Florida Senate - 2011                                    SB 1508
       
       
       
       By Senator Wise
       
       
       
       
       5-01179-11                                            20111508__
    1                        A bill to be entitled                      
    2         An act relating to costs of prosecution; amending s.
    3         28.246, F.S.; requiring the clerk of the court to
    4         distribute the funds received from a defendant
    5         according to a specified order of priority when the
    6         defendant makes a partial payment to the clerk of
    7         costs of prosecution; requiring that a portion of the
    8         costs of prosecution be remitted to the State
    9         Attorneys Revenue Trust Fund; amending s. 903.286,
   10         F.S.; requiring that the clerk of the court withhold
   11         from the return of a cash bond sufficient funds to pay
   12         unpaid costs, including the costs of prosecution;
   13         amending s. 938.27, F.S.; imposing certain costs on
   14         persons whose cases are disposed of under a pretrial
   15         intervention program or pretrial substance abuse
   16         intervention program; requiring the court to impose
   17         the costs of prosecution and investigation on the
   18         defendant; prohibiting the court from converting such
   19         costs to court-ordered community service; clarifying
   20         the types of cases from which the clerk of the court
   21         must collect and dispense cost payments; requiring
   22         that the clerk of the court separately record each
   23         assessment and payment of costs of prosecution and
   24         provide a monthly report to the state attorney of such
   25         assessments and payments; requiring the clerk of the
   26         court to assign the first of any fees collected as
   27         payment for costs of prosecution; amending s. 985.032,
   28         F.S.; requiring that a juvenile who is adjudicated
   29         delinquent or has adjudication of delinquency withheld
   30         be assessed costs of prosecution; reenacting s.
   31         34.191(1), F.S., relating to the disposition of fines
   32         and forfeitures, to incorporate the amendment made to
   33         s. 28.246, F.S., in a reference thereto; providing an
   34         effective date.
   35  
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Section 28.246, Florida Statutes, is amended to
   39  read:
   40         28.246 Payment of court-related fees, charges, costs of
   41  prosecution, and costs; partial payments; distribution of
   42  funds.—
   43         (1) The clerk of the circuit court shall report the
   44  following information to the Legislature and the Florida Clerks
   45  of Court Operations Corporation on a form developed by the
   46  Department of Financial Services:
   47         (a) The total amount of mandatory fees, service charges,
   48  and costs; the total amount actually assessed; the total amount
   49  discharged, waived, or otherwise not assessed; and the total
   50  amount collected.
   51         (b) The amount of discretionary fees, service charges, and
   52  costs assessed; the total amount discharged; and the total
   53  amount collected.
   54         (c) The total amount of mandatory fines and other monetary
   55  penalties; the total amount assessed; the total amount
   56  discharged, waived, or otherwise not assessed; and the total
   57  amount collected.
   58         (d) The amount of discretionary fines and other monetary
   59  penalties assessed; the amount discharged; and the total amount
   60  collected.
   61  
   62  If provided to the clerk of court by the judge, the clerk, in
   63  reporting the amount assessed, shall separately identify the
   64  amount assessed pursuant to s. 938.30 as community service;
   65  assessed by reducing the amount to a judgment or lien; satisfied
   66  by time served; or other. The form developed by the Chief
   67  Financial Officer shall include separate entries for recording
   68  these amounts. The clerk shall submit the report on an annual
   69  basis 60 days after the end of the county fiscal year.
   70         (2) The clerk of the circuit court shall establish and
   71  maintain a system of accounts receivable for court-related fees,
   72  charges, and costs.
   73         (3) Court costs, fines, and other dispositional assessments
   74  shall be enforced by order of the courts, collected by the
   75  clerks of the circuit and county courts, and disbursed in
   76  accordance with authorizations and procedures as established by
   77  general law.
   78         (4) The clerk of the circuit court shall accept partial
   79  payments for court-related fees, service charges, costs, and
   80  fines in accordance with the terms of an established payment
   81  plan. An individual seeking to defer payment of fees, service
   82  charges, costs, or fines imposed by operation of law or order of
   83  the court under any provision of general law shall apply to the
   84  clerk for enrollment in a payment plan. The clerk shall enter
   85  into a payment plan with an individual who the court determines
   86  is indigent for costs. A monthly payment amount, calculated
   87  based upon all fees and all anticipated costs, is presumed to
   88  correspond to the person’s ability to pay if the amount does not
   89  exceed 2 percent of the person’s annual net income, as defined
   90  in s. 27.52(1), divided by 12. The court may review the
   91  reasonableness of the payment plan.
   92         (5) When receiving partial payment of fees, service
   93  charges, court costs, costs of prosecution, and fines, clerks
   94  shall distribute funds according to the following order of
   95  priority:
   96         (a) That portion of fees, service charges, court costs, and
   97  fines to be remitted to the state for deposit into the General
   98  Revenue Fund, and that portion of the costs of prosecution to be
   99  remitted to the state shall be deposited into the State
  100  Attorneys Revenue Trust Fund.
  101         (b) That portion of fees, service charges, court costs,
  102  costs of prosecution, and fines which are required to be
  103  retained by the clerk of the court or deposited into the Clerks
  104  of the Court Trust Fund within the Justice Administrative
  105  Commission.
  106         (c) That portion of fees, service charges, court costs,
  107  costs of prosecution, and fines payable to state trust funds,
  108  allocated on a pro rata basis among the various authorized funds
  109  if the total collection amount is insufficient to fully fund all
  110  such funds as provided by law.
  111         (d) That portion of fees, service charges, court costs,
  112  costs of prosecution, and fines payable to counties,
  113  municipalities, or other local entities, allocated on a pro rata
  114  basis among the various authorized recipients if the total
  115  collection amount is insufficient to fully fund all such
  116  recipients as provided by law.
  117  
  118  To offset processing costs, clerks may impose either a per-month
  119  service charge pursuant to s. 28.24(26)(b) or a one-time
  120  administrative processing service charge at the inception of the
  121  payment plan pursuant to s. 28.24(26)(c).
  122         (6) A clerk of court shall pursue the collection of any
  123  fees, service charges, fines, costs of prosecution, court costs,
  124  and liens for the payment of attorney’s fees and costs pursuant
  125  to s. 938.29 which remain unpaid after 90 days by referring the
  126  account to a private attorney who is a member in good standing
  127  of The Florida Bar or collection agent who is registered and in
  128  good standing pursuant to chapter 559. In pursuing the
  129  collection of such unpaid financial obligations through a
  130  private attorney or collection agent, the clerk of the court
  131  must have attempted to collect the unpaid amount through a
  132  collection court, collections docket, or other collections
  133  process, if any, established by the court, find this to be cost
  134  effective and follow any applicable procurement practices. The
  135  collection fee, including any reasonable attorney’s fee, paid to
  136  any attorney or collection agent retained by the clerk may be
  137  added to the balance owed in an amount not to exceed 40 percent
  138  of the amount owed at the time the account is referred to the
  139  attorney or agent for collection. The clerk shall give the
  140  private attorney or collection agent the application for the
  141  appointment of court-appointed counsel regardless of whether the
  142  court file is otherwise confidential from disclosure.
  143         Section 2. Section 903.286, Florida Statutes, is amended to
  144  read:
  145         903.286 Return of cash bond; requirement to withhold unpaid
  146  fines, fees, court costs; cash bond forms.—
  147         (1) Notwithstanding s. 903.31(2), the clerk of the court
  148  shall withhold from the return of a cash bond posted on behalf
  149  of a criminal defendant by a person other than a bail bond agent
  150  licensed pursuant to chapter 648 sufficient funds to pay any
  151  unpaid costs of prosecution, court fees, court costs, and
  152  criminal penalties. If sufficient funds are not available to pay
  153  all unpaid costs of prosecution, court fees, court costs, and
  154  criminal penalties, the clerk of the court shall immediately
  155  obtain payment from the defendant or enroll the defendant in a
  156  payment plan pursuant to s. 28.246.
  157         (2) All cash bond forms used in conjunction with the
  158  requirements of s. 903.09 must prominently display a notice
  159  explaining that all funds are subject to forfeiture and
  160  withholding by the clerk of the court for the payment of costs
  161  of prosecution, court fees, court costs, and criminal penalties
  162  on behalf of the criminal defendant regardless of who posted the
  163  funds.
  164         Section 3. Section 938.27, Florida Statutes, is amended to
  165  read:
  166         938.27 Judgment for costs on conviction.—
  167         (1) In all criminal and violation-of-probation or
  168  community-control cases, convicted persons and persons whose
  169  cases are disposed of pursuant to s. 948.08(6) or s. 948.16(1)
  170  are liable for payment of the costs of prosecution, including
  171  investigative costs incurred by law enforcement agencies, by
  172  fire departments for arson investigations, and by investigations
  173  of the Department of Financial Services or the Office of
  174  Financial Regulation of the Financial Services Commission, if
  175  requested by such agencies. The court shall include these costs
  176  in every judgment rendered against the convicted person. For
  177  purposes of this section, “convicted” means a determination of
  178  guilt, or of violation of probation or community control, which
  179  is a result of a plea, trial, or violation proceeding,
  180  regardless of whether adjudication is withheld.
  181         (2)(a) Notwithstanding any other law, court rule, or
  182  administrative order, the court shall impose the costs of
  183  prosecution and investigation on the defendant. Costs of
  184  prosecution and investigation may not be converted to any form
  185  of court-ordered community service in lieu of this financial
  186  obligation.
  187         (b)(a) The court shall impose the costs of prosecution and
  188  investigation notwithstanding the defendant’s present ability to
  189  pay. The court shall require the defendant to pay the costs
  190  within a specified period or in specified installments.
  191         (c)(b) The end of such period or the last such installment
  192  may shall not be later than:
  193         1. The end of the period of probation or community control,
  194  if probation or community control is ordered;
  195         2. Five years after the end of the term of imprisonment
  196  imposed, if the court does not order probation or community
  197  control; or
  198         3. Five years after the date of sentencing in any other
  199  case.
  200  
  201  However, in no event shall the obligation to pay any unpaid
  202  amounts expire if not paid in full within the period specified
  203  in this paragraph.
  204         (d)(c) If not otherwise provided by the court under this
  205  section, costs shall be paid immediately.
  206         (3) If a defendant is placed on probation or community
  207  control, payment of any costs under this section shall be a
  208  condition of such probation or community control. The court may
  209  revoke probation or community control if the defendant fails to
  210  pay these costs.
  211         (4) Any dispute as to the proper amount or type of costs
  212  shall be resolved by the court by the preponderance of the
  213  evidence. The burden of demonstrating the amount of costs
  214  incurred is on the state attorney. The burden of demonstrating
  215  the financial resources of the defendant and the financial needs
  216  of the defendant is on the defendant. The burden of
  217  demonstrating such other matters as the court deems appropriate
  218  is upon the party designated by the court as justice requires.
  219         (5) Any default in payment of costs may be collected by any
  220  means authorized by law for enforcement of a judgment.
  221         (6) The clerk of the court shall collect and dispense cost
  222  payments in any case, regardless of whether the disposition of
  223  the case takes place before the judge in open court or in any
  224  other manner provided by law.
  225         (a)The clerk of the court shall separately record each
  226  assessment and payment of costs of prosecution. Costs of
  227  prosecution must be assessed with respect to each case number
  228  before the court.
  229         (b)The clerk shall provide a monthly report to the state
  230  attorney of the assessments and payments recorded.
  231         (7) Investigative costs that are recovered shall be
  232  returned to the appropriate investigative agency that incurred
  233  the expense. Such costs include actual expenses incurred in
  234  conducting the investigation and prosecution of the criminal
  235  case; however, costs may also include the salaries of permanent
  236  employees. Any investigative costs recovered on behalf of a
  237  state agency must be remitted to the Department of Revenue for
  238  deposit in the agency operating trust fund, and a report of the
  239  payment must be sent to the agency, except that any
  240  investigative costs recovered on behalf of the Department of Law
  241  Enforcement shall be deposited in the department’s Forfeiture
  242  and Investigative Support Trust Fund under s. 943.362.
  243         (8) Costs for the state attorney shall be set in all cases
  244  at no less than $50 per case when a misdemeanor or criminal
  245  traffic offense is charged and no less than $100 per case when a
  246  felony offense is charged, including a proceeding in which the
  247  underlying offense is a violation of probation or community
  248  control. The court may set a higher amount upon a showing of
  249  sufficient proof of higher costs incurred. Costs recovered on
  250  behalf of the state attorney under this section shall be
  251  deposited into the State Attorneys Revenue Trust Fund to be used
  252  during the fiscal year in which the funds are collected, or in
  253  any subsequent fiscal year, for actual expenses incurred in
  254  investigating and prosecuting criminal cases, which may include
  255  the salaries of permanent employees, or for any other purpose
  256  authorized by the Legislature. Notwithstanding any law, court
  257  rule, or administrative order, the clerk shall assign the first
  258  of any fees or costs paid by a defendant as payment of the costs
  259  of prosecution.
  260         Section 4. Section 985.032, Florida Statutes, is amended to
  261  read:
  262         985.032 Legal representation for delinquency cases; costs
  263  of prosecution.—
  264         (1) For cases arising under this chapter, the state
  265  attorney shall represent the state.
  266         (2) A juvenile who is adjudicated delinquent or who has
  267  adjudication of delinquency withheld shall be assessed costs of
  268  prosecution as provided by s. 938.27.
  269         Section 5. For the purpose of incorporating the amendment
  270  made by this act to section 28.246, Florida Statutes, in a
  271  reference thereto, subsection (1) of section 34.191, Florida
  272  Statutes, is reenacted to read:
  273         34.191 Fines and forfeitures; dispositions.—
  274         (1) All fines and forfeitures arising from offenses tried
  275  in the county court shall be collected and accounted for by the
  276  clerk of the court and, other than the charge provided in s.
  277  318.1215, disbursed in accordance with ss. 28.2402, 34.045,
  278  142.01, and 142.03 and subject to the provisions of s. 28.246(5)
  279  and (6). Notwithstanding the provisions of this section, all
  280  fines and forfeitures arising from operation of the provisions
  281  of s. 318.1215 shall be disbursed in accordance with that
  282  section.
  283         Section 6. This act shall take effect July 1, 2011.