23 LC 48 0912S
H. B. 364 (SUB)
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The House Committee on Judiciary Non-Civil offers the following substitute to HB 364:
A BILL TO BE ENTITLED
AN ACT
To amend Article 4 of Chapter 5 of Title 28 of the Official Code of Georgia Annotated,1
relating to the Claims Advisory Board, so as to create the Wrongful Conviction2
Compensation Review Panel; to provide for a short title; to provide for applicability; to3
provide for definitions; to provide for the composition of such panel; to provide for the4
burden of proof and evidence to be considered by such panel; to provide for evaluation of5
claims by such panel; to provide for notice of claims, forms, and hearings; to provide for6
such panel to make recommendations to such board; to provide for payments; to provide for7
related matters; to repeal conflicting laws; and for other purposes.8
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9
SECTION 1.10
Article 4 of Chapter 5 of Title 28 of the Official Code of Georgia Annotated, relating to the11
Claims Advisory Board, is amended in Part 1, relating to general provisions, by revising12
Code Section 28-5-60, relating to such board's creation, membership, and representation of13
members by deputies or other designated employees, as follows:14 23 LC 48 0912S
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"28-5-60.15
(a) As used in this article, the term:16
(1) 'Board' means the Claims Advisory Board created in subsection (b) of this Code17
section.18
(2) 'The state or any of its departments or agencies' means any department, agency,19
bureau, or commission of state government, excluding state authorities, and also20
excluding any county or municipal department, agency, bureau, commission, or authority.21
(b) There is created the Claims Advisory Board, hereinafter called the board, to be22
composed of the Secretary of State, who shall be the chairman chairperson, the23
commissioner of human services, the commissioner of corrections, and the commissioner24
of transportation. Whenever the board takes any official action authorized under the law25
or duly promulgated rules and regulations, three of the members shall constitute a quorum,26
; however, any of those individuals named above may be represented by a deputy or other27
designated employee; and any such action shall be valid if any two of the remaining three28
individuals members are present during such action. Any board member may be29
represented by a deputy or other designated employee, and such individual's actions shall30
have the same effect as a board member's actions.31
(b)(c) The Claims Advisory Board board is assigned to the Secretary of State for32
administrative purposes only as prescribed in Code Section 50-4-3."33
SECTION 2.34
Said article is further amended in said part by repealing Code Section 28-5-60.1, relating to35
"the state or any of its departments or agencies" defined, in its entirety.36
SECTION 3.37
Said article is further amended in Part 2, relating to claims against state or departments or38
agencies, by adding a new Code section to read as follows:39 23 LC 48 0912S
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"28-5-87.40
The provisions of this part shall not apply to a claim made pursuant to Part 4 of this article."41
SECTION 4.42
Said article is further amended by adding a new part to read as follows:43
"Part 444
28-5-110.45
This part shall be known and may be cited as the 'Wrongful Conviction Compensation Act.'46
28-5-111.47
(a) As used in this part, the term:48
(1) 'Exonerated' means an individual:49
(A) Had his or her judgment of conviction reversed or vacated, or was granted a new50
trial, and had the indictment or accusation dismissed or nolle prossed;51
(B) Had his or her judgment of conviction reversed or vacated, or was granted a new52
trial and, upon retrial, acquitted; or53
(C) Received a pardon based on innocence.54
(2) 'Panel' means the Wrongful Conviction Compensation Review Panel.55
(b) The board shall have the authority to consider claims of wrongful conviction and56
recommend compensation pursuant to this part to the Chief Justice of the Supreme Court57
of Georgia.58
(c)(1) For purposes of considering claims of wrongful conviction and making59
recommendations of compensation to the board pursuant to this part, there is created the60
Wrongful Conviction Compensation Review Panel, to be formed under the board.61 23 LC 48 0912S
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(2) The panel shall consist of five members, and each member shall serve for a term of62
three years; provided, however, that the two members first appointed under63
subparagraphs (A) and (B) of this paragraph shall be appointed for an initial term of one64
year and the two members first appointed under subparagraphs (C) and (D) of this65
paragraph shall be appointed for an initial term of two years; provided, however, that any66
member appointed to a partial initial term may serve two additional successive terms or67
until his or her successor has been appointed. Any member of the panel may serve two68
successive terms or until his or her successor has been appointed. The members of the69
panel shall be:70
(A) A judge, retired judge, or retired justice who presides over felony criminal matters71
in any state court of record, appointed by the Chief Justice of the Supreme Court of72
Georgia;73
(B) A current district attorney appointed by the Governor;74
(C) A criminal defense attorney appointed by the Governor;75
(D) An attorney, forensic science expert, or law professor, with expertise in wrongful76
convictions, appointed by the Speaker of the House of Representatives; and77
(E) An attorney, forensic science expert, or law professor, with expertise in wrongful78
convictions, appointed by the President of the Senate.79
(3) The members of the panel shall designate one of the members as the panel's80
chairperson.81
(4) The panel shall have the authority to promulgate rules and regulations to govern its82
consideration of claims brought before the panel and the recommendations by the panel83
to the board.84
28-5-112.85
(a) In order to be eligible for compensation under this part, a claimant shall establish by86
a preponderance of evidence to the panel that:87 23 LC 48 0912S
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(1) The claimant was convicted of one or more felonies and subsequently incarcerated;88
(2) The claimant proclaims his or her innocence;89
(3) The claimant did not commit or suborn perjury, fabricate evidence, or engage in90
conduct intended to bring about the conviction. A confession later found to be false, an91
admission of guilt later found to be false, or a guilty plea shall not constitute committing92
or suborning perjury, fabricating evidence, or engaging in conduct intended to bring93
about the conviction under this part; and94
(4) The claimant was exonerated of the crime for which the claim for compensation for95
wrongful conviction and incarceration is being made.96
(b) In order to receive compensation under this part, the claimant shall establish by a97
preponderance of evidence to the panel that:98
(1) The claimant received a pardon based on innocence for the conviction;99
(2) The claimant was exonerated based on grounds of innocence; or100
(3) The claimant did not commit the crime for which the claimant was convicted and did101
not commit any lesser included offenses.102
(c) The panel, in evaluating a claim brought under this part, may, in the interest of justice,103
give due consideration to difficulties of proof caused by the passage of time, the death or104
unavailability of witnesses, the destruction of evidence, and other factors not caused by the105
claimant or those acting on his or her behalf.106
(d) The panel is authorized to determine:107
(1) Whether a claimant qualified for compensation under this part; and108
(2) The recommended amount of compensation, if any, with any such amount to be109
included in the board's transmittal provided for in subsection (b) of Code110
Section 28-5-115.111 23 LC 48 0912S
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28-5-113.112
(a) No claim for payment of compensation under this part shall be considered by the panel113
unless a notice of claim has been filed with the board within three years after the date the114
claimant's eligibility has been established as set forth in paragraph (4) of subsection (a) of115
Code Section 28-5-112 or within three years of July 1, 2023, whichever occurs later.116
(b) The panel shall provide forms to be used in filing a notice of claim and shall make117
them available for such purpose. The forms shall specify what evidence the panel will118
require in order to process a claim pursuant to subsections (a) and (b) of Code119
Section 28-5-112. Such information shall include documentation supporting a claimant's120
eligibility for compensation and showing of innocence. If a claim does not contain all121
information requested in the form, the panel shall contact the claimant to request this122
information, in writing, within 30 days of discovering the information is missing, and123
provide the claimant 60 days to supplement his or her claim.124
(c) Once the panel is in receipt of all information requested under subsection (b) of this125
Code section, and if the panel determines the claimant is eligible under subsection (a) of126
Code Section 28-5-112 for consideration for compensation, the panel shall, within 90 days127
of receiving the notice of claim and requested information:128
(1) Conduct a hearing if it determines a hearing is necessary to make a recommendation129
under this part; or130
(2) Make a provisional judgment on the eligibility of the claimant and the recommended131
award and provide its provisional judgment to the claimant. Upon receiving notice of the132
panel's provisional judgment, the claimant shall have 14 days to request a hearing before133
the panel if the claimant wishes for further review of his or her claim. If the claimant134
requests a hearing under this paragraph, the panel shall conduct a hearing within 60 days.135
(d) In the event a hearing is to be held, the claimant, the district attorney for the circuit in136
which the conviction occurred, and the Attorney General shall be notified of the date, time,137
and place of the hearing and shall be entitled to present evidence at such hearing.138 23 LC 48 0912S
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(e) Proceedings before the panel shall be governed by rules established by the panel. A139
claimant may be represented by an attorney as he or she shall choose.140
28-5-114.141
(a) Upon determining a claimant meets the criteria of subsections (a) and (b) of Code142
Section 28-5-112, the panel shall recommend to the board that the claimant be awarded143
compensation for wrongful conviction and incarceration.144
(b) In recommending compensation pursuant to subsection (a) of this Code section, the145
panel:146
(1) May include $100,000.00 per year, but shall include no less than $50,000.00 per year,147
for each year of wrongful incarceration, provided that a prorated amount shall be148
allocated to any partial year served; and149
(2) May include the claimant's incurred reasonable attorney's fees and other expenses in150
connection with all associated criminal and habeas corpus proceedings, obtaining the151
claimant's discharge from confinement, and filing of a claim for compensation under this152
part.153
(c) In calculating time of incarceration, the panel shall only include time for the charge for154
which the claimant is making a claim under this part consistent with the requirements of155
Code Section 17-10-11; provided, however, that a claimant shall not be entitled to156
compensation under this part for any portion of a sentence spent incarcerated during which157
the claimant was also serving a concurrent sentence of incarceration for another crime to158
which this part does not apply.159
(d)(1) Any payment of compensation may be made to or for the benefit of the claimant;160
or in the case of the death of the claimant, to or for the benefit of one or more of the heirs161
at law of the claimant, or, if the claimant chooses, up to one other person who is not an162
heir at law as designated by the claimant.163
(2) Payment of compensation shall be made in the form of cash.164 23 LC 48 0912S
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(e) In recommending compensation pursuant to subsection (a) of this Code section, the165
panel shall strive for consistency between claimants.166
(f) The dollar amounts specified in this Code section shall be adjusted annually by an167
amount calculated by multiplying such dollar amounts (as adjusted for the preceding year)168
by the annual percentage change in the consumer price index, or its successor or169
appropriate replacement index, if any, published by the United States Department of Labor170
for the preceding calendar year, commencing on July 1, 2023.171
28-5-115.172
(a) Within six months, or within a year if a hearing was held, of receiving the claimant's173
notice of claim and all information requested under subsection (b) of Code174
Section 28-5-113, the panel shall prepare a written recommendation to the board including:175
(1) A statement of its findings as to whether the claimant has met the requirements of176
subsections (a) and (b) of Code Section 28-5-112;177
(2) A statement explaining the panel's calculation of compensable time; and178
(3) A statement detailing the amount and forms of compensation.179
(b) The board shall adopt the recommendation of the panel as its own and upon adopting180
the recommendation of the panel shall transmit the recommendation and the statement of181
the panel to the Chief Justice of the Supreme Court of Georgia within seven days of182
receiving it from the panel.183
(c) If the Chief Justice of the Supreme Court of Georgia receives the recommendation of184
the board on or before September 1, he or she shall include the compensation185
recommended by the board under this part in the amended budget for the Judicial Council186
of Georgia for the current fiscal year. If the Chief Justice of the Supreme Court of Georgia187
receives the recommendation of the board after September 1, he or she shall include the188
compensation recommended by the board under this part in the budget for the Judicial189
Council of Georgia for the next fiscal year.190 23 LC 48 0912S
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(d) Any award of compensation made pursuant to this part shall not be:191
(1) Subject to any monetary limitation of damages awarded in civil actions;192
(2) Subject to any state income taxes; provided, however, that the award of attorney's193
fees shall be subject to taxation; or194
(3) Offset by any expense incurred by this state or any political subdivision thereof195
related to the claimant's incarceration.196
(e) The General Assembly waives sovereign immunity of this state for the purpose of197
authorizing payment of claims against this state pursuant to the authority of this part.198
(f) No award of compensation pursuant to this part shall be disbursed to a claimant who199
had his or her judgment of conviction reversed or vacated, or was granted a new trial, and200
had the indictment or accusation dismissed or nolle prossed until the time period set forth201
in Code Section 17-3-3 has lapsed or the prosecutor has affirmatively declined further202
prosecution.203
28-5-116.204
(a) If, at the time a claim is made under this part to the panel, the claimant has won a205
monetary award against the state or any political subdivision thereof in the final judgment206
of a civil action related to the wrongful conviction or has entered into a settlement207
agreement with the state or any political subdivision thereof related to the wrongful208
conviction, the amount of the award in the action or the amount received in the settlement209
agreement, less any sums paid to attorneys for costs in litigating other civil action or210
obtaining the settlement agreement, shall be deducted from the sum of money to which the211
panel shall usually recommend under this part.212
(b) If, after the time a claim is made under this part to the panel, the claimant wins a213
monetary award against the state or any political subdivision thereof in the final judgment214
of a civil action related to the wrongful conviction, the court shall deduct from such215
monetary award an amount equal to the sum of money awarded under this part as216 23 LC 48 0912S
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compensation for wrongful conviction, less any sums paid to attorneys or for costs in217
litigating other civil action or obtaining the settlement agreement."218
SECTION 5.219
All laws and parts of laws in conflict with this Act are repealed.220