[§661B-3] Judgment and award.

721 words·~3 min read·/hi/661b-3

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)The petitioner shall have the burden to prove by a preponderance of the evidence:

(1)That the petitioner is eligible to seek compensation in accordance with the requirements set forth in section 661B-1;

(2)That the petitioner was convicted in a court of the State and subsequently imprisoned for one or more crimes, but the petitioner was actually innocent of the crimes at issue; and

(3)That the petitioner served time in prison for the crime or crimes, including time served prior to conviction, if any.

(b)The following shall be affirmative defenses, on which the State shall have the burden of proof by a preponderance of the evidence:

(1)The petitioner was serving a term of imprisonment for another crime, including crimes under the laws of the United States, concurrently with imprisonment for the crime or crimes for which petitioner was actually innocent; provided that if the petitioner served additional time in prison due to the conviction that is the basis of the petition, then the petitioner shall receive compensation for that portion of the time served in prison during which the petitioner was serving no other sentence;

(2)The petitioner committed perjury or fabricated evidence or induced another person to commit perjury or fabricate evidence to cause or bring about the conviction at issue;

(3)The petitioner fabricated evidence or committed or suborned perjury during any proceeding related to the crime for which the petitioner was convicted;

(4)The petitioner solicited the commission of the crime at issue or any crime factually related to the crime at issue;

(5)The petitioner conspired to commit the crime at issue or any crime factually related to the crime at issue;

(6)The petitioner attempted to commit the crime at issue or any crime factually related to the crime at issue;

(7)The petitioner assisted in the commission of the crime at issue or any crime factually related to the crime at issue; or

(8)The petitioner assisted any person to avoid apprehension, arrest, or conviction for the crime at issue or any crime factually related to the crime at issue.

If the State proves one or more of the affirmative defenses enumerated in this subsection, the petitioner shall receive no compensation except as provided in paragraph (1).

(c)If the court finds that the petitioner has proven a claim for wrongful conviction and imprisonment, the court shall award the petitioner $50,000 for each year of actual confinement, including time spent awaiting trial, served by the petitioner for the crime or crimes for which the petitioner was actually innocent; provided that:

(1)The petitioner shall not be compensated for the time imprisoned if the petitioner was concurrently imprisoned for a different conviction, even if the other conviction was related to the conviction that was vacated or reversed or for which the petitioner was pardoned because of actual innocence;

(2)The award shall be prorated for partial years of imprisonment; and

(3)If the court finds, by a preponderance of the evidence, extraordinary circumstances pertain to a conviction that is set aside or a pardon that is granted because of actual innocence, the court may award the petitioner a maximum of $100,000 in additional compensation.

(d)The court shall award reasonable attorneys' fees not to exceed $10,000 for fees incurred in preparing and prosecuting the claim for the prevailing petitioner. The attorney for the petitioner shall not charge, demand, receive, or collect fees for services rendered in excess of twenty-five per cent of any amount awarded by the circuit court.

(e)In an action under this chapter, court costs and fees as established by law may be allowed to the prevailing party.

(f)On all moneys awarded to the petitioner for claims instituted under this chapter, interest shall be computed at the rate of four per cent a year from the date of judgment up to, but not exceeding, thirty days after the date of approval of any appropriation act providing for payment of the judgment.

(g)A ny moneys awarded to the petitioner for claims instituted under this chapter, other than for attorneys' fees, shall not be subject to any tax by the State or any county, including any income or general excise tax, any law to the contrary notwithstanding. [L 2016, c 156, pt of §2]