SB244: SB244 Criminal Proceedings; the award of reasonable attorney's fees and costs in a criminal case to the defendant upon such defendant making a successful motion to disqualify the prosecuting attorney for misconduct in connection with the case; provide

25 LC 55 0633S Senate Bill 244 By: Senators Beach of the 21st, Albers of the 56th, Summers of the 13th, Robertson of the 29th, Tillery of the 19th and others AS PASSED A BILL TO BE ENTITLED AN ACT To amend Titles 17 and 28 of the Official Code of Georgia Annotated, relating to criminal1 procedure and General Assembly, respectively, so as to enact provisions relating to certain2 criminal prosecutions; to provide for the award of reasonable attorney's fees and costs in a3 criminal case to the defendant upon the disqualification of the prosecuting attorney for4 misconduct in connection with the case and the subsequent dismissal of the case by the court5 or a subsequent prosecutor; to provide for procedures for assessing and paying such fees and6 costs; to allow for wrongful conviction and incarceration compensation claims; to provide7 for a short title; to establish eligibility criteria; to provid e for notice of claims; to require8 administrative law judges within the Office of State Administra tive Hearings to hear and9 evaluate such claims; to provide for the burden of proof and evidence to be considered by an10 administrative law judge; to establish amounts of compensation that may be awarded; to11 require the release of claims prior to receiving an award of co mpensation; to establish the12 Wrongful Conviction and Incarceration Compensation Trust Fund; to provide for the13 payment of compensation awards from such trust fund; to provide for the waiver of sovereign14 immunity; to provide for rules and regulations; to require the Supreme Court of Georgia and15 the State Board of Pardons and Paroles to provide certain individuals with a copy of this Act;16 to provide for definitions; to exclude wrongful conviction and incarceration compensation17 claims from the purview of the Claims Advisory Board; to provid e for related matters; to18 S. B. 244 - 1 - 25 LC 55 0633S provide for effective dates; to provide for applicability; to r epeal conflicting laws; and for19 other purposes.20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:21 PART I22 SECTION 1-1.23 Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is24 amended in Chapter 11, relating to assessment and payment of costs of criminal proceedings,25 by adding a new Code section to read as follows:26 "17-11-6.27 (a) In the event that:28 (1) The prosecuting attorney in a felony or misdemeanor criminal case is disqualified due29 to improper conduct on the part of such prosecuting attorney; and30 (2) Such criminal case is dismissed by the court or a subsequent prosecutor tasked with31 prosecuting such case following such disqualification;32 any defendant against whom such charges are dismissed shall be entitled to an award of all33 reasonable attorney's fees and costs incurred by the defendant in defending the case.34 (b) A defendant entitled to fees and expenses as provided in this Code section shall file a35 motion for reasonable attorney's fees and costs within 45 days of the final termination of36 the underlying criminal case. The judge to whom the criminal c ase was assigned shall37 consider and determine such motion for reasonable attorney's fees and costs without a jury38 and shall award such reasonable attorney's fees and costs as provided for under this Code39 section to such defendant.40 S. B. 244 - 2 - 25 LC 55 0633S (c) Attorney's fees and costs awarded under this Code section shall be paid from the funds41 of the office of the prosecuting attorney as budgeted by the county or counties comprising42 the judicial circuit of such prosecuting attorney."43 PART II44 SECTION 2-1.45 Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is46 amended by adding a new chapter to read as follows:47 "CHAPTER 2248 17-22-1.49 This chapter shall be known and may be cited as the 'Wrongful C onviction and50 Incarceration Compensation Act.'51 17-22-2.52 As used in this chapter, the term:53 (1) 'Alford plea' means a plea of guilty entered by a defendant while maintaining his or54 her innocence, as recognized by the United States Supreme Court in the case of North55 Carolina v. Alford, 400 U.S. 25 (1970).56 (2) 'Claimant' means an individual seeking compensation under this chapter for his or her57 wrongful conviction and incarceration.58 (3) 'Prosecuting district attorney' means the district attorney whose office prosecuted the59 claimant for the crime or crimes that resulted in the wrongful conviction and60 incarceration for which the claimant is seeking compensation under the provisions of this61 chapter.62 S. B. 244 - 3 - 25 LC 55 0633S (4) 'State governmental entity' means any office, authority, a gency, department, unit,63 division, instrumentality, institution, commission, board, branch, or other entity of state64 government.65 17-22-3.66 (a) The Office of State Administrative Hearings, established p ursuant to Code Section67 50-13-40, shall have the sole and exclusive authority to consid er claims of wrongful68 conviction and incarceration in accordance with the provisions of this chapter.69 (b) For purposes of considering claims of wrongful conviction and incarceration and70 awarding compensation pursuant to this chapter, an administrati ve law judge appointed71 pursuant to Code Section 50-13-40 shall be designated by the Of fice of State72 Administrative Hearings for each claim filed under this chapter.73 (c) Any such administrative law judge shall be authorized to determine:74 (1) Whether a claimant qualifies for compensation under this chapter; and75 (2) The amount of compensation, if any, to be awarded under this chapter.76 17-22-4.77 (a) A claim for compensation under this chapter shall:78 (1) Be filed directly with the Office of State Administrative Hearings;79 (2) Except as provided in subsections (b) and (c) of this Code section, be filed within80 three years after the date of the acknowledgment obtained pursu ant to Code Section81 17-22-12, or within three years of July 1, 2025, whichever occurs later;82 (3) Be captioned 'In the Matter of the Wrongful Conviction of [Claimant];' and83 (4) Be served on the Attorney General and the prosecuting district attorney.84 (b) If, during the two years before the limitations period und er paragraph (2) of85 subsection (a) of this Code section would otherwise expire, the claimant obtains new86 evidence of innocence that the claimant could not previously have obtained with reasonable87 S. B. 244 - 4 - 25 LC 55 0633S diligence, the claimant may file a claim under this chapter within two years of the date on88 which the claimant obtains such new evidence.89 (c) If, after the limitations period under paragraph (2) of subsection (a) of this Code section90 has expired, the claimant obtains new evidence of innocence tha t the claimant could not91 previously have obtained with reasonable diligence, the claiman t may file a claim under92 this chapter within two years of the date on which the claimant obtains such new evidence.93 (d) A claim for compensation may be brought under this chapter by the heirs at law or the94 legal representative of a deceased individual.95 17-22-5.96 (a) To be eligible to receive compensation under this chapter, a claimant must establish by97 a preponderance of evidence to the administrative law judge that:98 (1) The claimant was convicted of a felony by a court of this state and served all or part99 of the sentence for such felony;100 (2) The claimant did not commit the crime for which the claimant was convicted and did101 not commit any lesser included offense; and102 (3) One of the following apply to the claimant:103 (A) The claimant's conviction was reversed or vacated and the charges against the104 claimant were dismissed after the conviction was reversed or vacated;105 (B) The claimant's conviction was reversed or vacated and the claimant was thereafter106 acquitted of the charges;107 (C) The claimant's conviction was reversed or vacated and the claimant thereafter108 entered an Alford plea or a plea of nolo contendere when the claimant would otherwise109 have been entitled to a new trial; or110 (D) The claimant received a pardon for the conviction based on the claimant's111 innocence.112 S. B. 244 - 5 - 25 LC 55 0633S (b) In evaluating whether a claimant has met the requirements of subsection (a) of this113 Code section, an administrative law judge may, in the interest of justice, give due114 consideration to difficulties of proof caused by the passage of time, the death or115 unavailability of witnesses, the destruction of evidence, and other factors not caused by the116 claimant or those acting on the claimant's behalf.117 (c) Upon determining that a claimant meets the requirements of subsection (a) of this Code118 section, an administrative law judge shall award compensation to the claimant for wrongful119 conviction and incarceration in accordance with the provisions of this chapter; provided,120 however, that no compensation shall be awarded if the administrative law judge determines121 by a preponderance of the evidence that:122 (1) The claimant was an accomplice in the commission of the cr ime for which the123 claimant was convicted; or124 (2) For the purpose of protecting the true perpetrator from co nviction, the claimant125 intentionally and voluntarily caused the conviction by entering a guilty plea, by126 committing perjury at trial, or by fabricating evidence at trial.127 17-22-6.128 (a) Upon receiving a claim under this chapter filed and served in accordance with Code129 Section 17-22-4, the Office of State Administrative Hearings sh all, within 15 days,130 designate an administrative law judge to adjudicate the claim and notify the claimant, the131 Attorney General, and the prosecuting district attorney of such designation.132 (b) Any such administrative law judge shall, within 180 days o f being designated to133 adjudicate the claim, hold a hearing to determine if the claima nt is eligible for134 compensation under this chapter, and if so, the amount of compe nsation to be awarded. 135 The Attorney General and the prosecuting district attorney shall be entitled to file, within136 30 days of such administrative law judge being designated to ad judicate the claim, a137 S. B. 244 - 6 - 25 LC 55 0633S response in opposition to the claim and appear at the hearing for the purpose of contesting138 the claim.139 (c) At a hearing held pursuant to subsection (b) of this Code section on a claim filed under140 this chapter, the claimant, the Attorney General, or the prosec uting district attorney may141 present evidence in support of or in opposition to the claimant's eligibility for compensation142 under this chapter or regarding the amount of compensation that the claimant is entitled to143 pursuant to Code Section 17-22-7. The rules of evidence establ ished in Code Section144 50-13-15 shall apply in any such hearing held.145 (d) Within 30 days of holding a hearing under subsection (b) o f this Code section, the146 administrative law judge shall issue a decision on the claimant 's eligibility for147 compensation under this chapter and the amount of compensation to be awarded under148 Code Section 17-22-7, if any, which shall include a statement o f the administrative law149 judge's findings and an explanation of the administrative law j udge's calculation of any150 such compensation to be awarded. Within 30 days after the administrative law judge has151 issued such decision, the claimant, the Attorney General, or th e prosecuting district152 attorney may appeal such decision by filing, in accordance with the provisions of Chapter153 3 of Title 5, a petition for review in the Superior Court of Fulton County or in the superior154 court of the county in which the claimant was prosecuted for the crime or crimes leading155 to the wrongful conviction and incarceration, provided that such appeal shall be without156 a jury, shall be confined to the record, and nothing in this chapter shall preclude the appeal157 of any decision or order issued by such superior court during or upon the completion of its158 review of the decision issued by the administrative law judge. If no such appeal of the159 administrative law judge's decision is timely filed, such decision shall become final and the160 administrative law judge shall, subject to the limitation provided in subsection (e) of this161 Code section, issue a judgment either awarding compensation to the claimant or denying162 the claim. If such an appeal of the administrative law judge's decision is filed, the163 administrative law judge shall only issue a judgment when such appeal process is164 S. B. 244 - 7 - 25 LC 55 0633S completed in accordance with any orders of the reviewing court. T h e i s s u a n c e o f a165 judgment after completion of such appeal process shall be subject to the limitation provided166 in subsection (e) of this Code section.167 (e) No claimant shall be entitled to compensation under this c hapter, and no judgment168 awarding compensation to a claimant under this chapter shall be issued by an169 administrative law judge under subsection (d) of this Code sect ion, unless and until the170 claimant has executed and filed with the Office of State Administrative Hearings a release171 and waiver, in a form and manner as the Office of State Adminis trative Hearings shall172 prescribe in consultation with the Department of Administrative Services, that releases,173 satisfies, acquits, and forever discharges any and all claims, demands, actions, causes of174 action, and damages, of every kind and nature whatsoever, past, present, or future, whether175 known or unknown, asserted or unasserted, that the claimant has or may claim to have176 against the state, any state governmental entity, or any current or former members, officers,177 employees, or agents of the state or any state governmental entity that arise out of or relate178 to any and all facts in connection with the claimant's wrongful conviction and179 incarceration. Nothing in this subsection shall be construed to require a claimant to release180 any claims, demands, actions, causes of action, or damages that the claimant may have or181 claim to have against any political subdivision of this state o r any current or former182 members, officers, employees, or agents of any political subdivision of this state.183 17-22-7.184 (a) A claimant that satisfies the requirements of and is entit led to compensation under185 Code Section 17-22-5 shall be awarded:186 (1) For each year of incarceration, $75,000.00, provided that a prorated amount shall be187 allocated to any partial year of incarceration;188 S. B. 244 - 8 - 25 LC 55 0633S (2) An additional $25,000.00 for each year of incarceration while awaiting a sentence of189 death based on the conviction at issue, provided that a prorated amount shall be allocated190 to any partial year of incarceration;191 (3) The reasonable and necessary attorney's fees, costs, and e xpenses incurred by the192 claimant or on the claimant's behalf in reversing or vacating t he claimant's conviction,193 obtaining a pardon, and filing a claim for compensation under this chapter; and194 (4) Reimbursement for restitution, costs, fines, fees, or surcharges paid by or on behalf195 of the claimant as a result of the wrongful conviction at issue.196 (b) In calculating time of incarceration, an administrative law judge shall only include time197 served for the charge for which the claimant is making a claim under this chapter,198 consistent with the requirements of Code Section 17-10-11; prov ided, however, that a199 claimant shall not be entitled to compensation under this chapt er for any portion of a200 sentence spent incarcerated during which the claimant was also serving a concurrent201 sentence of incarceration for another crime for which the claim ant's conviction was not202 overturned and for which the claimant was not pardoned based on innocence, except to the203 extent that:204 (1) The sentence for that crime was longer than it would have been without consideration205 by the sentencing court of one or more of the crimes at issue; or206 (2) The intact conviction was based on an Alford plea or a ple a of nolo contendere207 maintaining a claim of innocence that the claimant accepted to resolve the underlying208 case after the original conviction was overturned, and the clai mant proves by a209 preponderance of the evidence that the claimant did not commit the crime that resulted210 in the Alford plea or the plea of nolo contendere.211 (c) If a claimant has received a monetary award or settlement in a civil action against the212 state, any state governmental entity, or any member, officer, employee, or agent of the state213 or a state governmental agency arising from or relating to the claimant's wrongful214 conviction and incarceration, such amount received by the claim ant, less any attorney's215 S. B. 244 - 9 - 25 LC 55 0633S fees, costs, and expenses paid by the claimant in obtaining the civil action award or216 settlement, shall be deducted from the amount of the compensati on award to which the217 claimant is entitled under subsection (a) of this Code section.218 (d) Beginning on January 1, 2026, and each year thereafter, th e Office of State219 Administrative Hearings, by rules and regulations, shall adjust the dollar amounts specified220 in subsection (a) of this Code section to reflect the effect of annual inflation or deflation221 on the cost of living that citizens of this state experienced i n the prior calendar year. In222 making such adjustments, the Office of State Administrative Hea r i n g s m a y u s e t h e223 Consumer Price Index, or its successor or appropriate replacement index, if any, published224 by the Bureau of Labor Statistics of the United States Department of Labor.225 17-22-8.226 (a) Any award of compensation made pursuant to this chapter shall not be:227 (1) Subject to any monetary limitation of damages awarded in civil actions;228 (2) Subject to any state income taxes; or229 (3) Reduced by any expense related to the claimant's wrongful incarceration incurred by230 the state or any political subdivision thereof.231 (b) No attorney shall collect any fees, costs, or expenses fro m a claimant in connection232 with obtaining relief under this chapter, including any fees, costs, or expenses calculated233 on a contingency basis, except for the amounts awarded under paragraph (3) of subsection234 (a) of Code Section 17-22-7.235 17-22-9.236 (a) There is created the Wrongful Conviction and Incarceration Compensation Trust Fund237 as a separate fund in the state treasury. The state treasurer shall credit to the trust fund all238 moneys appropriated by the General Assembly for the purpose of providing claimants with239 compensation under this chapter and shall invest the moneys held in the trust fund in the240 S. B. 244 - 10 - 25 LC 55 0633S same manner in which state funds are invested as authorized by the State Depository Board241 pursuant to Article 3 of Chapter 17 of Title 50.242 (b) No award of compensation issued under this chapter shall be payable except from the243 Wrongful Conviction and Incarceration Compensation Trust Fund. Nothing in this chapter244 shall be construed to authorize any execution or levy against a ny state property or state245 funds, and such execution or levy against any state property or state funds for purposes of246 paying compensation awards issued under this chapter is expressly prohibited. The liability247 of the state under this chapter shall never exceed the amount o f funds available in the248 Wrongful Conviction and Incarceration Compensation Trust Fund a nd no award of249 compensation issued under this chapter shall be payable unless and until the General250 Assembly appropriates moneys for the payment thereof.251 (c) Subject to the availability of funds, any award of compens ation issued under this252 chapter shall be paid out of the Wrongful Conviction and Incarc eration Compensation 253 Trust Fund as follows:254 (1)(A) If the judgment awarding such compensation is issued by the administrative law255 judge pursuant to subsection (d) of Code Section 17-22-6 before September 1 of a given256 calendar year, the state treasurer shall pay to the claimant an initial sum of $6,000.00257 within 60 days of such judgment being issued and such judgment being presented to the258 state treasurer for payment, and such initial sum shall be deducted from the total award259 amount.260 (B) If the judgment awarding such compensation is issued by the administrative law261 judge pursuant to subsection (d) of Code Section 17-22-6 on or after September 1 of a262 given calendar year, the state treasurer shall pay to the claim ant an initial sum of263 $18,000.00 within 60 days of such judgment being issued and suc h judgment being264 presented to the state treasurer for payment, and such initial sum shall be deducted from265 the total award amount.266 S. B. 244 - 11 - 25 LC 55 0633S (2) Thereafter, the General Assembly shall, through an amended appropriations Act for267 the current fiscal year for a judgment issued before September 1 of a given calendar year268 or through the general appropriations Act for the next fiscal year for a judgment issued269 on or after September 1 of a given calendar year, appropriate a sum sufficient to pay the270 remainder of the award of co mpensation; provided, however, that , for any award of271 compensation that exceeds $1.5 million, the General Assembly sh all appropriate such272 sum in equal amounts over three separate fiscal years. Within 60 days of such273 appropriation being made and such funds being credited to the Wrongful Conviction and274 Incarceration Compensation Trust Fund, the state treasurer shall pay to the claimant the275 remainder of the award of compensation; provided, however, that, if such award exceeds276 $1.5 million, the state treasurer shall pay to the claimant the remainder of the award in277 three equal payments, each within 60 days of such amounts being appropriated by the278 General Assembly and credited to the Wrongful Conviction and In carceration279 Compensation Trust Fund.280 (d) Any payment of an award of compensation pursuant to subsec tion (c) of this Code281 section may be made to or for the benefit of the claimant, or, in the case of the death of the282 claimant, to or for the benefit of one or more heirs at law or designated beneficiaries of the283 claimant.284 17-22-10.285 Subject to the provisions and limitations of this chapter, the sovereign immunity of this286 state is waived for the purpose of authorizing claimants to fil e claims for and seek 287 compensation awards under this chapter and for authorizing paym ent of any judgment288 awarding such compensation from the Wrongful Conviction and Inc arceration289 Compensation Trust Fund.290 S. B. 244 - 12 - 25 LC 55 0633S 17-22-11.291 The Office of State Administrative Hearings, through the chief state administrative law292 judge, shall have the power to promulgate any rules and regulat ions and establish any293 procedures that are necessary to carry out, and are not inconsistent with, the provisions of294 this chapter.295 17-22-12.296 (a) A court entering a dismissal or judgment of acquittal afte r a defendant's criminal297 conviction has been overturned, vacated, or reversed shall provide a copy of this chapter298 to the defendant at the time of entry of the dismissal or acqui ttal and obtain from the299 defendant a written acknowledgment of receipt of a copy of this chapter on a form300 established by the Supreme Court of Georgia. Such acknowledgment shall be transmitted301 by the court to the Supreme Court of Georgia and shall be enter ed on the docket by the302 Supreme Court of Georgia. The acknowledgment shall be admissible in any proceeding303 subsequently filed by the defendant under this chapter.304 (b) Upon the issuance and acceptance of a pardon of innocence or a commutation of305 sentence resulting in release because of a finding of innocence, the State Board of Pardons306 and Paroles shall provide a copy of this chapter to the individual receiving the pardon or307 commutation and obtain from the individual a written acknowledgment of receipt of a copy308 of this chapter on a form established by the State Board of Par dons and Paroles. The309 acknowledgment shall be retained on file by the State Board of Pardons and Paroles as part310 of its official records and shall be admissible in any proceeding subsequently filed by the311 individual under this chapter."312 S. B. 244 - 13 - 25 LC 55 0633S SECTION 2-2.313 Title 28 of the Official Code of Georgia Annotated, relating to General Assembly, is314 amended in Part 2 of Article 4 of Chapter 5, relating to claims against state, departments, or315 agencies, by adding a new Code section to read as follows:316 "28-5-87.317 The Claims Advisory Board shall not consider and no compensatio n shall be paid under318 this article concerning any claim against the state for any wro ngful conviction and319 incarceration."320 PART III321 SECTION 3-1.322 (a) Except as provided in subsection (b) of this Section, this Act shall become effective on323 July 1, 2025.324 (b) Part I of this Act shall become effective upon its approval by the Governor or upon its325 becoming law without such approval and shall apply to all criminal cases pending on and326 after such effective date.327 SECTION 3-2.328 All laws and parts of laws in conflict with this Act are repealed.329 S. B. 244 - 14 -