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Sub. S. B. No. 149As Reported by the House Civil and Commercial Law CommitteeAs Reported by the House Civil and Commercial Law Committee
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Coughlin, Brady, Mallory, Oelslager, Prentiss, Roberts, Goodman, Hagan, Ryan
REPRESENTATIVES Willamowski, Seitz, Grendell, Mason
A BILL
To amend section 2743.48 and to enact sections 117.52
and 2743.49 of the Revised Code to
increase the
amount that a wrongfully imprisoned
individual, in
an action brought in the Court of
Claims, is
entitled to for each year of
imprisonment, to
provide for cost of living adjustments of that
amount by the Auditor of State, and to allow the
wrongfully imprisoned individual to recover any
cost debts the wrongfully imprisoned individual
paid the Department of Rehabilitation and
Correction while in its custody or under its
supervision.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2743.48 be amended and sections
117.52 and 2743.49 of the Revised Code be
enacted to read as
follows:
Sec. 117.52. The auditor of state shall make the adjustment,
as described in section 2743.49 of the Revised Code, of the amount
that a wrongfully imprisoned individual, in an action brought in
the court of claims pursuant to section 2743.48 of the Revised
Code, may receive for each full year or part of a year of
imprisonment and shall perform all of the functions relating to
that adjustment as specified in section 2743.49 of the Revised
Code.
Sec. 2743.48. (A) As used in this section
and section
2743.49 of the Revised Code, a "wrongfully
imprisoned individual"
means an individual who satisfies each of
the following: (1)
He
The individual was charged with a violation of a
section
of the
Revised Code by an indictment or information prior
to, or on or
after, September 24, 1986, and the violation charged
was an
aggravated felony or felony. (2)
He
The individual was found guilty of, but did not plead
guilty to,
the particular charge or a lesser-included offense by
the court
or jury involved, and the offense of which
he
the
individual was
found guilty
was an aggravated felony or felony. (3)
He
The individual was sentenced to an indefinite or
definite term of
imprisonment in a state correctional institution
for the
offense of which
he
the individual was found guilty. (4) The individual's conviction was vacated or was
dismissed, or reversed on appeal, the prosecuting attorney in the
case cannot or will not seek any further appeal of right or upon
leave of court, and no criminal proceeding is pending, can be
brought, or will be brought by any prosecuting attorney, city
director of law, village solicitor, or other chief legal officer
of a municipal corporation against the individual for any act
associated with that conviction. (5) Subsequent to
his sentencing and during or subsequent
to
his imprisonment,
an error in procedure resulted in the
individual's release, or it was determined by a court of common
pleas
that the offense of which
he
the individual was found
guilty,
including all
lesser-included offenses, either was not
committed
by
him
the
individual or was
not committed by any
person. (B)(1) When a court of common pleas determines, on or
after
September 24, 1986, that a person is a wrongfully
imprisoned
individual, the court shall provide the person with a
copy of this
section and orally inform
him
the person and
his
the person's
attorney of
his
the person's rights under this section to commence
a civil
action against
the state in the court of claims because of
his
the person's
wrongful
imprisonment and to be represented in
that civil action by
counsel of
his
the person's own choice. (2) The court described in division (B)(1) of this section
shall notify the clerk of the court of claims, in writing and
within seven days after the date of the entry of its
determination
that the person is a wrongfully imprisoned
individual, of the name
and proposed mailing address of the
person and of the fact that
the person has the rights to commence
a civil action and to have
legal representation as provided in
this section. The clerk of
the court of claims shall maintain in
his
the clerk's office a
list of wrongfully imprisoned
individuals for whom
notices are
received under this section and shall create files in
his
the
clerk's office for each such individual. (C)(1) In a civil action under this section, a wrongfully
imprisoned individual has the right to have counsel of
his
the
individual's own
choice. (2) If a wrongfully imprisoned individual who is the
subject
of a court determination as described in division (B)(1)
of this
section does not commence a civil action under this
section within
six months after the entry of that determination,
the clerk of the
court of claims shall send a letter to
him
the
wrongfully
imprisoned individual, at
the address set forth in the notice
received from the court of
common pleas pursuant to division
(B)(2) of this section or to
any later address provided by the
wrongfully imprisoned
individual, that reminds
him
the wrongfully
imprisoned
individual of
his
the wrongfully imprisoned
individual's
rights under this section.
Until the statute of
limitations provided in division (H) of this
section expires and
unless the wrongfully imprisoned individual
commences a civil
action under this section, the clerk of the
court of claims shall
send a similar letter in a similar manner
to
him
the wrongfully
imprisoned individual at least once each
three months after the
sending of the
first reminder. (D) Notwithstanding any provisions of this chapter to the
contrary, a wrongfully imprisoned individual has and may file a
civil action against the state, in the court of claims, to
recover
a sum of money as described in this section, because of
his
the
individual's wrongful imprisonment. The court of claims
shall
have
exclusive, original jurisdiction over such a civil action.
The
civil action shall proceed, be heard, and be determined as
provided in sections 2743.01 to 2743.20 of the Revised Code,
except that if a provision of this section conflicts with a
provision in any of those sections, the provision in this section
controls. (E)(1) In a civil action as described in division (D) of
this section, the complainant may establish that
he
the claimant
is a
wrongfully imprisoned individual by submitting to the court
of
claims a certified copy of the judgment entry of the court of
common pleas associated with
his
the claimant's conviction and
sentencing, and a
certified copy of the entry of the determination
of a court of
common pleas that
he
the claimant is a wrongfully
imprisoned
individual. No
other evidence shall be required of the
complainant to establish
that
he
the claimant is a wrongfully
imprisoned individual, and
he
the claimant shall be
irrebuttably
presumed to be a wrongfully imprisoned individual. (2) In a civil action as described in division (D) of this
section, upon presentation of requisite proof to the court, a
wrongfully imprisoned individual is entitled to receive a sum of
money that equals the total of each of the following amounts: (a) The amount of any fine or court costs imposed and
paid,
and the reasonable attorney's fees and other expenses
incurred by
the wrongfully imprisoned individual in connection
with all
associated criminal proceedings and appeals, and, if
applicable,
in connection with obtaining
his
the wrongfully
imprisoned
individual's discharge from
confinement in the state
penal or
reformatory
correctional institution; (b) For each full year
that he was imprisoned
of
imprisonment
in the state
correctional institution for the offense
of which
he
the wrongfully
imprisoned individual was
found guilty,
twenty-five
forty thousand
three hundred thirty dollars
or the
adjusted amount determined by the auditor of state pursuant to
section 2743.49 of the Revised Code, and for
each part of
a year
that he was
of being so imprisoned, a
pro-rated share of
twenty-five
forty thousand
three hundred thirty
dollars
or the
adjusted amount determined by the auditor of state pursuant to
section 2743.49 of the Revised Code; (c) Any loss of wages, salary, or other earned income that
directly resulted from
his
the wrongfully imprisoned individual's
arrest, prosecution, conviction, and
wrongful imprisonment; (d) The amount of the following cost debts the department of
rehabilitation and correction recovered from the wrongfully
imprisoned individual who was in custody of the department or
under the
department's supervision: (i) Any user fee or copayment for services at a detention
facility, including, but not limited to, a fee or copayment for
sick call visits; (ii) The cost of housing and feeding the wrongfully
imprisoned individual in a detention facility; (iii) The cost of supervision of the wrongfully imprisoned
individual; (iv) The cost of any ancillary services provided to the
wrongfully imprisoned individual. (F)(1) If the court of claims determines in a civil action
as described in division (D) of this section that the complainant
is a wrongfully imprisoned individual, it shall enter judgment
for
the wrongfully imprisoned individual in the amount of the sum
of
money to which
he
the wrongfully imprisoned individual is
entitled
under division (E)(2) of this
section. In determining that sum,
the court of claims shall not
take into consideration any expenses
incurred by the state or any
of its political subdivisions in
connection with the arrest,
prosecution, and imprisonment of the
wrongfully imprisoned
individual, including, but not limited to,
expenses for food,
clothing, shelter, and medical services. (2) If the wrongfully imprisoned individual was
represented
in the civil action under this section by counsel of
his
the
wrongfully imprisoned individual's own choice, the court
of claims
shall include in the judgment
entry referred to in division (F)(1)
of this section an award for
the reasonable attorney's fees of
that counsel. These fees shall
be paid as provided in division
(G) of this section. (3) The state consents to be sued by a wrongfully
imprisoned
individual because
his
the imprisonment was wrongful,
and
to
liability on its part because of that fact, only as provided
in
this section. However, this section does not affect any
liability
of the state or of its employees to a wrongfully
imprisoned
individual on a claim for relief that is not based on
the fact of
his
the wrongful imprisonment, including, but not
limited
to, a
claim for relief that arises out of circumstances occurring
during
his
the wrongfully imprisoned individual's confinement in
the
state correctional institution. (G) The clerk of the court of claims shall forward a
certified copy of a judgment under division (F) of this section
to
the president of the controlling board. The board shall take
all
actions necessary to cause the payment of the judgment out of
the
emergency purposes special purpose account of the board. (H) To be eligible to recover a sum of money as described
in
this section because of
his wrongful imprisonment, a
wrongfully
imprisoned individual shall not have been, prior to
September 24,
1986, the subject of an act of the general assembly
that
authorized an award of compensation for
his
the wrongful
imprisonment or have been the subject of an action before the
former sundry claims board that resulted in an award of
compensation for
his
the wrongful imprisonment. Additionally,
to
be
eligible to so recover, the wrongfully imprisoned individual
shall commence a civil action under this section in the court of
claims no later than two years after the date of the entry of the
determination of a court of common pleas that
he
the individual
is
a wrongfully
imprisoned individual.
Sec. 2743.49. (A)(1) In January of each odd-numbered year,
the auditor of state, in accordance with this division and
division (A)(2) of this section, shall adjust the actual dollar
figure specified in division (E)(2)(b) of section 2743.48 of the
Revised Code or the actual dollar amount determined pursuant to
this section. The adjustment shall be based on the yearly average
of the previous two years of the consumer price index for all
urban consumers or its successive equivalent, as determined by the
United States department of labor, bureau of labor statistics, or
its successor in responsibility, for all items, Series A. Using
the yearly average for the immediately preceding even-numbered
year as the base year, the auditor of state shall compare the most
current average consumer price index with that determined in the
preceding odd-numbered year and shall determine the percentage
increase or decrease. The auditor of state shall multiply the
percentage increase or decrease by the actual dollar figure
specified in division (E)(2)(b) of section 2743.48 of the Revised
Code or the actual dollar figure determined for the previous
odd-numbered year under this section and shall add the product to
or subtract the product from its corresponding actual dollar
figure, as applicable, for the previous odd-numbered year. (2) The auditor of state shall calculate the adjustment
under division (A)(1) of this section on or before the
thirty-first day of January of each odd-numbered year. The auditor
of state shall base the adjustment on the most current consumer
price index that is described in division (A)(1) of this section
and that is in effect as of the first day of January of each
odd-numbered year.
(B)(1) The auditor of state shall certify the calculations
made under division (A) of this section on or before the
thirty-first day of January of each odd-numbered year. (2) On or before the fifteenth day of February of each
odd-numbered year, the auditor of state shall prepare a report
setting forth the amount that a wrongfully imprisoned individual
is entitled to for each full year of imprisonment in the state
correctional institution for the offense of which the wrongfully
imprisoned individual was found guilty as provided in division
(E)(2)(b) of section 2743.49 of the Revised Code and as calculated
in accordance with this section. The report and all documents
relating to the calculations contained in the report are public
records. The report shall contain an indication of the period in
which the calculated amount applies, a summary of how the amount
was calculated, and a statement that the report and all related
documents are available for inspection and copying at the office
of the auditor of state. (3) On or before the fifteenth day of February of each
odd-numbered year, the auditor of state shall transmit the report
to the general assembly and to the court of claims.
Section 2. That existing section 2743.48 of the Revised Code
is hereby repealed.
Section 3. Sections 117.52, 2743.48, and 2743.49 of the
Revised Code, as amended or enacted by
this act, apply to civil
actions for wrongful imprisonment in
the Court of Claims commenced
on or after the effective date of
this act, or commenced prior to
and pending on the effective date
of this act.
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