expired or, if appealed, upon issuance of a final o
rder or mandate by the Wyoming supreme c
ourt; or

(ii)

The time for applyin
g for compensation under W.S. 7
‑
12
‑
316 has expired.

(f)

An order of

expungement
pursuant to this section shall not be subject to the provisions of subsection (e) of this section if the movant waives all eligibility to re
ceive compensation under W.S. 7
‑
12
‑
316. The waiver shall be filed with the court issuing the order of actual innocence and exoneration.

Section 3
.

There is appropriated five hundred thousand dollars ($500,000.00) from the general fund to an account within the auditor’s office to be used for p
ayments
made pursuant to W.S. 7
‑
12
‑
316. Funds within the account shall be expended as directed by the attorney general in accordanc
e with the provisions of W.S. 7
‑
12
‑
316. Notwithstanding any other provision of law, this appropriation shall not be transferred or expended for any other p
urpose. Notwithstanding W.S. 9
‑
2
‑
1008, 9
‑
2
‑
1012(
e) and 9
‑
4
‑
207, any unexpended, unobligated funds remaining from this appropriation shall not revert until further action of the legislature. This appropriation shall not be included in the auditor’s 2017
‑
2018 standard biennial budget request.

Section 4
.

This act is effective July 1, 2015.

(END)

1
HB0230