TN 31 (11-17)

A. PR 17-151 Validity of Suspension of Title II Benefits During Periods of Incarceration where State Subsequently Vacates Conviction – Florida

Date: September 19, 2017

1. Syllabus

Once a court overturns a beneficiary’s conviction and no additional legal proceedings are required, reinstate the beneficiary’s monthly benefits and repay any withheld benefits. However, if a beneficiary must undergo a new trial and the correctional facility releases the beneficiary pending the new trial, reinstate current monthly benefits. Benefit reinstatement occurs effective with the first full month after the beneficiary’s release from the correctional institution. Do not make any determination as to whether we should repay a beneficiary’s withheld benefits until after disposition of his or her pending trial. If the beneficiary’s new trial results in the beneficiary’s conviction and the court issues a sentence that includes time served under the first conviction, do not repay benefits for that already suspended period.

2. Opinion

QUESTION

You asked whether the Social Security Administration (SSA) should repay Title II retirement benefits it suspended during the number holder’s confinement where the state court subsequently vacated the conviction and ordered a new trial.

OPINION

Because the state court ordered a new trial when it overturned the conviction in February 2016, and additional legal proceedings are required, SSA should not repay the benefits it withheld during number holder’s confinement under the original conviction.

BACKGROUND

According to the information provided, on September XX, 2011, J~, the number holder (NH), was found guilty of second-degree murder after a jury trial. On December XX, 2011, the court sentenced NH to serve 30 years in prison. NH appealed, after which the Florida Fifth District Court of Appeals affirmed the conviction.

NH subsequently filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, asserting ineffective assistance of trial and appellate counsel. On February XX, 2016, the Circuit Court of the Ninth Judicial Circuit, in and for O~ County, Florida, granted the motion, vacated his conviction and sentence, and reversed for a new trial. The state appealed, and on June XX, 2017, the Florida Fifth District Court of Appeals affirmed the lower court’s order. NH was released from prison on July XX, 2017.

Based on NH’s confinement in prison, SSA suspended NH’s retirement benefits from December 2011 to July 2017 pursuant to section 202(x) of the Social Security Act (Act). SSA reinstated NH’s benefits as of August 2017 when NH was released from prison. NH contacted SSA, asking SSA to reinstate his benefits from December 2011 to July 2017 because his conviction had been vacated.

DISCUSSION

Under section 202(x) of the Act, SSA cannot pay Title II benefits to any individual for any month (or part of a month) in which he or she is confined in jail, prison, or other correctional facility for conviction of a criminal offense. See Act § 202(x)(1)(A)(i); 20 C.F.R. § 404.468(a) (2017);*¹ Program Operations Manual System (POMS) GN 02607.001A.1.a. Title II benefits are suspended when an individual is convicted of a criminal offense and sentenced to a period of confinement in a correctional facility. See POMS GN 02607.160A.1.b.

Confinement is defined as residing in a correctional or mental health institution. See Act § 202(x)(1)(A)(i)-(iii); 20 C.F.R. § 404.468(c); POMS GN 02607.001B.1. Confinement begins on the date the individual is admitted into custody after sentencing and ends with pardon, parole, or end of sentence and an official release. See 20 C.F.R. § 404.468(c); POMS GN 02607.160A.3. A conviction includes a court verdict that finds a defendant guilty upon conclusion of a trial. See POMS GN 02607.001B.2. The primary rationale underlying the prisoner suspension-of-payment provision is that a convicted criminal defendant is maintained at public expense and has no need for a continuing source of income, i.e., social security benefits. See POMS PR 06805.012A (PR 00-219).

SSA may reopen a determination to suspend benefits if a conviction of a crime that affected the individual’s right to receive benefits is overturned. See 20 C.F.R. § 404.988(c)(11)(ii). If a conviction is overturned and no additional legal proceedings are required, SSA reinstates the individual’s suspended benefits and repays any benefits that SSA withheld. See POMS GN 02607.200A.3.a. If a new trial is required when the court overturns a conviction and the individual is released pending the new trial, SSA reinstates benefits effective the first full month after the individual’s release from the correctional institution. See POMS GN 02607.200A.3.b. If the new trial results in a conviction and the court issues a sentence that includes time served under the first conviction, SSA does not repay benefits for the period already suspended on the first conviction. See POMS GN 02607.200A.3.b.

Florida law provides, in part, that a Rule 3.850 motion to vacate, set aside, or correct sentence can be filed on the grounds that the judgment was entered or sentence was imposed in violation of the United States or Florida Constitutions. See Fla. R. Crim. P. Rule 3.850(a)(1) (West 2017). “When a new trial is granted, the new trial shall proceed in all respects as if no former trial had occurred.” Fla. R. Crim. P. Rule 3.640.

Here, the state court granted NH’s Rule 3.850 motion, vacated his conviction and sentence, and ordered a new trial. Although the court vacated NH’s conviction, the court also ordered a new trial. Therefore, additional legal proceedings are required, and NH is not entitled, at this time, to repayment of benefits that SSA withheld during his confinement. There is, however, the possibility that SSA may need to repay benefits withheld during NH’s confinement if NH provides further documentation that he is acquitted after a second trial or if the prosecutor permanently dismisses or declines to further prosecute the case.

CONCLUSION

Because the state court ordered a new trial when it vacated NH’s conviction in February 2016, additional legal proceedings are required, and SSA should not repay the benefits it withheld during NH’s confinement under the first conviction. The determination as to whether SSA should repay the withheld benefits cannot be made until after disposition of the pending trial.

B. PR 08-010 Request for Payment of Suspended Benefits to Pardoned Convicted Felon - Florida Applicant and Number Holder: R~

Date: October 16, 2007

1. Syllabus

The legal opinion provided in this case represents a supporting position for the current prisoner suspension provisions. The Title II prisoner suspension provision provide that Title II social security benefits cannot be paid to any individual for any month (or part of a month) for which he or she is confined in a correctional facility for a felony conviction. Confinement in a correctional facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. Therefore, an individual is considered "convicted" unless his or her guilty plea is set aside or his or her conviction is overturned.

2. Opinion

QUESTION

You have asked whether a convicted felon who was pardoned by the Governor of Florida and released from confinement in prison is entitled to Social Security benefits for the time he was confined in prison.

ANSWER

We conclude the applicant is not entitled to re-payment of benefits suspended during his confinement in prison.

BACKGROUND

R~, the applicant and number holder (NH), was receiving Social Security disability insurance benefits until he was convicted of several counts of trafficking in Oxycodone, a felony, and sentenced to prison in April 2004. Once confined in prison, the Social Security Administration (SSA) suspended NH's benefits pursuant to the Social Security Act (Act) and the implementing regulations. Later evidence revealed that NH had not been selling the significant amounts of Oxycodone he possessed, but was taking the medication himself. The Governor's staff determined that the 25-year mandatory sentence NH received was excessive given his circumstances. On September XX, 2007, the Governor issued an executive order commuting NH's sentence to time served and releasing him from confinement, remitting his fine, and granting him a full pardon with authority to own, possess, or use firearms. NH has requested payment of the benefits suspended while he was confined.

DISCUSSION

Benefits cannot be paid to any individual for any month (or part of a month) for which he or she is confined in a correctional facility for a felony conviction. See Act § 202(x)(1)(A)(i), 42 U.S.C. § 402(x)(1)(A)(i) (The Act); 20 C.F.R. § 404.468(a) (2007) (benefits cannot be paid to an individual for any month or part of a month that he or she was confined in a jail or prison for a criminal offense). Confinement in a correctional facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. 20 C.F.R. § 404.468(c). An individual is considered "convicted" unless his or her guilty plea is set aside or his or her conviction is overturned. Program Operations Manual System GN 02607.160(B)(1). NH was confined in a correctional facility for a felony conviction and was not released by pardon until September XX, 2007. His conviction was not overturned. Accordingly, under the Act and the implementing regulations, SSA properly suspended NH's benefits.

Additionally, Florida regulations indicate that NH's full pardon does not nullify his conviction and confinement. Florida's Rules of Executive Clemency state that a full pardon "unconditionally releases a person from punishment and forgives guilt for any Florida convictions." Florida Parole Commission, http://www.fpc.state.fl.us. Robert W~, the Governor's attorney-advisor on clemency matters, stated that a full pardon in Florida does not nullify a conviction; it essentially is a commutation of the sentence, forgiveness of the guilt, and a restoration of civil rights. As noted above, the Governor's office issued the pardon not because NH was not guilty of a felony, but because his mandatory 25-year sentence seemed unduly harsh given the circumstances.

CONCLUSION

NH is not entitled to payment of the Social Security benefits suspended during his confinement in prison for conviction of a felony. The Act would not prevent presumption of payment of benefits after NH's confinement ended with his September XX, 2007, pardon.

Mary Ann S~
Regional Chief Counsel
Laurie G. R~
Assistant Regional Counsel

Footnotes:

[1]

^. * All references to 20 C.F.R. are to the 2017 version.