1

A bill to be entitled

2

An act relating to service of process; amending s. 48.021,

3

F.S.; allowing criminal witness subpoenas and criminal

4

summonses to be served by a special process server

5

appointed by the local sheriff or by a certified process

6

server; amending s. 48.27, F.S.; providing for the

7

selection of authorized certified process servers to serve

8

such subpoenas and summonses to conform to changes made by

9

the act; amending s. 56.041, F.S.; providing that all

10

unsatisfied executions held by the sheriff which were

11

docketed before October 1, 2001, or held after a specified

12

period may be returned to the issuing court; amending s.

13

56.21, F.S.; requiring the submission of an affidavit

14

before levying a judgment upon real property; requiring

15

the sheriff to furnish to the judgment debtor or the

16

debtor's attorney of record a copy of the notice of sale,

17

notice of levy, and affidavit within a specified period

18

before execution of a sale or levy; amending s. 56.27,

19

F.S.; requiring that priority of liens on real property be

20

based on the effective date of the judgment lien for a

21

specified purpose; requiring a levying creditor to deliver

22

the affidavit to the sheriff at the time of the levy

23

request setting forth certain information and

24

attestations; amending ss. 741.30 and 784.046, F.S.,

25

relating to service of process in cases of domestic

26

violence or sexual abuse; authorizing clerks of court to

27

transmit facsimile copies of previously certified

28

injunctions to sheriffs upon request; requiring sheriffs

29

to verify receipt of facsimile copies of injunctions with

30

clerks of court before attempting service; authorizing law

31

enforcement officers to serve facsimile copies of

32

injunctions in the same manner as certified copies;

33

providing an effective date.

34

35

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

36

37

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

38

Statutes, is amended to read:

39

     48.021  Process; by whom served.--

40

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

41

county where the person to be served is found, except that

42

initial nonenforceable civil process, criminal witness subpoenas,

43

and criminal summonses may be served by a special process server

44

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

45

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

46

Civil witness subpoenas may be served by any person authorized by

47

rules of civil procedure.

48

     Section 2.  Subsection (2) of section 48.27, Florida

49

Statutes, is amended to read:

50

     48.27  Certified process servers.--

51

     (2)(a) The addition of a person's name to the list

52

authorizes him or her to serve initial nonenforceable civil

53

process on a person found within the circuit where the process

54

server is certified when a civil action has been filed against

55

such person in the circuit court or in a county court in the

56

state. Upon filing an action in circuit or county court, a person

57

may select from the list for the circuit where the process is to

58

be served one or more certified process servers to serve initial

59

nonenforceable civil process.

60

     (b) The addition of a person's name to the list authorizes

61

him or her to serve criminal witness subpoenas and criminal

62

summonses on a person found within the circuit where the process

63

server is certified. The state in any proceeding or investigation

64

by a grand jury or any party in a criminal action, prosecution,

65

or proceeding may select from the list for the circuit where the

66

process is to be served one or more certified process servers to

67

serve the subpoena or summons.

68

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

69

Statutes, is amended to read:

70

     56.041  Executions; collection and return.--

71

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

72

docketed before October 1, 2001, or 20 years after the date of

73

issuance of final judgment upon which the execution was issued

74

may be returned, to the court issuing the execution, 20 years

75

after the date of issuance of final judgment upon which the

76

execution was issued. Upon such return, the clerk of the court of

77

issuance shall provide a receipt, to the sheriff submitting the

78

return, acknowledging the return of the unsatisfied execution.

79

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

80

read:

81

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

82

execution shall be given by advertisement once each week for 4

83

successive weeks in a newspaper published in the county in which

84

the sale is to take place. The time of such notice may be

85

shortened in the discretion of the court from which the execution

86

issued, upon affidavit that the property to be sold is subject to

87

decay and will not sell for its full value if held until date of

88

sale. On or before the date of the first publication or posting

89

of the notice of sale, a copy of the notice of sale shall be

90

furnished by the sheriff by certified mail to the attorney of

91

record of the judgment debtor, or to the judgment debtor at the

92

judgment debtor's last known address if the judgment debtor does

93

not have an attorney of record. Such copy of the notice of sale

94

shall be mailed even though a default judgment was entered. When

95

levying upon real or personal property, a notice of such levy and

96

execution sale and a copy of the affidavit required by s.

97

56.27(4) shall be sent by the sheriff to the attorneys of record

98

of all judgment creditors, or to all judgment creditors who do

99

not have an attorney of record, who have acquired a judgment lien

100

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

101

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

102

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

103

in any amendment to the judgment lien certificate, and to all

104

secured creditors who have filed financing statements as provided

105

in part V of chapter 679 in the name of the judgment debtor

106

reflecting a security interest in property of the kind to be sold

107

at the execution sale at the address listed in the financing

108

statement, or, if amended, in any amendment to the financing

109

statement. Such notice shall be made in the same manner as notice

110

is made to any judgment debtor under this section. When levying

111

upon real property, notice of such levy and execution sale and

112

affidavit required by s. 56.27(4) shall be made to the property

113

owner of record in the same manner as notice is made to any

114

judgment debtor pursuant to this section. When selling real or

115

personal property, the sale date shall not be earlier than 30

116

days after the date of the first advertisement.

117

     Section 5.  Subsections (1), (2), and (4) of section 56.27,

118

Florida Statutes, are amended to read:

119

     56.27  Executions; payment of money collected.--

120

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

121

the order prescribed, to the following: the sheriff, for costs;

122

the levying creditor in the amount of $500 as liquidated

123

expenses; and if the levy is upon real property, the first

124

priority lienholder under s. 55.10(1) and (2), s. 55.10; and if

125

the levy is upon personal property, the first priority lienholder

126

under s. 55.202, s. 55.204(3), or s. 55.208(2), as set forth in

127

an affidavit required by subsection (4), or his or her attorney,

128

in satisfaction of the judgment lien, if provided that the

129

judgment lien has not lapsed at the time of the levy. The receipt

130

of the attorney shall be a release of the officer paying the

131

money to him or her. If When the name of more than one attorney

132

appears in the court file, the money shall be paid to the

133

attorney who originally commenced the action or who made the

134

original defense unless the file shows that another attorney has

135

been substituted.

136

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

137

the amount needed to satisfy the provisions of subsection (1),

138

the surplus shall be paid in the order of priority to any

139

judgment lienholders whose judgment liens have not lapsed. For

140

the purpose of the sheriff's distribution of the surplus to

141

lienholders under this subsection:

142

     (a) Priority of liens on personal property shall be based

143

on the effective date of the judgment lien acquired under s.

144

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

145

affidavit required under subsection (4).

146

     (b) Priority of liens on real property shall be based on

147

the effective date of the judgment lien acquired under s.

148

55.10(1) and (2), as set forth in an affidavit required under

149

subsection (4).

150

151

If there is a surplus after all valid judgment liens and

152

execution liens have been satisfied, the surplus must be paid to

153

the owner of the property sold defendant.

154

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

155

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

156

the levy request to the sheriff, the levying creditor shall

157

deliver to the sheriff an affidavit setting forth all of the

158

following as to the judgment debtor:

159

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

160

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

161

or she has reviewed the database or judgment lien records

162

established in accordance with ss. 55.201-55.209 and that the

163

information contained in the affidavit based on that review is

164

true and correct. For a real property levy in accordance with s.

165

55.10(1) and (2), an attestation by the levying creditor or his

166

or her attorney of record that he or she has reviewed the records

167

of the clerk of court of the county where the property is

168

situated, or that he or she has performed a title search, and

169

that the information contained in the affidavit based on that

170

review or title search is true and correct.;

171

     (b)  The information required under s. 55.203(1) and (2) for

172

each judgment lien certificate indexed under the name of the

173

judgment debtor as to each judgment creditor; the file number

174

assigned to the record of the original and, if any, the second

175

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

176

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

177

the information contained in the certified copy of recordation of

178

lien pursuant to s. 55.10(1) and (2) for each lien recorded on

179

real property.; and

180

     (c)  A statement that the levying creditor either does not

181

have any other levy in process or, if another levy is in process,

182

the levying creditor believes in good faith that the total value

183

of the property under execution does not exceed the amount of

184

outstanding judgments.

185

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

186

741.30, Florida Statutes, is amended to read:

187

     741.30  Domestic violence; injunction; powers and duties of

188

court and clerk; petition; notice and hearing; temporary

189

injunction; issuance of injunction; statewide verification

190

system; enforcement.--

191

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

192

petition, financial affidavit, Uniform Child Custody Jurisdiction

193

and Enforcement Act affidavit, if any, notice of hearing, and

194

temporary injunction, if any, to the sheriff or a law enforcement

195

agency of the county where the respondent resides or can be

196

found, who shall serve it upon the respondent as soon thereafter

197

as possible on any day of the week and at any time of the day or

198

night. When requested by the sheriff, the clerk of court may

199

transmit a facsimile copy of an injunction that has been

200

certified by the clerk of court, and this facsimile copy may be

201

served in the same manner as a certified copy. Upon receiving

202

such a facsimile copy, the sheriff must verify receipt with the

203

sender before attempting to serve it upon the respondent. In

204

addition, if the sheriff is in possession of an injunction for

205

protection that has been certified by the clerk of court, the

206

sheriff may transmit a facsimile copy of that injunction to a law

207

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

208

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

209

furnishing to the sheriff such information on the respondent's

210

physical description and location as is required by the

211

department to comply with the verification procedures set forth

212

in this section. Notwithstanding any other provision of law to

213

the contrary, the chief judge of each circuit, in consultation

214

with the appropriate sheriff, may authorize a law enforcement

215

agency within the jurisdiction to effect service. A law

216

enforcement agency serving injunctions pursuant to this section

217

shall use service and verification procedures consistent with

218

those of the sheriff.

219

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

220

the assistance of a law enforcement agency, the court may order

221

that an officer from the appropriate law enforcement agency

222

accompany the petitioner and assist in placing the petitioner in

223

possession of the dwelling or residence, or otherwise assist in

224

the execution or service of the injunction. A law enforcement

225

officer shall accept a copy of an injunction for protection

226

against domestic violence, certified by the clerk of the court,

227

from the petitioner and immediately serve it upon a respondent

228

who has been located but not yet served.

229

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

230

vacated subsequent to the original service of documents

231

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

232

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

233

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

234

order in writing on the face of the original order.  In the event

235

a party fails or refuses to acknowledge the receipt of a

236

certified copy of an order, the clerk shall note on the original

237

order that service was effected.  If delivery at the hearing is

238

not possible, the clerk shall mail certified copies of the order

239

to the parties at the last known address of each party.  Service

240

by mail is complete upon mailing.  When an order is served

241

pursuant to this subsection, the clerk shall prepare a written

242

certification to be placed in the court file specifying the time,

243

date, and method of service and shall notify the sheriff.

244

245

If the respondent has been served previously with the temporary

246

injunction and has failed to appear at the initial hearing on the

247

temporary injunction, any subsequent petition for injunction

248

seeking an extension of time may be served on the respondent by

249

the clerk of the court by certified mail in lieu of personal

250

service by a law enforcement officer.

251

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

252

784.046, Florida Statutes, is amended to read:

253

     784.046  Action by victim of repeat violence, sexual

254

violence, or dating violence for protective injunction; powers

255

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

256

petition; notice and hearing; temporary injunction; issuance;

257

statewide verification system; enforcement.--

258

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

259

petition, notice of hearing, and temporary injunction, if any, to

260

the sheriff or a law enforcement agency of the county where the

261

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

262

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

263

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

264

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

265

injunction that has been certified by the clerk of court, and

266

this facsimile copy may be served in the same manner as a

267

certified copy. Upon receiving such a facsimile copy, the sheriff

268

must verify receipt with the sender before attempting to serve it

269

upon the respondent. In addition, if the sheriff is in possession

270

of an injunction for protection that has been certified by the

271

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

272

injunction to a law enforcement officer who shall serve it in the

273

same manner as a certified copy. The clerk of the court shall be

274

responsible for furnishing to the sheriff such information on the

275

respondent's physical description and location as is required by

276

the department to comply with the verification procedures set

277

forth in this section. Notwithstanding any other provision of law

278

to the contrary, the chief judge of each circuit, in consultation

279

with the appropriate sheriff, may authorize a law enforcement

280

agency within the chief judge's jurisdiction to effect this type

281

of service and to receive a portion of the service fee. No person

282

shall be authorized or permitted to serve or execute an

283

injunction issued under this section unless the person is a law

284

enforcement officer as defined in chapter 943.

285

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

286

the assistance of a law enforcement agency, the court may order

287

that an officer from the appropriate law enforcement agency

288

accompany the petitioner and assist in the execution or service

289

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

290

of an injunction for protection against repeat violence, sexual

291

violence, or dating violence, certified by the clerk of the

292

court, from the petitioner and immediately serve it upon a

293

respondent who has been located but not yet served.

294

     Section 8.  This act shall take effect October 1, 2008.