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| 55 | 66 | | An Act |
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| 58 | 69 | | |
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| 59 | 70 | | amending title 13, chapter 38, Arizona Revised Statutes, by adding article 35; relating to criminal convictions. |
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| 65 | 76 | | (TEXT OF BILL BEGINS ON NEXT PAGE) |
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| 69 | 80 | | Be it enacted by the Legislature of the State of Arizona: Section 1. Title 13, chapter 38, Arizona Revised Statutes, is amended by adding article 35, to read: ARTICLE 35. ERRONEOUS CONVICTIONS START_STATUTE13-4296. Erroneous convictions; compensation A. Notwithstanding any other law, a claimant may bring an action in superior court seeking compensation from this state for a felony conviction for which the claimant was incarcerated if one of the following applies: 1. The claimant was pardoned based on innocence. 2. The claimant's judgment of conviction was reversed or vacated and the charges were dismissed or the claimant was found not guilty on retrial. 3. The claimant's judgment of conviction was reversed or vacated and the claimant entered a plea of no contest, while maintaining a claim of innocence, 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. B. All pleadings shall be entitled "in the matter of the erroneous conviction of _____". The claimant shall serve the attorney general with a copy of the claim. The court shall decide the claim. The Arizona rules of civil procedure apply. The action shall be brought in the county of conviction or in Maricopa county. C. The claimant shall bring the claim within two years after one of the following occurs: 1. The claimant's conviction is overturned or vacated and the charges against the claimant are dismissed, the claimant is found not guilty on retrial or the claimant enters a plea of no contest, whichever occurs later. 2. The claimant is pardoned based on innocence. 3. The effective date of this section if the claimant was convicted, incarcerated and released from custody before the effective date of this section. D. The attorney general shall respond within thirty days to the claim. The attorney general may request a single thirty-day extension to respond on a showing of good cause. The parties may stipulate to an additional extension of time. E. The attorney general has the burden of proving by clear and convincing evidence that the claimant is not entitled to compensation because the claimant either: 1. Committed the offense for which the claimant was convicted. 2. Committed perjury, fabricated evidence or by the claimant's own conduct caused or brought about the conviction. A confession or admission later found to be false or a guilty plea does not constitute committing perjury, fabricating evidence or causing or bringing about the conviction. F. If the attorney general does not object in the response, the court shall enter an order granting the erroneous conviction claim. If the attorney general objects, the court shall order and hold an evidentiary hearing. A court order that grants or denies the claim shall include findings of fact and conclusions of law. G. If the court enters an order granting the claim, the court shall award compensation as follows: 1. 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. The amount for any partial year shall be prorated in order to compensate the claimant only for the portion of the year in which the claimant was incarcerated. 2. The claimant may request more than the amount of compensation awarded pursuant to paragraph 1 of this subsection. If the claimant requests additional compensation, the court must hold an evidentiary hearing. The court shall consider the pro per status of the claimant in determining whether additional compensation is warranted. The claimant may present the following evidence: (a) Whether the claimant was required to register pursuant to section 13-3821 and for what length of time the claimant complied with the registration requirements. (b) Expenses for reintegrative services and mental and physical health care costs that the claimant incurred for the time period between the claimant's release from custody and the entry of judgment. (c) Unreimbursed costs, fines, fees or surcharges that were imposed on the claimant as a result of the erroneous conviction and that were paid by or on behalf of the claimant. (d) Unreimbursed restitution that was paid by or on behalf of the claimant as a result of the erroneous conviction. (e) Any other damages the claimant may have suffered arising from or related to the claimant's arrest, prosecution, conviction and incarceration. 3. Reasonable attorney fees and costs of not more than $25,000 unless the court authorizes a greater reasonable total on a finding of good cause shown. H. Compensation awarded to the claimant pursuant to this section does not constitute gross income for the purposes of title 42 or 43. I. The court shall order that the award be paid in one lump sum to the claimant. J. In addition to the compensation awarded pursuant to subsection G of this section, the claimant is entitled to the following services from licensed or accredited state institutions, agencies or providers within this state: 1. Reimbursement for mental health treatment for up to fifty-two clinical hours at a maximum of $250 per hour within twelve months after the court's order awarding compensation. 2. Reimbursement for up to one hundred twenty credit hours at any postsecondary educational institution, vocational school or trade school. 3. Reimbursement for up to four financial planning or literacy classes or consultations within twelve months after the court's order awarding compensation. K. If, at the time the court enters a judgment pursuant to subsection G of this section, the claimant has won a monetary judgment against this state or any political subdivision of this state in a civil action related to the erroneous conviction or has entered into a settlement agreement with this state or any political subdivision of this state related to the erroneous conviction, the court shall deduct the amount awarded in the action or the amount received in the settlement agreement, less any sums paid to an attorney or for costs in litigating the other civil action or obtaining the settlement agreement, from the monies that the claimant is entitled to receive under this section. The court shall include in the judgment an award to this state of any amount that is deducted pursuant to this subsection. L. If subsection K of this section does not apply, any future damages that are awarded to the claimant resulting from an action by the claimant against any unit of government in this state by reason of the erroneous conviction shall be offset by the compensation award received under this section. M. The compensation award may not be offset by any expenses incurred by this state or any political subdivision of this state, including the following: 1. Any expenses that this state or a political subdivision of this state incurred to secure the claimant's custody or to feed, clothe or provide medical services for the claimant. 2. The value of any services or reduction in fees for service, or the value thereof to be provided to the claimant that may be awarded to the claimant pursuant to this section. N. If the court finds that the claimant is entitled to compensation, the court shall issue a finding that the claimant was erroneously convicted and, as a result, served a specific amount of time erroneously incarcerated. The clerk of the court shall send a certified copy of the order to the department of administration's risk management revolving fund for payment from the risk management revolving fund established pursuant to section 41-622. The department of administration shall remit from the risk management revolving fund the payment to the claimant within forty-five days. Any claims for reimbursement under subsection J of this section shall be submitted to the administration for approval and paid from the risk management revolving fund within fourteen days after receipt. O. Notwithstanding any other law, on entry of an erroneous conviction ruling, the court shall: 1. Order the associated convictions and arrests expunged from all applicable state and federal systems and the records sealed. The court shall enter the expungement order regardless of whether the claimant has a historical prior felony conviction. The expungement order shall state all of the following: (a) The claimant's current full name. (b) The claimant's full name at the time of arrest and conviction, if different than the claimant's current name. (c) The claimant's sex, race and date of birth. (d) The offense for which the claimant was arrested and convicted. (e) The dates of the claimant's arrest and conviction. (f) The identity of the arresting law enforcement agency and convicting court. (g) That the order expunges any record of the claimant's arrest, charge, conviction or adjudication and sentence. (h) That the claimant's civil rights, including the right to possess firearms, are restored, unless the claimant is otherwise not eligible for the restoration of civil rights on grounds other than the conviction at issue. (i) That the clerk of the court shall notify the department of public safety, the prosecuting agency and the arresting law enforcement agency, if applicable, of the expungement order. (j) That the clerk of the court shall seal all records relating to the expunged arrest, charge, conviction or adjudication and sentence and allow the records to be accessed only by the claimant or the claimant's attorney. 2. Direct the department of public safety to expunge and destroy any biological samples, including dna and fingerprint samples, received by the department pursuant to section 13-610. The clerk of the court shall send a certified copy of the order to the department of public safety, which shall implement the order and provide confirmation of the action to the court. This paragraph does not require the department of public safety to expunge and destroy samples or a profile record that is associated with the claimant and that relates to an unrelated offense. P. The department of public safety shall seal and separate the expunged record from the department's records and shall inform all appropriate state and federal law enforcement agencies of the expungement at no cost to the claimant. The state department of corrections shall seal and separate the expunged record from the department's records and may not make information related to the expunged conviction publicly available through any department database. Q. The arresting and prosecuting agencies shall clearly identify in each agency's files and electronic records that the claimant was erroneously convicted and that the arrest, charge, conviction or adjudication and sentence are expunged and may not make any records of the expunged arrest, charge, conviction or adjudication and sentence available as a public record to any person except to the claimant or the claimant's attorney. R. Pursuant to the expungement order, the claimant shall be treated as not having been arrested for or convicted of the expunged offense. The expunged arrest, charge, adjudication, conviction or sentence may not be used in a subsequent prosecution by a prosecuting agency or court for any purpose. The claimant may state that the claimant has never been arrested for, charged with, adjudicated delinquent for, convicted of or sentenced for the offense that is the subject of the expungement. S. The claimant may request that this action and erroneous conviction ruling be sealed. T. The court's decision to grant or deny an erroneous conviction claim is not res judicata on any other proceedings. U. If the court denies an erroneous conviction claim, the claimant may file a direct appeal pursuant to section 13-4033, subsection a, paragraph 3. V. If the court finds that the claimant is entitled to a judgment, a victim as defined in section 13-4401 is entitled to reimbursement for mental health treatment for up to fifty-two clinical hours within TWELVE months after the court's order awarding compensation at a maximum of $250 per hour pursuant to the victim compensation and assistance fund established by section 41-2407. The victim does not need to establish any other eligibility requirements to receive reimbursement for mental health services. END_STATUTE Sec. 2. Legislative findings The legislature finds that: 1. Innocent persons who have been erroneously convicted of crimes have been uniquely victimized, have distinct struggles reentering society, have difficulty achieving legal redress due to a variety of substantive and technical obstacles in the law and should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages. 2. Erroneously convicted persons suffer particular and substantial harm by being imprisoned for a crime they did not commit, including the loss of liberty, livelihood and financial opportunity, so the legislature intends that by enacting section 13-4296, Arizona Revised Statutes, as added by this act, persons who were erroneously convicted and unjustly robbed of their freedom should be able to receive monetary compensation and non-monetary services. 3. Erroneous convictions cause victims of crime unique harm, so the legislature intends to provide crime victims with mental health treatment services in recognition of the trauma crime victims undergo when the legal system fails them by erroneously convicting the wrong person. |
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| 70 | 81 | | |
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| 71 | 82 | | Be it enacted by the Legislature of the State of Arizona: |
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| 72 | 83 | | |
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| 73 | 84 | | Section 1. Title 13, chapter 38, Arizona Revised Statutes, is amended by adding article 35, to read: |
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| 74 | 85 | | |
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| 75 | 86 | | ARTICLE 35. ERRONEOUS CONVICTIONS |
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| 76 | 87 | | |
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| 77 | 88 | | START_STATUTE13-4296. Erroneous convictions; compensation |
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| 78 | 89 | | |
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| 79 | 90 | | A. Notwithstanding any other law, a claimant may bring an action in superior court seeking compensation from this state for a felony conviction for which the claimant was incarcerated if one of the following applies: |
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| 80 | 91 | | |
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| 81 | 92 | | 1. The claimant was pardoned based on innocence. |
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| 82 | 93 | | |
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| 83 | 94 | | 2. The claimant's judgment of conviction was reversed or vacated and the charges were dismissed or the claimant was found not guilty on retrial. |
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| 84 | 95 | | |
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| 85 | 96 | | 3. The claimant's judgment of conviction was reversed or vacated and the claimant entered a plea of no contest, while maintaining a claim of innocence, 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. |
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| 86 | 97 | | |
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| 87 | 98 | | B. All pleadings shall be entitled "in the matter of the erroneous conviction of _____". The claimant shall serve the attorney general with a copy of the claim. The court shall decide the claim. The Arizona rules of civil procedure apply. The action shall be brought in the county of conviction or in Maricopa county. |
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| 88 | 99 | | |
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| 89 | 100 | | C. The claimant shall bring the claim within two years after one of the following occurs: |
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| 90 | 101 | | |
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| 91 | 102 | | 1. The claimant's conviction is overturned or vacated and the charges against the claimant are dismissed, the claimant is found not guilty on retrial or the claimant enters a plea of no contest, whichever occurs later. |
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| 92 | 103 | | |
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| 93 | 104 | | 2. The claimant is pardoned based on innocence. |
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| 94 | 105 | | |
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| 95 | 106 | | 3. The effective date of this section if the claimant was convicted, incarcerated and released from custody before the effective date of this section. |
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| 96 | 107 | | |
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| 97 | 108 | | D. The attorney general shall respond within thirty days to the claim. The attorney general may request a single thirty-day extension to respond on a showing of good cause. The parties may stipulate to an additional extension of time. |
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| 98 | 109 | | |
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| 99 | 110 | | E. The attorney general has the burden of proving by clear and convincing evidence that the claimant is not entitled to compensation because the claimant either: |
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| 100 | 111 | | |
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| 101 | 112 | | 1. Committed the offense for which the claimant was convicted. |
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| 102 | 113 | | |
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| 103 | 114 | | 2. Committed perjury, fabricated evidence or by the claimant's own conduct caused or brought about the conviction. A confession or admission later found to be false or a guilty plea does not constitute committing perjury, fabricating evidence or causing or bringing about the conviction. |
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| 104 | 115 | | |
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| 105 | 116 | | F. If the attorney general does not object in the response, the court shall enter an order granting the erroneous conviction claim. If the attorney general objects, the court shall order and hold an evidentiary hearing. A court order that grants or denies the claim shall include findings of fact and conclusions of law. |
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| 106 | 117 | | |
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| 107 | 118 | | G. If the court enters an order granting the claim, the court shall award compensation as follows: |
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| 108 | 119 | | |
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| 109 | 120 | | 1. 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. The amount for any partial year shall be prorated in order to compensate the claimant only for the portion of the year in which the claimant was incarcerated. |
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| 110 | 121 | | |
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| 111 | 122 | | 2. The claimant may request more than the amount of compensation awarded pursuant to paragraph 1 of this subsection. If the claimant requests additional compensation, the court must hold an evidentiary hearing. The court shall consider the pro per status of the claimant in determining whether additional compensation is warranted. The claimant may present the following evidence: |
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| 112 | 123 | | |
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| 113 | 124 | | (a) Whether the claimant was required to register pursuant to section 13-3821 and for what length of time the claimant complied with the registration requirements. |
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| 114 | 125 | | |
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| 115 | 126 | | (b) Expenses for reintegrative services and mental and physical health care costs that the claimant incurred for the time period between the claimant's release from custody and the entry of judgment. |
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| 116 | 127 | | |
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| 117 | 128 | | (c) Unreimbursed costs, fines, fees or surcharges that were imposed on the claimant as a result of the erroneous conviction and that were paid by or on behalf of the claimant. |
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| 118 | 129 | | |
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| 119 | 130 | | (d) Unreimbursed restitution that was paid by or on behalf of the claimant as a result of the erroneous conviction. |
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| 120 | 131 | | |
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| 121 | 132 | | (e) Any other damages the claimant may have suffered arising from or related to the claimant's arrest, prosecution, conviction and incarceration. |
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| 122 | 133 | | |
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| 123 | 134 | | 3. Reasonable attorney fees and costs of not more than $25,000 unless the court authorizes a greater reasonable total on a finding of good cause shown. |
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| 124 | 135 | | |
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| 125 | 136 | | H. Compensation awarded to the claimant pursuant to this section does not constitute gross income for the purposes of title 42 or 43. |
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| 126 | 137 | | |
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| 127 | 138 | | I. The court shall order that the award be paid in one lump sum to the claimant. |
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| 128 | 139 | | |
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| 129 | 140 | | J. In addition to the compensation awarded pursuant to subsection G of this section, the claimant is entitled to the following services from licensed or accredited state institutions, agencies or providers within this state: |
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| 130 | 141 | | |
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| 131 | 142 | | 1. Reimbursement for mental health treatment for up to fifty-two clinical hours at a maximum of $250 per hour within twelve months after the court's order awarding compensation. |
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| 132 | 143 | | |
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| 133 | 144 | | 2. Reimbursement for up to one hundred twenty credit hours at any postsecondary educational institution, vocational school or trade school. |
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| 134 | 145 | | |
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| 135 | 146 | | 3. Reimbursement for up to four financial planning or literacy classes or consultations within twelve months after the court's order awarding compensation. |
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| 136 | 147 | | |
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| 137 | 148 | | K. If, at the time the court enters a judgment pursuant to subsection G of this section, the claimant has won a monetary judgment against this state or any political subdivision of this state in a civil action related to the erroneous conviction or has entered into a settlement agreement with this state or any political subdivision of this state related to the erroneous conviction, the court shall deduct the amount awarded in the action or the amount received in the settlement agreement, less any sums paid to an attorney or for costs in litigating the other civil action or obtaining the settlement agreement, from the monies that the claimant is entitled to receive under this section. The court shall include in the judgment an award to this state of any amount that is deducted pursuant to this subsection. |
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| 138 | 149 | | |
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| 139 | 150 | | L. If subsection K of this section does not apply, any future damages that are awarded to the claimant resulting from an action by the claimant against any unit of government in this state by reason of the erroneous conviction shall be offset by the compensation award received under this section. |
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| 140 | 151 | | |
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| 141 | 152 | | M. The compensation award may not be offset by any expenses incurred by this state or any political subdivision of this state, including the following: |
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| 142 | 153 | | |
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| 143 | 154 | | 1. Any expenses that this state or a political subdivision of this state incurred to secure the claimant's custody or to feed, clothe or provide medical services for the claimant. |
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| 144 | 155 | | |
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| 145 | 156 | | 2. The value of any services or reduction in fees for service, or the value thereof to be provided to the claimant that may be awarded to the claimant pursuant to this section. |
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| 146 | 157 | | |
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| 147 | 158 | | N. If the court finds that the claimant is entitled to compensation, the court shall issue a finding that the claimant was erroneously convicted and, as a result, served a specific amount of time erroneously incarcerated. The clerk of the court shall send a certified copy of the order to the department of administration's risk management revolving fund for payment from the risk management revolving fund established pursuant to section 41-622. The department of administration shall remit from the risk management revolving fund the payment to the claimant within forty-five days. Any claims for reimbursement under subsection J of this section shall be submitted to the administration for approval and paid from the risk management revolving fund within fourteen days after receipt. |
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| 148 | 159 | | |
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| 149 | 160 | | O. Notwithstanding any other law, on entry of an erroneous conviction ruling, the court shall: |
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| 150 | 161 | | |
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| 151 | 162 | | 1. Order the associated convictions and arrests expunged from all applicable state and federal systems and the records sealed. The court shall enter the expungement order regardless of whether the claimant has a historical prior felony conviction. The expungement order shall state all of the following: |
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| 152 | 163 | | |
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| 153 | 164 | | (a) The claimant's current full name. |
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| 154 | 165 | | |
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| 155 | 166 | | (b) The claimant's full name at the time of arrest and conviction, if different than the claimant's current name. |
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| 156 | 167 | | |
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| 157 | 168 | | (c) The claimant's sex, race and date of birth. |
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| 158 | 169 | | |
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| 159 | 170 | | (d) The offense for which the claimant was arrested and convicted. |
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| 160 | 171 | | |
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| 161 | 172 | | (e) The dates of the claimant's arrest and conviction. |
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| 162 | 173 | | |
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| 163 | 174 | | (f) The identity of the arresting law enforcement agency and convicting court. |
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| 164 | 175 | | |
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| 165 | 176 | | (g) That the order expunges any record of the claimant's arrest, charge, conviction or adjudication and sentence. |
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| 166 | 177 | | |
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| 167 | 178 | | (h) That the claimant's civil rights, including the right to possess firearms, are restored, unless the claimant is otherwise not eligible for the restoration of civil rights on grounds other than the conviction at issue. |
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| 168 | 179 | | |
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| 169 | 180 | | (i) That the clerk of the court shall notify the department of public safety, the prosecuting agency and the arresting law enforcement agency, if applicable, of the expungement order. |
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| 170 | 181 | | |
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| 171 | 182 | | (j) That the clerk of the court shall seal all records relating to the expunged arrest, charge, conviction or adjudication and sentence and allow the records to be accessed only by the claimant or the claimant's attorney. |
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| 172 | 183 | | |
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| 173 | 184 | | 2. Direct the department of public safety to expunge and destroy any biological samples, including dna and fingerprint samples, received by the department pursuant to section 13-610. The clerk of the court shall send a certified copy of the order to the department of public safety, which shall implement the order and provide confirmation of the action to the court. This paragraph does not require the department of public safety to expunge and destroy samples or a profile record that is associated with the claimant and that relates to an unrelated offense. |
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| 174 | 185 | | |
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| 175 | 186 | | P. The department of public safety shall seal and separate the expunged record from the department's records and shall inform all appropriate state and federal law enforcement agencies of the expungement at no cost to the claimant. The state department of corrections shall seal and separate the expunged record from the department's records and may not make information related to the expunged conviction publicly available through any department database. |
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| 176 | 187 | | |
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| 177 | 188 | | Q. The arresting and prosecuting agencies shall clearly identify in each agency's files and electronic records that the claimant was erroneously convicted and that the arrest, charge, conviction or adjudication and sentence are expunged and may not make any records of the expunged arrest, charge, conviction or adjudication and sentence available as a public record to any person except to the claimant or the claimant's attorney. |
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| 178 | 189 | | |
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| 179 | 190 | | R. Pursuant to the expungement order, the claimant shall be treated as not having been arrested for or convicted of the expunged offense. The expunged arrest, charge, adjudication, conviction or sentence may not be used in a subsequent prosecution by a prosecuting agency or court for any purpose. The claimant may state that the claimant has never been arrested for, charged with, adjudicated delinquent for, convicted of or sentenced for the offense that is the subject of the expungement. |
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| 180 | 191 | | |
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| 181 | 192 | | S. The claimant may request that this action and erroneous conviction ruling be sealed. |
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| 182 | 193 | | |
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| 183 | 194 | | T. The court's decision to grant or deny an erroneous conviction claim is not res judicata on any other proceedings. |
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| 184 | 195 | | |
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| 185 | 196 | | U. If the court denies an erroneous conviction claim, the claimant may file a direct appeal pursuant to section 13-4033, subsection a, paragraph 3. |
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| 186 | 197 | | |
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| 187 | 198 | | V. If the court finds that the claimant is entitled to a judgment, a victim as defined in section 13-4401 is entitled to reimbursement for mental health treatment for up to fifty-two clinical hours within TWELVE months after the court's order awarding compensation at a maximum of $250 per hour pursuant to the victim compensation and assistance fund established by section 41-2407. The victim does not need to establish any other eligibility requirements to receive reimbursement for mental health services. END_STATUTE |
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| 188 | 199 | | |
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| 189 | 200 | | Sec. 2. Legislative findings |
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| 190 | 201 | | |
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| 191 | 202 | | The legislature finds that: |
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| 192 | 203 | | |
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| 193 | 204 | | 1. Innocent persons who have been erroneously convicted of crimes have been uniquely victimized, have distinct struggles reentering society, have difficulty achieving legal redress due to a variety of substantive and technical obstacles in the law and should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages. |
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| 194 | 205 | | |
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| 195 | 206 | | 2. Erroneously convicted persons suffer particular and substantial harm by being imprisoned for a crime they did not commit, including the loss of liberty, livelihood and financial opportunity, so the legislature intends that by enacting section 13-4296, Arizona Revised Statutes, as added by this act, persons who were erroneously convicted and unjustly robbed of their freedom should be able to receive monetary compensation and non-monetary services. |
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| 196 | 207 | | |
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| 197 | 208 | | 3. Erroneous convictions cause victims of crime unique harm, so the legislature intends to provide crime victims with mental health treatment services in recognition of the trauma crime victims undergo when the legal system fails them by erroneously convicting the wrong person. |
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