HB 2766 — erroneous convictions; compensation; procedures

REFERENCEFifty-seventh TITLE:Legislature Judiciary Second Regular Session H.B.

erroneous2766 convictions;PROPOSED HOUSE OF REPRESENTATIVES AMENDMENTS TO H.B.

compensation;2766 (Reference to printed bill) Strike everything after the enacting clause and insert:

procedures"Section State1. of Arizona House of Representatives Fifty-seventh Legislature Second Regular Session HB 2766 Introduced by Representative Powell AN ACT AMENDING SECTIONS 13-4296 AND 41-710.03, ARIZONA REVISED STATUTES;

RELATING TO ERRONEOUS CONVICTIONS.

(TEXT OF BILL BEGINS ON NEXT PAGE) - i - HB 2766 Be it enacted by the Legislature of the State of Arizona:

Section 1.

Notwithstanding any other law, a claimant may bring an action in superior court seeking compensation from this state if the claimant establishes, by a preponderance of the CLEAR AND CONVINCING evidence, that all of the following apply:

(b) AFTERThe TRIAL, the claimant's judgment of conviction was reversed or vacated and the charges were dismissed or the claimant was found not guilty on retrial.

(c) The claimant's judgment of conviction was reversed or vacated and the claimant entered an Alford plea or a plea of no contest, while maintaining a claim of innocence, RESULTING IN THE CLAIMANT'S RELEASE FROM INCARCERATION after the conviction was overturned, reversed or vacated on direct appeal or postconviction review when the claimant would otherwise have been entitled to a new trial.

The claimant shall serve A COPY OF THE CLAIM ON the attorney general,general with a copy of the claimclaim. THE PROSECUTING AGENCY THAT CHARGED THE CRIMINAL CASE AND EACH LAW ENFORCEMENT AGENCY THAT WAS INVOLVED IN THE INVESTIGATION THAT LEAD TO THE CONVICTION SHALL COMPLY WITH THE REQUIREMENTS OF SECTION 12-821.01.

The claimant's conviction is overturned or vacated and the charges against the claimant are dismissed, the claimant is found not guiltyHouse onAmendments retrialto orH.B. the claimant enters a plea of no contest, whichever occurs later.

2766 guilty on retrial or the claimant enters a plea of PLED no contest, RESULTING IN THE CLAIMANT'S RELEASE FROM INCARCERATION, whichever occurs later.

- 1 - HB 2766 D.

The attorney general shall respond within thirty SIXTY days to the claim.

The parties may stipulate to an additional extension of time.time TAKING INTO CONSIDERATION THE AGE OF THE CASE AND THE COMPLEXITY OF THE FACTS AND LEGAL ISSUES RAISED.

CONSISTENTThe WITHattorney THEgeneral REQUIREMENTSmay OFinclude RULEin 16(a)the OFresponse THEa ARIZONArequest RULESthat OFthe CIVILcourt PROCEDUREmake ANDfindings AFTERof TAKINGfact INTOthat CONSIDERATIONa THEcity AGEor OFcounty THEemployee CASEcommitted ANDharmful THEerror COMPLEXITYor OFmisconduct. THE FACTS AND LEGAL ISSUES RAISED IN THE CLAIM, THE COURT SHALL ENTER A SCHEDULING ORDER THAT PROVIDES THE ATTORNEY GENERAL WITH AT LEAST SIXTY DAYS TO REVIEW, INVESTIGATE AND RESPOND TO THE CLAIM.

TheIf the attorney general mayrequests include in the response a request that the court make findings of fact thatregarding whether a city,city TOWN or county employee committed harmful error or misconductmisconduct, THATthe WASattorney THEgeneral PROXIMATEhas CAUSEthe OFburden THEof CONVICTIONproof BEINGby PARDONED,a REVERSEDpreponderance ORof VACATED.the evidence.

THE HARMFUL ERROR OR MISCONDUCT IS THE PROXIMATE CAUSE OF THE CONVICTION BEING PARDONED, REVERSED OR VACATED IF THE HARMFUL ERROR OR MISCONDUCT WOULD HAVE FORESEEABLY RESULTED IN THE CONVICTION BEING REVERSED OR VACATED OR HAVE BEEN GROUNDS TO GRANT A PARDON.

If the attorney general requests findings of fact regarding whether a city, TOWN or county employee committed harmful error or misconduct, the attorney general has the burden of proof by a preponderance of the evidence.

If the attorney general does not object in the response OR OTHERWISE SEEK DISMISSAL OF THE CLAIM, the court shall enter an order granting the erroneous conviction claimclaim. IF THE COURT FINDS THE CLAIMANT MET THE BURDEN PRESCRIBED IN SUBSECTION A OF THIS SECTION.

ON ITS OWN MOTION OR ON THE MOTION OF THE ATTORNEY GENERAL, THE COURT MAY DISMISS THE COMPLAINT IF THE COURT DETERMINES THAT THE CLAIMANT DOES NOT STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED.

If the attorney general objects, the court shall MAY order and hold an evidentiary hearing.

THE COURT MAY CONSIDER ANY RELEVANT EVIDENCE REGARDLESS OF WHETHER THE EVIDENCE WAS ADMISSIBLE IN OR EXCLUDED FROM THE CRIMINAL TRIAL IN WHICH THE CLAIMANT WAS CONVICTED.

If requested by the attorney general, the court shall make findings of fact regarding whether a city,city TOWN or county employee committed harmful error or misconduct that was the proximate cause of the pardoning, reversal or vacating of a conviction.

If not requested by the attorney general, the court, on its own motion, may find by a preponderance of the evidence that a city,city TOWN or county employee committed harmful error or misconduct that was the proximate cause of the pardoning, reversal or vacating of a conviction.

The court may consider any findings of fact developed on the record of the underlying criminal offense related to the convictionconviction. or actions by city, TOWN or county employees.

The court shall notify the appropriate city, TOWN or countyactions prosecutingby agencycity if the attorney general requests or the court makes a finding that a city, TOWN or county employeeemployees. committed harmful error or misconduct that was the proximate cause of the pardoning, reversal or vacating of the conviction and allow the city, TOWN or county to respond - 2 - HB 2766 within fourteen days IN A REASONABLE TIME.

The court shall notify the appropriate city or county prosecuting agency if the attorney general requests or the court makes a finding that a city or county employee committed harmful error or misconduct that was the proximate cause of the pardoning, reversal or vacating of the conviction and allow the city or county to respond within fourteen days.

THE-2- PROSECUTINGHouse AGENCYAmendments HASto THEH.B. RIGHT TO INTERVENE PURSUANT TO RULE 24(a) OF THE ARIZONA RULES OF CIVIL PROCEDURE.

THE2766 LIABILITYF. OF THE CITY, TOWN OR COUNTY IS SEVERAL ONLY AND IS NOT JOINT, AND THE COURT MUST DETERMINE THE CITY, TOWN OR COUNTY EMPLOYEE’S PERCENTAGE OF FAULT THAT PROXIMATELY CAUSED THE PARDONING, REVERSAL OR VACATING OF THE CONVICTION.

IFIf THEthe COURTcourt DETERMINESenters TWOan ORorder MOREgranting EMPLOYEES'the HARMFULclaim, ERRORthe ORcourt MISCONDUCTshall PROXIMATELYaward CAUSEDcompensation THEONLY PARDONING,FOR REVERSALTHE ORAMOUNTS VACATINGACTUALLY OFDUE THETO CONVICTION, THE COURTCLAIMANT MUSTFROM DETERMINETHIS THESTATE AMOUNTAND OFMAY THE AWARD TOINTEREST BEas REIMBURSEDfollows: BY EACH RESPECTIVE CITY, TOWN OR COUNTY BASED ON THE PERCENTAGE OF EACH EMPLOYEE'S FAULT.

F.

If the court enters an order granting the claim, the court shall award compensation ONLY FOR THE AMOUNTS ACTUALLY DUE TO THE CLAIMANT FROM THIS STATE OR A CITY, TOWN OR COUNTY AND MAY AWARD INTEREST as follows:

For each year the claimant was incarcerated, two hundred percent of the median household income in this state as it existed on the date the claimant was incarcerated and as determined by the United States department of housing and urban development and adjusted for inflation using the consumer price index for urban consumers.consumers THIS STATE'S MEDIAN HOUSEHOLD INCOME AS PUBLISHED IN THE AMERICAN COMMUNITY SURVEY OF THE UNITED STATES BUREAU FOR THE YEAR THE ORDER OF ELIGIBILITY IS ISSUED.

THE COURT MAY AWARD INTEREST ON THE AMOUNT AWARDED - 3 - HB 2766 PURSUANT TO THIS PARAGRAPH FROM THE TIME OF ENTRY UNTIL THE JUDGMENT IS PAID.

H.-3- House Amendments to H.B.

2766 H.

- 4 - HB 2766 K.

If sufficient monies are available, the department of administration shall remit-4- fromHouse theAmendments erroneous convictions fund the payment to theH.B. claimant within forty-five days.