§14-2-13a. Claims for unjust arrest and imprisonment or conviction and imprisonment.

(a) The Legislature finds and declares that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned and innocent persons wrongly arrested, charged with a crime or imprisoned, who have subsequently been released when another person was arrested, prosecuted and convicted of the same criminal offense have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that such persons should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages. The Legislature intends by enactment of the provisions of this section that those innocent persons who can demonstrate by clear and convincing evidence that they were unjustly arrested and imprisoned or unjustly convicted and imprisoned be able to recover damages against the state. In light of the substantial burden of proof that must be carried by such persons, it is the intent of the Legislature that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this section, shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf.

(b) Any person arrested or imprisoned or convicted and subsequently imprisoned for one or more felonies or misdemeanors against the state which he did not commit may, under the conditions hereinafter provided, present a claim for damages against the state.

(c) In order to present the claim for unjust arrest or imprisonment, claimant must establish by documentary evidence that he has been arrested and imprisoned, or both arrested and imprisoned and charged by warrant, information or indictment for one or more felonies against the state and that subsequently another person was arrested or prosecuted and convicted for the same criminal offense or offenses and all charges against the claimant were dismissed.

(d) In order to present the claim for unjust arrest, imprisonment or conviction and imprisonment, claimant must establish by documentary evidence that (1) he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and (2) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (3) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; or (4) the statue, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of West Virginia; and (5) his claim is not time barred by the provisions of subdivision (h) of this section.

(e) The claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (1) in the case of an unjust arrest or imprisonment with a warrant, information or indictment which was subsequently dismissed that another person was arrested or prosecuted and convicted for the same offense or offenses, and (2) in the case of an unjust conviction and imprisonment that he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (3) he did not by his own conduct cause or bring about his conviction. The claim shall be verified. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state.

(f) In order to obtain a judgment in his favor, claimant must prove by clear and convincing evidence that:

(1) He has been arrested and imprisoned, or both arrested and imprisoned, and charged by warrant, information or indictment for one or more felonies, and that the charges were dismissed against him when another person was subsequently charged, arrested and convicted of the same felony or felonies;

(2) He has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; or

(3) (A) He has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (B) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; or (C) the statute, or application thereof, on which the accusatory instrument was based violated the constitution of the United States or the state of West Virginia;

(4) He did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state; and

(5) He did not by his own conduct cause or bring about his conviction.

(g) If the court finds that the claimant is entitled to a judgment, it shall award damages in such sum of money as the court determines will fairly and reasonably compensate him.

(h) Any person claiming compensation under this section based on a pardon that was granted before the effective date of this section or the dismissal of an accusatory instrument that occurred before the effective date of this section shall file his claim within two years after the effective date of this section. Any person claiming compensation under this section based on a pardon that was granted on or after the effective date of this section or the dismissal of an accusatory instrument that occurred on or after the effective date of this section shall file his claim within two years after the pardon or dismissal.

(i) Any person claiming compensation under this section based on the dismissal of a felony charge or charges against him when another person is subsequently charged, arrested and convicted of the same felony charge or charges based upon a dismissal of the felony charge or charges that occurred before the effective date of this section shall file his claim within one year after the effective date of this section.