Text: HF00271 Text: HF00273 Text: HF00200 - HF00299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. NEW SECTION. 663A.1 WRONGFUL IMPRISONMENT –
1 2 CAUSE OF ACTION.
1 3 1. As used in this section, a "wrongfully imprisoned
1 4 person" means an individual who meets all of the following
1 5 criteria:
1 6 a. The individual was charged, by indictment or
1 7 information, with the commission of a public offense
1 8 classified as an aggravated misdemeanor or felony.
1 9 b. The individual did not plead guilty to the public
1 10 offense charged, or to any lesser included offense, but was
1 11 convicted by the court or by a jury of an offense classified
1 12 as an aggravated misdemeanor or felony.
1 13 c. The individual was sentenced to incarceration for a
1 14 term of imprisonment not to exceed two years if the offense
1 15 was an aggravated misdemeanor or to an indeterminate term of
1 16 years under chapter 902 if the offense was a felony, as a
1 17 result of the conviction.
1 18 d. The individual's conviction was vacated or dismissed,
1 19 or was reversed, and no further proceedings can be or will be
1 20 held against the individual on any facts and circumstances
1 21 alleged in the proceedings which had resulted in the
1 22 conviction.
1 23 e. As part of the order vacating, dismissing, or reversing
1 24 the conviction and sentence, the court made either of the
1 25 following findings:
1 26 (1) That the offense for which the individual was
1 27 convicted and sentenced, including any lesser-included
1 28 offenses, was not committed by the individual.
1 29 (2) That the offense for which the individual was
1 30 convicted and sentenced was not committed by any person,
1 31 including the individual.
1 32 2. Upon receipt of an order vacating, dismissing, or
1 33 reversing a conviction and sentence which includes either of
1 34 the findings specified in subsection 1, paragraph "e", the
1 35 district court shall do all of the following:
2 1 a. Enter an order finding that the individual is a
2 2 wrongfully imprisoned person.
2 3 b. Orally inform the person and the person's attorney that
2 4 the person has a right to commence a civil action against the
2 5 state under chapter 669 on the basis of wrongful imprisonment.
2 6 c. Orally inform the person of the person's right to be
2 7 represented by counsel at public expense if the person is
2 8 indigent.
2 9 3. Within seven days of entry of the order finding that an
2 10 individual is a wrongfully imprisoned person, the clerk of
2 11 court shall forward a copy of the order, together with a copy
2 12 of this section, to the individual named in the order. The
2 13 clerk of court shall also forward a copy of the order to the
2 14 state appeal board. The state appeal board shall notify the
2 15 clerk of court if an action is filed. If an action is not
2 16 filed within six months after entry of the order, the clerk of
2 17 court shall send a notice reminding the individual of the
2 18 right to commence an action against the state and to be
2 19 represented by counsel at public expense. The clerk of court
2 20 shall send additional notices at least once every three months
2 21 after the first notice, if the individual fails to commence an
2 22 action as provided under this section or fails to request that
2 23 no further notice be given.
2 24 4. A claim for wrongful imprisonment under this section is
2 25 a "claim" for purposes of chapter 669, notwithstanding
2 26 anything in section 669.14 to the contrary. Notwithstanding
2 27 section 669.8, however, an action brought under this section
2 28 shall not preclude or otherwise limit any action or claim for
2 29 relief based on any negligent or wrongful acts or omissions
2 30 which arose during the period of the wrongful imprisonment,
2 31 but which are not related to the facts and circumstances
2 32 underlying the conviction or proceedings to obtain relief from
2 33 the conviction.
2 34 5. Damages recoverable from the state by a wrongfully
2 35 imprisoned person under this section include any of the
3 1 following:
3 2 a. The amount of restitution for any fine, surcharge,
3 3 other penalty, or court costs imposed and paid and any
3 4 reasonable attorney's fees and expenses incurred in connection
3 5 with all criminal proceedings and appeals regarding the
3 6 wrongfully imposed judgment and sentence and such fees and
3 7 expenses incurred in connection with any civil actions and
3 8 proceedings for postconviction relief which are related to the
3 9 wrongfully imposed judgment and sentence.
3 10 b. For each full year of imprisonment, the amount of
3 11 twenty-five thousand dollars. For each remaining part or
3 12 parts of a year of imprisonment, an amount which is
3 13 represented by the proportion represented by the number of
3 14 days served divided by three hundred and sixty-five.
3 15 c. The value of any lost wages, salary, or other earned
3 16 income which directly resulted from the individual's arrest,
3 17 prosecution, conviction, and imprisonment.
3 18 d. The value of reasonable attorney's fees for services
3 19 provided in connection with an action under this section.
3 20 6. In awarding damages under this section, the state
3 21 appeal board or the court shall not offset the award by any
3 22 expenses incurred by the state or any political subdivision of
3 23 the state in connection with the arrest, prosecution, and
3 24 imprisonment of the individual, including, but not limited to,
3 25 expenses for food, clothing, shelter, and medical care.
3 26 7. Actions under this section shall be commenced within
3 27 two years of entry of the district court order adjudging the
3 28 individual to be a wrongfully imprisoned person.
3 29 EXPLANATION
3 30 This bill permits a person who has been found to have been
3 31 wrongfully imprisoned to file a claim for damages against the
3 32 state under the state tort claims act. A wrongfully
3 33 imprisoned person is a person who was charged with, convicted
3 34 of, and sentenced to serve a term of incarceration for an
3 35 aggravated misdemeanor or felony and whose conviction was
4 1 vacated, dismissed, or reversed either because the offense was
4 2 committed by another person or the offense was a fabrication.
4 3 Under the new provision, upon receipt of an order reversing,
4 4 vacating, or dismissing a conviction in which there is a
4 5 finding that the offense was committed by another person or is
4 6 a fabrication, the district court is to enter an order finding
4 7 that the person is a wrongfully imprisoned person, orally
4 8 inform the person and that person's attorney that they have a
4 9 right to commence an action under the state tort claims act,
4 10 and orally inform the person of the person's right to be
4 11 represented by counsel at public expense if the person is
4 12 indigent.
4 13 Once the order is entered by the court, the clerk is to
4 14 forward a copy of the order to the person who was wrongfully
4 15 imprisoned and the state appeal board. The person must file a
4 16 claim within two years of entry of the order. The state
4 17 appeal board is to notify the clerk if the person files an
4 18 action. If an action is not filed within six months of entry
4 19 of the order, the clerk is to send a reminder notice and
4 20 additional notices every three months, if the person either
4 21 does not file an action or fails to request that no further
4 22 notice be given.
4 23 The damages recoverable by a person for wrongful
4 24 imprisonment include the amount of any restitution imposed and
4 25 paid for any fines, penalties, surcharges, court costs, as
4 26 well as any reasonable attorney's fees and expenses incurred
4 27 in connection with the proceedings surrounding the conviction
4 28 and any appeals or collateral postconviction actions. Damages
4 29 recoverable also include $25,000 for each full year of
4 30 imprisonment and the proportional equivalent of the amount for
4 31 each portion of a year served; the value of any lost wages,
4 32 salary, or other earned income which directly resulted from
4 33 the arrest, prosecution, conviction, and imprisonment; and the
4 34 value of reasonable attorney's fees for services provided in
4 35 connection with bringing an action to recover damages for
5 1 wrongful imprisonment. In awarding damages, the state appeal
5 2 board may not offset any expenses incurred by the state or
5 3 political subdivision in connection with the arrest,
5 4 prosecution, and imprisonment of the individual. Claims for
5 5 damages brought under the new provision do not preclude or
5 6 limit claims for relief based on negligent or wrongful actions
5 7 or omissions which arose during the period of wrongful
5 8 imprisonment, but which are not related to the facts or
5 9 circumstances underlying the conviction.
5 10 LSB 1101HH 77
5 11 lh/cf/24.1
Text: HF00271 Text: HF00273 Text: HF00200 - HF00299 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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