Florida Senate - 2008 CS for CS for SB 1730

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

591-07898-08 20081730c2

A bill to be entitled

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

F.S.; allowing criminal witness subpoenas and criminal

summonses to be served by a special process server

appointed by the local sheriff or by a certified process

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

selection of authorized certified process servers to serve

such subpoenas and summonses to conform to changes made by

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

unsatisfied executions held by the sheriff which were

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

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

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

before levying a judgment upon real property; requiring

the sheriff to furnish to the judgment debtor or

lienholder or the debtor's or lienholder's attorney of

record a copy of the notice of sale, notice of levy, and

affidavit within a specified period before execution of a

sale or levy; amending s. 56.27, F.S.; requiring that

priority of liens on real property be based on the

effective date of the judgment lien for a specified

purpose, unless an affidavit discloses that the property

is subject to a recorded mortgage, financing statement,

tax warrant or other lien that is junior in priority to

the judgment lien; requiring a levying creditor to deliver

the affidavit to the sheriff at the time of the levy

request setting forth certain information and

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

relating to service of process in cases of domestic

violence or sexual abuse; authorizing clerks of court to

transmit facsimile or electronic copies of previously

certified injunctions to sheriffs upon request; requiring

sheriffs to verify receipt of facsimile or electronic

copies of injunctions with clerks of court before

attempting service; authorizing law enforcement officers

to serve facsimile or electronic copies of injunctions in

the same manner as certified copies; providing an

effective date.

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

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

Statutes, is amended to read:

48.021 Process; by whom served.--

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

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

initial nonenforceable civil process, criminal witness subpoenas,

and criminal summonses may be served by a special process server

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

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

Civil witness subpoenas may be served by any person authorized by

rules of civil procedure.

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

Statutes, is amended to read:

48.27 Certified process servers.--

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

authorizes him or her to serve initial nonenforceable civil

process on a person found within the circuit where the process

server is certified when a civil action has been filed against

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

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

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

be served one or more certified process servers to serve initial

nonenforceable civil process.

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

him or her to serve criminal witness subpoenas and criminal

summonses on a person found within the circuit where the process

server is certified. The state in any proceeding or investigation

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

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

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

serve the subpoena or summons.

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

Statutes, is amended to read:

56.041 Executions; collection and return.--

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

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

issuance of final judgment upon which the execution was issued

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

after the date of issuance of final judgment upon which the

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

issuance shall provide a receipt, to the sheriff submitting the

return, acknowledging the return of the unsatisfied execution.

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

read:

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

execution shall be given by advertisement once each week for 4

successive weeks in a newspaper published in the county in which

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

shortened in the discretion of the court from which the execution

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

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

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

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

furnished by the sheriff by certified mail to the attorney of

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

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

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

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

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

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

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

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of all judgment creditors and other lienholders, or to all

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judgment creditors and other lienholders who do not have an

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

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in s. 55.10(1) and (2), s. 55.202, or s. 55.204(3), or s. 695.01,

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

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address listed in the judgment lien certificate or other recorded

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liens, or, if amended, in any amendment thereto to the judgment

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lien certificate, and to all secured creditors who have filed

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financing statements as provided in part V of chapter 679 in the

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name of the judgment debtor reflecting a security interest in

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property of the kind to be sold at the execution sale at the

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

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amendment to the financing statement. Such notice shall be made

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

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this section. When levying upon real property, notice of such

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levy and execution sale and affidavit required by s. 56.27(4)

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shall be made to the property owner of record in the same manner

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as notice is made to any judgment debtor pursuant to this section

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and shall be made to each person holding a mortgage or other lien

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against the real property as disclosed by the affidavit. When

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selling real or personal property, the sale date shall not be

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earlier than 30 days after the date of the first advertisement.

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

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Florida Statutes, are amended to read:

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56.27 Executions; payment of money collected.--

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

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

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the levying creditor in the amount of $500 as liquidated

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

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

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the levy is upon personal property, the first priority lienholder

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

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

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in satisfaction of the judgment lien, if provided that the

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

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

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

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

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attorney who originally commenced the action or who made the

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original defense unless the file shows that another attorney has

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been substituted.

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

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than the amount needed to satisfy the provisions of subsection

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

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judgment lienholders whose judgment liens have not lapsed, unless

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the affidavit required by subsection (4) discloses that the

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property is also subject to any recorded mortgage, financing

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statement, tax warrant or other lien, other than a judgment lien,

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that is junior in priority to the levying creditor's judgment

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lien. For the purpose of the sheriff's distribution of the

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surplus to judgment lienholders under this paragraph, priority of

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judgment liens on personal property shall be based on the

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

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55.204(3), or s. 55.208(2), and priority of judgment liens on

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real property shall be based on the effective date of the

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

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

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after all valid judgment liens and execution liens have been

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satisfied under this paragraph, the surplus must be paid to the

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owner of the property sold defendant.

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(b) If the affidavit required by subsection (4) discloses

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that the property is also subject to any recorded mortgage,

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financing statement, tax warrant or other lien, other than a

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judgment lien, that is junior in priority to the levying

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creditor's judgment lien, any surplus from the sale of the

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property shall be paid over to the registry of the court from

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which the execution issued for further proceedings to determine

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the priority in which such surplus shall be distributed among

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judgment lienholders, other lienholders, and the owner of the

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property sold.

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

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

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the levy request to the sheriff, the levying creditor shall

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deliver to the sheriff an affidavit setting forth all of the

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following as to the judgment debtor:

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

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

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or she has reviewed the database or judgment lien records

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

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information contained in the affidavit based on that review is

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

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

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

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

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

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that the information contained in the affidavit, including a

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disclosure of all judgment liens, mortgages, financing

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statements, tax warrants and other liens against the real

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property, based on that review or title search is true and

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correct.;

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

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each judgment lien certificate indexed under the name of the

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judgment debtor as to each judgment creditor; the file number

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

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

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certificate under s. 55.202 or s. 55.204(3). For each judgment

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lien recorded on real property, the information contained in the

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certified copy of recordation of lien pursuant to s. 55.10(1) and

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(2), and for each other lien recorded on real property, the name

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and address of the lienholder as shown in the copy of the

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recorded lien disclosed by the title search.; and

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

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the levying creditor believes in good faith that the total value

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of the property under execution does not exceed the amount of

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outstanding judgments.

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

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741.30, Florida Statutes, is amended to read:

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741.30 Domestic violence; injunction; powers and duties of

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court and clerk; petition; notice and hearing; temporary

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injunction; issuance of injunction; statewide verification

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system; enforcement.--

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

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petition, financial affidavit, Uniform Child Custody Jurisdiction

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

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

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agency of the county where the respondent resides or can be

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

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

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

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transmit a facsimile or electronic copy of an injunction that has

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been certified by the clerk of court, and this facsimile or

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electronic copy may be served in the same manner as a certified

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copy. Upon receiving such a facsimile or electronic copy, the

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sheriff must verify receipt with the sender before attempting to

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serve it upon the respondent. In addition, if the sheriff is in

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possession of an injunction for protection that has been

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certified by the clerk of court, the sheriff may transmit a

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facsimile or electronic copy of that injunction to a law

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

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

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furnishing to the sheriff such information on the respondent's

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physical description and location as is required by the

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department to comply with the verification procedures set forth

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in this section. Notwithstanding any other provision of law to

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

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with the appropriate sheriff, may authorize a law enforcement

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agency within the jurisdiction to effect service. A law

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enforcement agency serving injunctions pursuant to this section

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shall use service and verification procedures consistent with

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those of the sheriff.

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

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

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that an officer from the appropriate law enforcement agency

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accompany the petitioner and assist in placing the petitioner in

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possession of the dwelling or residence, or otherwise assist in

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the execution or service of the injunction. A law enforcement

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officer shall accept a copy of an injunction for protection

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

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from the petitioner and immediately serve it upon a respondent

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who has been located but not yet served.

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

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vacated subsequent to the original service of documents

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

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

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

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

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a party fails or refuses to acknowledge the receipt of a

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

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

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

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

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

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pursuant to this subsection, the clerk shall prepare a written

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

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

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If the respondent has been served previously with the temporary

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

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temporary injunction, any subsequent petition for injunction

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

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

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service by a law enforcement officer.

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

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784.046, Florida Statutes, is amended to read:

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784.046 Action by victim of repeat violence, sexual

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violence, or dating violence for protective injunction; powers

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

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petition; notice and hearing; temporary injunction; issuance;

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statewide verification system; enforcement.--

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

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

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

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

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

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

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sheriff, the clerk of court may transmit a facsimile or

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electronic copy of an injunction that has been certified by the

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clerk of court, and this facsimile or electronic copy may be

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

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such a facsimile or electronic copy, the sheriff must verify

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receipt with the sender before attempting to serve it upon the

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respondent. In addition, if the sheriff is in possession of an

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injunction for protection that has been certified by the clerk of

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court, the sheriff may transmit a facsimile or electronic copy of

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that injunction to a law enforcement officer who shall serve it

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

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shall be responsible for furnishing to the sheriff such

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information on the respondent's physical description and location

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as is required by the department to comply with the verification

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procedures set forth in this section. Notwithstanding any other

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provision of law to the contrary, the chief judge of each

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circuit, in consultation with the appropriate sheriff, may

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authorize a law enforcement agency within the chief judge's

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jurisdiction to effect this type of service and to receive a

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portion of the service fee. No person shall be authorized or

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permitted to serve or execute an injunction issued under this

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section unless the person is a law enforcement officer as defined

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in chapter 943.

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

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

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that an officer from the appropriate law enforcement agency

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accompany the petitioner and assist in the execution or service

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

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of an injunction for protection against repeat violence, sexual

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

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court, from the petitioner and immediately serve it upon a

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respondent who has been located but not yet served.

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

CODING: Words stricken are deletions; words underlined are additions.