Senate Bill 0206c1

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    Florida Senate - 1998                            CS for SB 206

    By the Committee on Judiciary and Senator Crist





    308-2138-98

  1                      A bill to be entitled

  2         An act relating to civil liability arising from

  3         criminal conduct; amending s. 776.085, F.S.;

  4         barring recovery of damages for personal injury

  5         or injury to property in cases in which the

  6         claimant has incurred damages while engaged in

  7         certain criminal conduct; providing for the

  8         court to award attorney's costs and travel

  9         expenses to the prevailing party in any such

10         case; providing an effective date.

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12  Be It Enacted by the Legislature of the State of Florida:

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14         Section 1.  Section 776.085, Florida Statutes, is

15  amended to read:

16         776.085  Defense to civil action for damages; party

17  committed convicted of forcible or attempted to commit a

18  forcible felony or misdemeanor involving violence.--

19         (1)  It shall be a defense to any action for damages

20  for personal injury or wrongful death, or for injury to

21  property, that such action arose from injury sustained by a

22  participant during the commission or attempted commission of a

23  forcible felony or misdemeanor involving violence, including,

24  but not limited to, battery and domestic violence. The defense

25  authorized by this section shall be established by evidence

26  that the participant has committed a been convicted of such

27  forcible felony or misdemeanor involving violence, including,

28  but not limited to, battery and domestic violence, or

29  attempted to commit a forcible felony or misdemeanor involving

30  violence, including, but not limited to, battery and domestic

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    Florida Senate - 1998                            CS for SB 206
    308-2138-98




  1  violence, or by proof of the commission of such crime or

  2  attempted crime by a preponderance of the evidence.

  3         (2)  For the purposes of this section, the term

  4  "forcible felony" shall have the same meaning as in s. 776.08.

  5         (2)(3)  Any civil action in which the defense

  6  recognized by this section is raised shall be stayed by the

  7  court on the motion of the civil defendant during the pendency

  8  of any criminal action which forms the basis for the defense,

  9  unless the court finds that a conviction in the criminal

10  action would not form a valid defense under this section.

11         (3)(4)  In any civil action where a party prevails

12  based on the defense created by this section:

13         (a)  The losing party, if convicted of and incarcerated

14  for the crime or attempted crime, shall, as determined by the

15  court, lose any privileges provided by the correctional

16  facility, including, but not limited to:

17         1.  Canteen purchases;

18         2.  Telephone access;

19         3.  Outdoor exercise;

20         4.  Use of the library; and

21         5.  Visitation.

22         (b)  The court shall award a reasonable attorney's fees

23  and costs, including reasonable travel expenses, fee to be

24  paid to the prevailing party in equal amounts by the losing

25  party and the losing party's attorney; however, the losing

26  party's attorney is not personally responsible if he or she

27  has acted in good faith, based on the representations of his

28  or her client. If the losing party is incarcerated for the

29  crime or attempted crime and has insufficient assets to cover

30  payment of the costs of the action and the award of fees

31  pursuant to this paragraph, the party shall, as determined by

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    Florida Senate - 1998                            CS for SB 206
    308-2138-98




  1  the court, be required to pay by deduction from any payments

  2  the prisoner receives while incarcerated.

  3         (c)  If the losing party is incarcerated for the crime

  4  or attempted crime, the court shall issue a written order

  5  containing its findings and ruling pursuant to paragraphs (a)

  6  and (b) and shall direct that a certified copy be forwarded to

  7  the appropriate correctional institution or facility.

  8         Section 2.  This act shall take effect July 1, 1998.

  9

10          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
11                         Senate Bill 206

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13  The Committee Substitute for Senate Bill 206 amends s.
    776.085, F.S., in the following ways:
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    -    It provides a defense to civil actions arising out of the
15       commission of any felony or violent misdemeanor; and

16  -    It provides costs and fees and reasonable travel expenses
         to prevailing parties.
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