Senate Bill sb1712c2

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    Florida Senate - 2007                    CS for CS for SB 1712

    By the Committees on Criminal Justice; Judiciary; and Senator
    Crist




    591-2355-07

  1                      A bill to be entitled

  2         An act relating to service of process; amending

  3         s. 30.231, F.S.; increasing the fees charged by

  4         the sheriff in civil cases for service of

  5         process; exempting the State of Florida and its

  6         agencies from increased fees; deleting

  7         prohibition on additional fees for certain

  8         documents; amending s. 48.021, F.S.; providing

  9         that criminal witness subpoenas and criminal

10         summonses may be served by a special process

11         server appointed by the local sheriff or by a

12         certified process server; amending s. 56.041,

13         F.S.; providing that all unsatisfied executions

14         in the possession of the sheriff docketed

15         before October 1, 2001, may be returned to the

16         issuing court; amending s. 56.21, F.S.;

17         requiring the submission of an affidavit before

18         levying a judgment upon real property;

19         requiring the sheriff to furnish to the

20         judgment debtor or the debtor's attorney of

21         record a copy of the notice of sale, notice of

22         levy, and affidavit within a specified period

23         before execution of a sale or levy; amending s.

24         56.27, F.S.; requiring that priority of liens

25         on real property be based on the effective date

26         of the judgment lien; requiring a levying

27         creditor to deliver to the sheriff at the time

28         of the levy request an affidavit setting forth

29         certain information and attestations; amending

30         ss. 741.30 and 784.046, F.S., relating to

31         service of process in cases of domestic

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 1         violence or sexual abuse; authorizing clerks of

 2         court to transmit facsimile copies of

 3         previously certified injunctions to sheriffs

 4         upon request; requiring sheriffs to verify

 5         receipt of facsimile copies of injunctions with

 6         clerks of court before attempting service;

 7         authorizing law enforcement officers to serve

 8         facsimile copies of injunctions in the same

 9         manner as certified copies; providing an

10         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.  Subsections (1) and (4) of section 30.231,

15  Florida Statutes, are amended to read:

16         30.231  Sheriffs' fees for service of summons,

17  subpoenas, and executions.--

18         (1)  The sheriffs of all counties of the state in civil

19  cases shall charge fixed, nonrefundable fees for docketing and

20  service of process, according to the following schedule:

21         (a)  All summons or writs except executions: $40 $20

22  for each summons or writ to be served, except when more than

23  one summons or writ is issued at the same time out of the same

24  cause of action to be served upon one person or defendant at

25  the same time, in which case the sheriff shall be entitled to

26  one fee.

27         (b)  All writs except executions requiring a levy or

28  seizure of property: $50 in addition to the $40 $20 fee as

29  stated in paragraph (a).

30         (c)  Witness subpoenas: $40 $20 for each witness to be

31  served.

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 1         (d)  Executions:

 2         1.  Forty Twenty dollars for docketing and indexing

 3  each writ of execution, regardless of the number of persons

 4  involved.

 5         2.  Fifty dollars for each levy.

 6         a.  A levy is considered made when any property or any

 7  portion of the property listed or unlisted in the instructions

 8  for levy is seized, or upon demand of the sheriff the writ is

 9  satisfied by the defendant in lieu of seizure. Seizure

10  requires that the sheriff take actual possession, if

11  practicable, or, alternatively, constructive possession of the

12  property by order of the court.

13         b.  When the instructions are for levy upon real

14  property, a levy fee is required for each parcel described in

15  the instructions.

16         c.  When the instructions are for levy based upon

17  personal property, one fee is allowed, unless the property is

18  seized at different locations, conditional upon all of the

19  items being advertised collectively and the sale being held at

20  a single location. However, if the property seized cannot be

21  sold at one location during the same sale as advertised, but

22  requires separate sales at different locations, the sheriff is

23  then authorized to impose a levy fee for the property and sale

24  at each location.

25         3.  Forty Twenty dollars for advertisement of sale

26  under process.

27         4.  Forty Twenty dollars for each sale under process.

28         5.  Forty Twenty dollars for each deed, bill of sale,

29  or satisfaction of judgment.

30         (e)  The State of Florida or any of its agencies, when

31  appearing as appellant or petitioner, is exempt from the

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 1  increase in fees for docketing and service of process

 2  effective July 1, 2007.

 3         (4)  All fees collected under paragraphs (1)(a), (b),

 4  (c), and (d) shall be nonrefundable and shall be earned when

 5  each original request or service of process is made, and no

 6  additional fees shall be required for alias and pluries

 7  documents when service was not effected on the original

 8  document in that county by that sheriff.

 9         Section 2.  Subsection (1) of section 48.021, Florida

10  Statutes, is amended to read:

11         48.021  Process; by whom served.--

12         (1)  All process shall be served by the sheriff of the

13  county where the person to be served is found, except initial

14  nonenforceable civil process, criminal witness subpoenas, and

15  criminal summonses may be served by a special process server

16  appointed by the sheriff as provided for in this section or by

17  a certified process server as provided for in ss. 48.25-48.31.

18  Civil witness subpoenas may be served by any person authorized

19  by rules of civil procedure.

20         Section 3.  Subsection (2) of section 56.041, Florida

21  Statutes, is amended to read:

22         56.041  Executions; collection and return.--

23         (2)  All unsatisfied executions in the hands of the

24  sheriff docketed before October 1, 2001, or 20 years after the

25  date of issuance of final judgment upon which the execution

26  was issued may be returned, to the court issuing the

27  execution, 20 years after the date of issuance of final

28  judgment upon which the execution was issued.  Upon such

29  return, the clerk of the court of issuance shall provide a

30  receipt, to the sheriff submitting the return, acknowledging

31  the return of the unsatisfied execution.

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 1         Section 4.  Section 56.21, Florida Statutes, is amended

 2  to read:

 3         56.21  Execution sales; notice.--Notice of all sales

 4  under execution shall be given by advertisement once each week

 5  for 4 successive weeks in a newspaper published in the county

 6  in which the sale is to take place. The time of such notice

 7  may be shortened in the discretion of the court from which the

 8  execution issued, upon affidavit that the property to be sold

 9  is subject to decay and will not sell for its full value if

10  held until date of sale. On or before the date of the first

11  publication or posting of the notice of sale, a copy of the

12  notice of sale shall be furnished by the sheriff by certified

13  mail to the attorney of record of the judgment debtor, or to

14  the judgment debtor at the judgment debtor's last known

15  address if the judgment debtor does not have an attorney of

16  record. Such copy of the notice of sale shall be mailed even

17  though a default judgment was entered. When levying upon real

18  or personal property, a notice of such levy and execution sale

19  and a copy of the affidavit required by s. 56.27(4) shall be

20  sent by the sheriff to the attorneys of record of all judgment

21  creditors, or to all judgment creditors who do not have an

22  attorney of record, who have acquired a judgment lien as

23  provided in s. 55.10(1) and (2), s. 55.202, or s. 55.204(3),

24  and whose liens have not lapsed at the time of levy, at the

25  address listed in the judgment lien certificate, or, if

26  amended, in any amendment to the judgment lien certificate,

27  and to all secured creditors who have filed financing

28  statements as provided in part V of chapter 679 in the name of

29  the judgment debtor reflecting a security interest in property

30  of the kind to be sold at the execution sale at the address

31  listed in the financing statement, or, if amended, in any

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 1  amendment to the financing statement. Such notice shall be

 2  made in the same manner as notice is made to any judgment

 3  debtor under this section. When levying upon real property,

 4  notice of such levy and execution sale and affidavit required

 5  by s. 56.27(4) shall be made to the property owner of record

 6  in the same manner as notice is made to any judgment debtor

 7  pursuant to this section. When selling real or personal

 8  property, the sale date shall not be earlier than 30 days

 9  after the date of the first advertisement.

10         Section 5.  Subsections (1), (2), and (4) of section

11  56.27, Florida Statutes, are amended to read:

12         56.27  Executions; payment of money collected.--

13         (1)  All money received under executions shall be paid,

14  in the order prescribed, to the following: the sheriff, for

15  costs; the levying creditor in the amount of $500 as

16  liquidated expenses; and if the levy is upon real property,

17  the first priority lienholder under s. 55.10(1) and (2), s.

18  55.10; and if the levy is upon personal property, the first

19  priority lienholder under s. 55.202, s. 55.204(3), or s.

20  55.208(2), as set forth in an affidavit required by subsection

21  (4), or his or her attorney, in satisfaction of the judgment

22  lien, if provided that the judgment lien has not lapsed at the

23  time of the levy. The receipt of the attorney shall be a

24  release of the officer paying the money to him or her. If When

25  the name of more than one attorney appears in the court file,

26  the money shall be paid to the attorney who originally

27  commenced the action or who made the original defense unless

28  the file shows that another attorney has been substituted.

29         (2)  If When property sold under execution brings more

30  than the amount needed to satisfy the provisions of subsection

31  (1), the surplus shall be paid in the order of priority to any

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    Florida Senate - 2007                    CS for CS for SB 1712
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 1  judgment lienholders whose judgment liens have not lapsed.

 2  Priority of liens on personal property shall be based on the

 3  effective date of the judgment lien acquired under s. 55.202,

 4  s. 55.204(3), or s. 55.208(2), as set forth in an affidavit

 5  required under subsection (4). Priority of liens on real

 6  property shall be based on the effective date of the judgment

 7  lien acquired under s. 55.10(1) and (2), as set forth in an

 8  affidavit required under subsection (4). If there is a surplus

 9  after all valid judgment liens and execution liens have been

10  satisfied, the surplus must be paid to the defendant.

11         (4)  Before the date of the first publication or

12  posting of the notice of sale provided for under s. 56.21, at

13  the time of the levy request to the sheriff, the levying

14  creditor shall deliver to the sheriff an affidavit setting

15  forth all of the following as to the judgment debtor:

16         (a)  For a personal property levy, an attestation by

17  that the levying creditor or the creditor's attorney of record

18  that he or she has reviewed the database or judgment lien

19  records established in accordance with ss. 55.201-55.209 and

20  that the information contained in the affidavit based on that

21  review is true and correct. For real property levy in

22  accordance with s. 55.10(1) and (2), an attestation by the

23  levying creditor or his or her attorney of record that he or

24  she has reviewed the records of the clerk of court of the

25  county where the property is situated, or that he or she has

26  performed a title search, and that the information contained

27  in the affidavit based on that review or title search is true

28  and correct.;

29         (b)  The information required under s. 55.203(1) and

30  (2) for each judgment lien certificate indexed under the name

31  of the judgment debtor as to each judgment creditor; the file

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 1  number assigned to the record of the original and, if any, the

 2  second judgment lien; and the date of filing for each judgment

 3  lien certificate under s. 55.202 or s. 55.204(3). For real

 4  property, the information contained in the certified copy of

 5  recordation of lien pursuant to s. 55.10(1) and (2) for each

 6  lien recorded on real property.; and

 7         (c)  A statement that the levying creditor either does

 8  not have any other levy in process or, if another levy is in

 9  process, the levying creditor believes in good faith that the

10  total value of the property under execution does not exceed

11  the amount of outstanding judgments.

12         Section 6.  Paragraph (a) of subsection (8) of section

13  741.30, Florida Statutes, is amended to read:

14         741.30  Domestic violence; injunction; powers and

15  duties of court and clerk; petition; notice and hearing;

16  temporary injunction; issuance of injunction; statewide

17  verification system; enforcement.--

18         (8)(a)1.  The clerk of the court shall furnish a copy

19  of the petition, financial affidavit, Uniform Child Custody

20  Jurisdiction and Enforcement Act affidavit, if any, notice of

21  hearing, and temporary injunction, if any, to the sheriff or a

22  law enforcement agency of the county where the respondent

23  resides or can be found, who shall serve it upon the

24  respondent as soon thereafter as possible on any day of the

25  week and at any time of the day or night. When requested by

26  the sheriff, the clerk of court may transmit a facsimile copy

27  of an injunction that has been certified by the clerk of

28  court, and this facsimile copy may be served in the same

29  manner as a certified copy. Upon receiving a facsimile copy,

30  the sheriff must verify receipt with the sender before

31  attempting to serve it upon the respondent. In addition, if

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    Florida Senate - 2007                    CS for CS for SB 1712
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 1  the sheriff is in possession of an injunction for protection

 2  that has been certified by the clerk of court, the sheriff may

 3  transmit a facsimile copy of that injunction to a law

 4  enforcement officer who shall serve it in the same manner as a

 5  certified copy. The clerk of the court shall be responsible

 6  for furnishing to the sheriff such information on the

 7  respondent's physical description and location as is required

 8  by the department to comply with the verification procedures

 9  set forth in this section. Notwithstanding any other provision

10  of law to the contrary, the chief judge of each circuit, in

11  consultation with the appropriate sheriff, may authorize a law

12  enforcement agency within the jurisdiction to effect service.

13  A law enforcement agency serving injunctions pursuant to this

14  section shall use service and verification procedures

15  consistent with those of the sheriff.

16         2.  When an injunction is issued, if the petitioner

17  requests the assistance of a law enforcement agency, the court

18  may order that an officer from the appropriate law enforcement

19  agency accompany the petitioner and assist in placing the

20  petitioner in possession of the dwelling or residence, or

21  otherwise assist in the execution or service of the

22  injunction. A law enforcement officer shall accept a copy of

23  an injunction for protection against domestic violence,

24  certified by the clerk of the court, from the petitioner and

25  immediately serve it upon a respondent who has been located

26  but not yet served.

27         3.  All orders issued, changed, continued, extended, or

28  vacated subsequent to the original service of documents

29  enumerated under subparagraph 1., shall be certified by the

30  clerk of the court and delivered to the parties at the time of

31  the entry of the order.  The parties may acknowledge receipt

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 1  of such order in writing on the face of the original order.

 2  In the event a party fails or refuses to acknowledge the

 3  receipt of a certified copy of an order, the clerk shall note

 4  on the original order that service was effected.  If delivery

 5  at the hearing is not possible, the clerk shall mail certified

 6  copies of the order to the parties at the last known address

 7  of each party.  Service by mail is complete upon mailing.

 8  When an order is served pursuant to this subsection, the clerk

 9  shall prepare a written certification to be placed in the

10  court file specifying the time, date, and method of service

11  and shall notify the sheriff.

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13  If the respondent has been served previously with the

14  temporary injunction and has failed to appear at the initial

15  hearing on the temporary injunction, any subsequent petition

16  for injunction seeking an extension of time may be served on

17  the respondent by the clerk of the court by certified mail in

18  lieu of personal service by a law enforcement officer.

19         Section 7.  Paragraph (a) of subsection (8) of section

20  784.046, Florida Statutes, is amended to read:

21         784.046  Action by victim of repeat violence, sexual

22  violence, or dating violence for protective injunction; powers

23  and duties of court and clerk of court; filing and form of

24  petition; notice and hearing; temporary injunction; issuance;

25  statewide verification system; enforcement.--

26         (8)(a)1.  The clerk of the court shall furnish a copy

27  of the petition, notice of hearing, and temporary injunction,

28  if any, to the sheriff or a law enforcement agency of the

29  county where the respondent resides or can be found, who shall

30  serve it upon the respondent as soon thereafter as possible on

31  any day of the week and at any time of the day or night. When

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 1  requested by the sheriff, the clerk of court may transmit a

 2  facsimile copy of an injunction that has been certified by the

 3  clerk of court, and this facsimile copy may be served in the

 4  same manner as a certified copy. Upon receiving a facsimile

 5  copy, the sheriff must verify receipt with the sender before

 6  attempting to serve it upon the respondent. In addition, if

 7  the sheriff is in possession of an injunction for protection

 8  that has been certified by the clerk of court, the sheriff may

 9  transmit a facsimile copy of that injunction to a law

10  enforcement officer who shall serve it in the same manner as a

11  certified copy. The clerk of the court shall be responsible

12  for furnishing to the sheriff such information on the

13  respondent's physical description and location as is required

14  by the department to comply with the verification procedures

15  set forth in this section. Notwithstanding any other provision

16  of law to the contrary, the chief judge of each circuit, in

17  consultation with the appropriate sheriff, may authorize a law

18  enforcement agency within the chief judge's jurisdiction to

19  effect this type of service and to receive a portion of the

20  service fee. No person shall be authorized or permitted to

21  serve or execute an injunction issued under this section

22  unless the person is a law enforcement officer as defined in

23  chapter 943.

24         2.  When an injunction is issued, if the petitioner

25  requests the assistance of a law enforcement agency, the court

26  may order that an officer from the appropriate law enforcement

27  agency accompany the petitioner and assist in the execution or

28  service of the injunction. A law enforcement officer shall

29  accept a copy of an injunction for protection against repeat

30  violence, sexual violence, or dating violence, certified by

31  the clerk of the court, from the petitioner and immediately

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 1  serve it upon a respondent who has been located but not yet

 2  served.

 3         Section 8.  This act shall take effect July 1, 2007.

 4  

 5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 6                            CS/SB 1712

 7                                 

 8  The Committee Substitute exempts the State of Florida or its
    agencies from paying the increased fees for service of process
 9  approved in the bill.

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