| 1 | The Committee on Judiciary recommends the following: |
| 2 |
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| 3 | Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to delivery of writs, notice, and service |
| 7 | of process; amending s. 48.031, F.S.; deleting the |
| 8 | requirement to use certified mail in service of a subpoena |
| 9 | on a witness in specified cases; prohibiting a finding of |
| 10 | contempt for failure to appear in response to a subpoena |
| 11 | that is not delivered by certified mail; allowing the |
| 12 | posting of a criminal witness subpoena under specified |
| 13 | conditions; requiring the placement of certain information |
| 14 | on the copy of the process served; providing for |
| 15 | alternative methods of service under certain |
| 16 | circumstances; amending s. 48.081, F.S.; providing |
| 17 | alternative methods of service on a corporation; amending |
| 18 | s. 48.21, F.S.; requiring servers of process to provide |
| 19 | certain information on the return of service; amending s. |
| 20 | 48.29, F.S.; revising the requirement that certified |
| 21 | process servers provide certain information on the face of |
| 22 | the process served; amending s. 83.13, F.S.; authorizing |
| 23 | the party who had a distress writ issued to deliver the |
| 24 | writ to a sheriff in another county; amending s. 832.07, |
| 25 | F.S.; providing for alternative method of notice sent by |
| 26 | the holder to the maker or drawer of a check, draft, or |
| 27 | order, payment of which is refused because of lack of |
| 28 | funds or credit; amending s. 409.257, F.S.; revising a |
| 29 | provision for service of witness subpoenas, to conform; |
| 30 | providing an effective date. |
| 31 |
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| 32 | Be It Enacted by the Legislature of the State of Florida: |
| 33 |
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| 34 | Section 1. Subsection (3) of section 48.031, Florida |
| 35 | Statutes, is amended, and subsections (5) and (6) are added to |
| 36 | said section, to read: |
| 37 | 48.031 Service of process generally; service of witness |
| 38 | subpoenas.-- |
| 39 | (3)(a) The service of process of witness subpoenas, |
| 40 | whether in criminal cases or civil actions, shall is to be made |
| 41 | as provided in subsection (1). However, service of a subpoena on |
| 42 | a witness in a criminal traffic case, a misdemeanor case, or a |
| 43 | second degree or third degree felony may be made by certified |
| 44 | United States mail directed to the witness at the last known |
| 45 | address, and the such service must be mailed at least 7 days |
| 46 | prior to the date of the witness's required appearance. Failure |
| 47 | of a witness to appear in response to a subpoena served by |
| 48 | United States mail that is not certified may not be grounds for |
| 49 | finding the witness in contempt of court. |
| 50 | (b) A criminal witness subpoena may be posted by a person |
| 51 | authorized to serve process at the witness's residence if three |
| 52 | attempts to serve the subpoena, made at different times of the |
| 53 | day or night on different dates, have failed. The subpoena must |
| 54 | be posted at least 5 days prior to the date of the witness's |
| 55 | required appearance. |
| 56 | (5) A person serving process shall place on the copy |
| 57 | served the date and time of service and his or her |
| 58 | identification number and initials for all services of process. |
| 59 | (6) If the only address for a person to be served, which |
| 60 | is discoverable through public records, is a private mailbox, |
| 61 | substitute service may be made by leaving a copy of the process |
| 62 | with the person in charge of the private mailbox, but only if |
| 63 | the process server determines that the person to be served |
| 64 | maintains a mailbox at that location. |
| 65 | Section 2. Subsection (3) of section 48.081, Florida |
| 66 | Statutes, is amended to read: |
| 67 | 48.081 Service on corporation.-- |
| 68 | (3)(a) As an alternative to all of the foregoing, process |
| 69 | may be served on the agent designated by the corporation under |
| 70 | s. 48.091. However, if service cannot be made on a registered |
| 71 | agent because of failure to comply with s. 48.091, service of |
| 72 | process shall be permitted on any employee at the corporation's |
| 73 | principal place of business or on any employee of the registered |
| 74 | agent. |
| 75 | (b) If the address provided for the registered agent, |
| 76 | officer, director, or principal place of business is a residence |
| 77 | or private mailbox, service on the corporation may be made by |
| 78 | serving the registered agent, officer, or director in accordance |
| 79 | with s. 48.031. |
| 80 | Section 3. Section 48.21, Florida Statutes, is amended to |
| 81 | read: |
| 82 | 48.21 Return of execution of process.--Each person who |
| 83 | effects service of process All officers to whom process is |
| 84 | directed shall note on it, or on a return-of-service form |
| 85 | attached thereto, the date and time when it comes to hand, the |
| 86 | date and time when it is served executed, the manner of service |
| 87 | execution, the name of the person on whom it was served, |
| 88 | executed and, if the such person is served in a representative |
| 89 | capacity, the position occupied by the person. A failure to |
| 90 | state the foregoing facts invalidates the service, but the |
| 91 | return is amendable to state the truth at any time on |
| 92 | application to the court from which the process issued. On |
| 93 | amendment, service is as effective as if the return had |
| 94 | originally stated the omitted facts. A failure to state all the |
| 95 | facts in the return shall subject the person effecting service |
| 96 | officer so failing to a fine not exceeding $10, in the court's |
| 97 | discretion. |
| 98 | Section 4. Subsection (6) of section 48.29, Florida |
| 99 | Statutes, is amended to read: |
| 100 | 48.29 Certification of process servers.-- |
| 101 | (6)(a) A certified process server shall place the |
| 102 | information provided in s. 48.031(5) on the copy served on the |
| 103 | face of any process served by him or her, his or her printed |
| 104 | name, signature, and identification number, and words stating |
| 105 | that he or she is a certified process server in the circuit |
| 106 | wherein he or she is serving the process. In addition, the |
| 107 | certified process server shall endorse on the original process, |
| 108 | and on all copies served, the date and hour of service. |
| 109 | (b) Return of service shall be made by a certified process |
| 110 | server on a form which has been reviewed and approved by the |
| 111 | court. |
| 112 | Section 5. Section 83.13, Florida Statutes, is amended to |
| 113 | read: |
| 114 | 83.13 Levy of writ.--The sheriff shall execute the writ by |
| 115 | service on defendant and, upon the order of the court, by levy |
| 116 | on property distrainable for rent or advances, if found in the |
| 117 | sheriff's jurisdiction. If the property is not so found but is |
| 118 | in another jurisdiction, the party who had the writ issued |
| 119 | sheriff shall deliver the writ to the proper sheriff in the |
| 120 | other jurisdiction; and that the other sheriff shall execute the |
| 121 | writ, upon order of the court, by levying on the property and |
| 122 | delivering it to the sheriff of the county in which the action |
| 123 | is pending, to be disposed of according to law, unless he or she |
| 124 | is ordered by the court from which the writ emanated to hold the |
| 125 | property and dispose of it in his or her jurisdiction according |
| 126 | to law. If the plaintiff shows by a sworn statement that the |
| 127 | defendant cannot be found within the state, the levy on the |
| 128 | property suffices as service on the defendant. |
| 129 | Section 6. Subsection (1) of section 832.07, Florida |
| 130 | Statutes, is amended to read: |
| 131 | 832.07 Prima facie evidence of intent; identity.-- |
| 132 | (1) INTENT.-- |
| 133 | (a) In any prosecution or action under this chapter, the |
| 134 | making, drawing, uttering, or delivery of a check, draft, or |
| 135 | order, payment of which is refused by the drawee because of lack |
| 136 | of funds or credit, shall be prima facie evidence of intent to |
| 137 | defraud or knowledge of insufficient funds in, or credit with, |
| 138 | such bank, banking institution, trust company, or other |
| 139 | depository, unless such maker or drawer, or someone for him or |
| 140 | her, shall have paid the holder thereof the amount due thereon, |
| 141 | together with a service charge not to exceed the service fees |
| 142 | authorized under s. 832.08(5) or an amount of up to 5 percent of |
| 143 | the face amount of the check, whichever is greater, within 7 |
| 144 | days after receiving written notice that such check, draft, or |
| 145 | order has not been paid to the holder thereof, and bank fees |
| 146 | incurred by the holder. In the event of legal action for |
| 147 | recovery, the maker or drawer may be additionally liable for |
| 148 | court costs and reasonable attorney's fees. Notice mailed by |
| 149 | certified or registered mail, evidenced by return receipt, or by |
| 150 | first-class mail, evidenced by an affidavit of service of mail, |
| 151 | to the address printed on the check or given at the time of |
| 152 | issuance, or, if more accurate information is available, to the |
| 153 | maker or drawer's last known address, shall be deemed sufficient |
| 154 | and equivalent to notice having been received by the maker or |
| 155 | drawer, whether such notice shall be returned undelivered or |
| 156 | not. The form of such notice shall be substantially as follows: |
| 157 |
|
| 158 | "You are hereby notified that a check, numbered _____, in |
| 159 | the face amount of $_____, issued by you on ... (date) ..., |
| 160 | drawn upon ... (name of bank) ..., and payable to _____, has |
| 161 | been dishonored. Pursuant to Florida law, you have 7 days from |
| 162 | receipt of this notice to tender payment of the full amount of |
| 163 | such check plus a service charge of $25, if the face value does |
| 164 | not exceed $50, $30, if the face value exceeds $50 but does not |
| 165 | exceed $300, $40, if the face value exceeds $300, or an amount |
| 166 | of up to 5 percent of the face amount of the check, whichever is |
| 167 | greater, the total amount due being $_____ and _____ cents. |
| 168 | Unless this amount is paid in full within the time specified |
| 169 | above, the holder of such check may turn over the dishonored |
| 170 | check and all other available information relating to this |
| 171 | incident to the state attorney for criminal prosecution. You may |
| 172 | be additionally liable in a civil action for triple the amount |
| 173 | of the check, but in no case less than $50, together with the |
| 174 | amount of the check, a service charge, court costs, reasonable |
| 175 | attorney fees, and incurred bank fees, as provided in s. |
| 176 | 68.065." |
| 177 |
|
| 178 | Subsequent persons receiving a check, draft, or order from the |
| 179 | original payee or a successor endorsee have the same rights that |
| 180 | the original payee has against the maker of the instrument, |
| 181 | provided such subsequent persons give notice in a substantially |
| 182 | similar form to that provided above. Subsequent persons |
| 183 | providing such notice shall be immune from civil liability for |
| 184 | the giving of such notice and for proceeding under the forms of |
| 185 | such notice, so long as the maker of the instrument has the same |
| 186 | defenses against these subsequent persons as against the |
| 187 | original payee. However, the remedies available under this |
| 188 | section may be exercised only by one party in interest. |
| 189 | (b) When a check is drawn on a bank in which the maker or |
| 190 | drawer has no account or a closed account, it shall be presumed |
| 191 | that such check was issued with intent to defraud, and the |
| 192 | notice requirement set forth in this section shall be waived. |
| 193 | Section 7. Section 409.257, Florida Statutes, is amended |
| 194 | to read: |
| 195 | 409.257 Service of process.--The service of initial |
| 196 | process and orders in lawsuits filed by the department, under |
| 197 | this act, shall be served by the sheriff in the county where the |
| 198 | person to be served may be found. The sheriff shall be |
| 199 | reimbursed at the prevailing rate of federal financial |
| 200 | participation for service of process and orders as allowed by |
| 201 | law. The sheriff shall bill the department monthly as provided |
| 202 | for in s. 30.51(2). In addition, process and orders may be |
| 203 | served or executed by authorized agents of the department at the |
| 204 | department's discretion; provided that the agent of the |
| 205 | department does not take any action against personal property, |
| 206 | real property, or persons. Notices and other intermediate |
| 207 | process, except witness subpoenas, shall be served by the |
| 208 | department as provided for in the Florida Rules of Civil |
| 209 | Procedure. Witness subpoenas shall be served by the department |
| 210 | by United States certified mail as provided for in s. 48.031(3). |
| 211 | Section 8. This act shall take effect July 1, 2004. |