HB 209

1
A bill to be entitled
2An act relating to service of process; amending s. 48.021,
3F.S.; allowing criminal witness subpoenas and criminal
4summonses to be served by a special process server
5appointed by the local sheriff or by a certified process
6server; amending s. 56.041, F.S.; providing that all
7unsatisfied executions held by the sheriff that were
8docketed before October 1, 2001, or held after a specified
9period may be returned to the issuing court; amending s.
1056.21, F.S.; requiring the submission of an affidavit
11before levying a judgment upon real property; requiring
12the sheriff to furnish to the judgment debtor or the
13debtor's attorney of record a copy of the notice of sale,
14notice of levy, and affidavit within a specified period
15before execution of a sale or levy; amending s. 56.27,
16F.S.; requiring that priority of liens on real property be
17based on the effective date of the judgment lien;
18requiring a levying creditor to deliver affidavit to the
19sheriff at the time of the levy request setting forth
20certain information and attestations; amending ss. 741.30
21and 784.046, F.S., relating to service of process in cases
22of domestic violence or sexual abuse; authorizing clerks
23of court to transmit facsimile copies of previously
24certified injunctions to sheriffs upon request; requiring
25sheriffs to verify receipt of facsimile copies of
26injunctions with clerks of court before attempting
27service; authorizing law enforcement officers to serve
28facsimile copies of injunctions in the same manner as
29certified copies; providing an effective date.
30
31Be It Enacted by the Legislature of the State of Florida:
32
33     Section 1.  Subsection (1) of section 48.021, Florida
34Statutes, is amended to read:
35     48.021  Process; by whom served.--
36     (1)  All process shall be served by the sheriff of the
37county where the person to be served is found, except that
38initial nonenforceable civil process, criminal witness
39subpoenas, and criminal summonses may be served by a special
40process server appointed by the sheriff as provided for in this
41section or by a certified process server as provided for in ss.
4248.25-48.31. Civil witness subpoenas may be served by any person
43authorized by rules of civil procedure.
44     Section 2.  Subsection (2) of section 56.041, Florida
45Statutes, is amended to read:
46     56.041  Executions; collection and return.--
47     (2)  All unsatisfied executions in the hands of the sheriff
48docketed before October 1, 2001, or 20 years after the date of
49issuance of final judgment upon which the execution was issued
50may be returned, to the court issuing the execution, 20 years
51after the date of issuance of final judgment upon which the
52execution was issued. Upon such return, the clerk of the court
53of issuance shall provide a receipt, to the sheriff submitting
54the return, acknowledging the return of the unsatisfied
55execution.
56     Section 3.  Section 56.21, Florida Statutes, is amended to
57read:
58     56.21  Execution sales; notice.--Notice of all sales under
59execution shall be given by advertisement once each week for 4
60successive weeks in a newspaper published in the county in which
61the sale is to take place. The time of such notice may be
62shortened in the discretion of the court from which the
63execution issued, upon affidavit that the property to be sold is
64subject to decay and will not sell for its full value if held
65until date of sale. On or before the date of the first
66publication or posting of the notice of sale, a copy of the
67notice of sale shall be furnished by the sheriff by certified
68mail to the attorney of record of the judgment debtor, or to the
69judgment debtor at the judgment debtor's last known address if
70the judgment debtor does not have an attorney of record. Such
71copy of the notice of sale shall be mailed even though a default
72judgment was entered. When levying upon real or personal
73property, a notice of such levy and execution sale and a copy of
74the affidavit required by s. 56.27(4) shall be sent by the
75sheriff to the attorneys of record of all judgment creditors, or
76to all judgment creditors who do not have an attorney of record,
77who have acquired a judgment lien as provided in s. 55.10(1) and
78(2), s. 55.202, or s. 55.204(3), and whose liens have not lapsed
79at the time of levy, at the address listed in the judgment lien
80certificate, or, if amended, in any amendment to the judgment
81lien certificate, and to all secured creditors who have filed
82financing statements as provided in part V of chapter 679 in the
83name of the judgment debtor reflecting a security interest in
84property of the kind to be sold at the execution sale at the
85address listed in the financing statement, or, if amended, in
86any amendment to the financing statement. Such notice shall be
87made in the same manner as notice is made to any judgment debtor
88under this section. When levying upon real property, notice of
89such levy and execution sale and affidavit required by s.
9056.27(4) shall be made to the property owner of record in the
91same manner as notice is made to any judgment debtor pursuant to
92this section. When selling real or personal property, the sale
93date shall not be earlier than 30 days after the date of the
94first advertisement.
95     Section 4.  Subsections (1), (2), and (4) of section 56.27,
96Florida Statutes, are amended to read:
97     56.27  Executions; payment of money collected.--
98     (1)  All money received under executions shall be paid, in
99the order prescribed, to the following: the sheriff, for costs;
100the levying creditor in the amount of $500 as liquidated
101expenses; and if the levy is upon real property, the first
102priority lienholder under s. 55.10(1) and (2), s. 55.10; and if
103the levy is upon personal property, the first priority
104lienholder under s. 55.202, s. 55.204(3), or s. 55.208(2), as
105set forth in an affidavit required by subsection (4), or his or
106her attorney, in satisfaction of the judgment lien, if provided
107that the judgment lien has not lapsed at the time of the levy.
108The receipt of the attorney shall be a release of the officer
109paying the money to him or her. If When the name of more than
110one attorney appears in the court file, the money shall be paid
111to the attorney who originally commenced the action or who made
112the original defense unless the file shows that another attorney
113has been substituted.
114     (2)  If When property sold under execution brings more than
115the amount needed to satisfy the provisions of subsection (1),
116the surplus shall be paid in the order of priority to any
117judgment lienholders whose judgment liens have not lapsed.
118Priority of liens on personal property shall be based on the
119effective date of the judgment lien acquired under s. 55.202, s.
12055.204(3), or s. 55.208(2), as set forth in an affidavit
121required under subsection (4). Priority of liens on real
122property shall be based on the effective date of the judgment
123lien acquired under s. 55.10(1) and (2), as set forth in an
124affidavit required under subsection (4). If there is a surplus
125after all valid judgment liens and execution liens have been
126satisfied, the surplus must be paid to the defendant.
127     (4)  Before the date of the first publication or posting of
128the notice of sale provided for under s. 56.21, at the time of
129the levy request to the sheriff, the levying creditor shall
130deliver to the sheriff an affidavit setting forth all of the
131following as to the judgment debtor:
132     (a)  For a personal property levy, an attestation by that
133the levying creditor or the creditor's attorney of record that
134he or she has reviewed the database or judgment lien records
135established in accordance with ss. 55.201-55.209 and that the
136information contained in the affidavit based on that review is
137true and correct. For real property levy in accordance with s.
13855.10(1) and (2), an attestation by the levying creditor or his
139or her attorney of record that he or she has reviewed the
140records of the clerk of court of the county where the property
141is situated, or that he or she has performed a title search, and
142that the information contained in the affidavit based on that
143review or title search is true and correct.;
144     (b)  The information required under s. 55.203(1) and (2)
145for each judgment lien certificate indexed under the name of the
146judgment debtor as to each judgment creditor; the file number
147assigned to the record of the original and, if any, the second
148judgment lien; and the date of filing for each judgment lien
149certificate under s. 55.202 or s. 55.204(3). For real property,
150the information contained in the certified copy of recordation
151of lien pursuant to s. 55.10(1) and (2) for each lien recorded
152on real property.; and
153     (c)  A statement that the levying creditor either does not
154have any other levy in process or, if another levy is in
155process, the levying creditor believes in good faith that the
156total value of the property under execution does not exceed the
157amount of outstanding judgments.
158     Section 5.  Paragraph (a) of subsection (8) of section
159741.30, Florida Statutes, is amended to read:
160     741.30  Domestic violence; injunction; powers and duties of
161court and clerk; petition; notice and hearing; temporary
162injunction; issuance of injunction; statewide verification
163system; enforcement.--
164     (8)(a)1.  The clerk of the court shall furnish a copy of
165the petition, financial affidavit, Uniform Child Custody
166Jurisdiction and Enforcement Act affidavit, if any, notice of
167hearing, and temporary injunction, if any, to the sheriff or a
168law enforcement agency of the county where the respondent
169resides or can be found, who shall serve it upon the respondent
170as soon thereafter as possible on any day of the week and at any
171time of the day or night. When requested by the sheriff, the
172clerk of court may transmit a facsimile copy of an injunction
173that has been certified by the clerk of court, and this
174facsimile copy may be served in the same manner as a certified
175copy. Upon receiving such a facsimile copy, the sheriff must
176verify receipt with the sender before attempting to serve it
177upon the respondent. In addition, if the sheriff is in
178possession of an injunction for protection that has been
179certified by the clerk of court, the sheriff may transmit a
180facsimile copy of that injunction to a law enforcement officer
181who shall serve it in the same manner as a certified copy. The
182clerk of the court shall be responsible for furnishing to the
183sheriff such information on the respondent's physical
184description and location as is required by the department to
185comply with the verification procedures set forth in this
186section. Notwithstanding any other provision of law to the
187contrary, the chief judge of each circuit, in consultation with
188the appropriate sheriff, may authorize a law enforcement agency
189within the jurisdiction to effect service. A law enforcement
190agency serving injunctions pursuant to this section shall use
191service and verification procedures consistent with those of the
192sheriff.
193     2.  When an injunction is issued, if the petitioner
194requests the assistance of a law enforcement agency, the court
195may order that an officer from the appropriate law enforcement
196agency accompany the petitioner and assist in placing the
197petitioner in possession of the dwelling or residence, or
198otherwise assist in the execution or service of the injunction.
199A law enforcement officer shall accept a copy of an injunction
200for protection against domestic violence, certified by the clerk
201of the court, from the petitioner and immediately serve it upon
202a respondent who has been located but not yet served.
203     3.  All orders issued, changed, continued, extended, or
204vacated subsequent to the original service of documents
205enumerated under subparagraph 1., shall be certified by the
206clerk of the court and delivered to the parties at the time of
207the entry of the order.  The parties may acknowledge receipt of
208such order in writing on the face of the original order.  In the
209event a party fails or refuses to acknowledge the receipt of a
210certified copy of an order, the clerk shall note on the original
211order that service was effected.  If delivery at the hearing is
212not possible, the clerk shall mail certified copies of the order
213to the parties at the last known address of each party.  Service
214by mail is complete upon mailing.  When an order is served
215pursuant to this subsection, the clerk shall prepare a written
216certification to be placed in the court file specifying the
217time, date, and method of service and shall notify the sheriff.
218
219If the respondent has been served previously with the temporary
220injunction and has failed to appear at the initial hearing on
221the temporary injunction, any subsequent petition for injunction
222seeking an extension of time may be served on the respondent by
223the clerk of the court by certified mail in lieu of personal
224service by a law enforcement officer.
225     Section 6.  Paragraph (a) of subsection (8) of section
226784.046, Florida Statutes, is amended to read:
227     784.046  Action by victim of repeat violence, sexual
228violence, or dating violence for protective injunction; powers
229and duties of court and clerk of court; filing and form of
230petition; notice and hearing; temporary injunction; issuance;
231statewide verification system; enforcement.--
232     (8)(a)1.  The clerk of the court shall furnish a copy of
233the petition, notice of hearing, and temporary injunction, if
234any, to the sheriff or a law enforcement agency of the county
235where the respondent resides or can be found, who shall serve it
236upon the respondent as soon thereafter as possible on any day of
237the week and at any time of the day or night. When requested by
238the sheriff, the clerk of court may transmit a facsimile copy of
239an injunction that has been certified by the clerk of court, and
240this facsimile copy may be served in the same manner as a
241certified copy. Upon receiving such a facsimile copy, the
242sheriff must verify receipt with the sender before attempting to
243serve it upon the respondent. In addition, if the sheriff is in
244possession of an injunction for protection that has been
245certified by the clerk of court, the sheriff may transmit a
246facsimile copy of that injunction to a law enforcement officer
247who shall serve it in the same manner as a certified copy. The
248clerk of the court shall be responsible for furnishing to the
249sheriff such information on the respondent's physical
250description and location as is required by the department to
251comply with the verification procedures set forth in this
252section. Notwithstanding any other provision of law to the
253contrary, the chief judge of each circuit, in consultation with
254the appropriate sheriff, may authorize a law enforcement agency
255within the chief judge's jurisdiction to effect this type of
256service and to receive a portion of the service fee. No person
257shall be authorized or permitted to serve or execute an
258injunction issued under this section unless the person is a law
259enforcement officer as defined in chapter 943.
260     2.  When an injunction is issued, if the petitioner
261requests the assistance of a law enforcement agency, the court
262may order that an officer from the appropriate law enforcement
263agency accompany the petitioner and assist in the execution or
264service of the injunction. A law enforcement officer shall
265accept a copy of an injunction for protection against repeat
266violence, sexual violence, or dating violence, certified by the
267clerk of the court, from the petitioner and immediately serve it
268upon a respondent who has been located but not yet served.
269     Section 7.  This act shall take effect October 1, 2008.


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