| 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. 56.041, F.S.; providing that all |
| 7 | unsatisfied executions held by the sheriff that were |
| 8 | docketed before October 1, 2001, or held after a specified |
| 9 | period may be returned to the issuing court; amending s. |
| 10 | 56.21, F.S.; requiring the submission of an affidavit |
| 11 | before levying a judgment upon real property; requiring |
| 12 | the sheriff to furnish to the judgment debtor or the |
| 13 | debtor's attorney of record a copy of the notice of sale, |
| 14 | notice of levy, and affidavit within a specified period |
| 15 | before execution of a sale or levy; amending s. 56.27, |
| 16 | F.S.; requiring that priority of liens on real property be |
| 17 | based on the effective date of the judgment lien; |
| 18 | requiring a levying creditor to deliver affidavit to the |
| 19 | sheriff at the time of the levy request setting forth |
| 20 | certain information and attestations; amending ss. 741.30 |
| 21 | and 784.046, F.S., relating to service of process in cases |
| 22 | of domestic violence or sexual abuse; authorizing clerks |
| 23 | of court to transmit facsimile copies of previously |
| 24 | certified injunctions to sheriffs upon request; requiring |
| 25 | sheriffs to verify receipt of facsimile copies of |
| 26 | injunctions with clerks of court before attempting |
| 27 | service; authorizing law enforcement officers to serve |
| 28 | facsimile copies of injunctions in the same manner as |
| 29 | certified copies; providing an effective date. |
| 30 |
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| 31 | Be It Enacted by the Legislature of the State of Florida: |
| 32 |
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| 33 | Section 1. Subsection (1) of section 48.021, Florida |
| 34 | Statutes, is amended to read: |
| 35 | 48.021 Process; by whom served.-- |
| 36 | (1) All process shall be served by the sheriff of the |
| 37 | county where the person to be served is found, except that |
| 38 | initial nonenforceable civil process, criminal witness |
| 39 | subpoenas, and criminal summonses may be served by a special |
| 40 | process server appointed by the sheriff as provided for in this |
| 41 | section or by a certified process server as provided for in ss. |
| 42 | 48.25-48.31. Civil witness subpoenas may be served by any person |
| 43 | authorized by rules of civil procedure. |
| 44 | Section 2. Subsection (2) of section 56.041, Florida |
| 45 | Statutes, is amended to read: |
| 46 | 56.041 Executions; collection and return.-- |
| 47 | (2) All unsatisfied executions in the hands of the sheriff |
| 48 | docketed before October 1, 2001, or 20 years after the date of |
| 49 | issuance of final judgment upon which the execution was issued |
| 50 | may be returned, to the court issuing the execution, 20 years |
| 51 | after the date of issuance of final judgment upon which the |
| 52 | execution was issued. Upon such return, the clerk of the court |
| 53 | of issuance shall provide a receipt, to the sheriff submitting |
| 54 | the return, acknowledging the return of the unsatisfied |
| 55 | execution. |
| 56 | Section 3. Section 56.21, Florida Statutes, is amended to |
| 57 | read: |
| 58 | 56.21 Execution sales; notice.--Notice of all sales under |
| 59 | execution shall be given by advertisement once each week for 4 |
| 60 | successive weeks in a newspaper published in the county in which |
| 61 | the sale is to take place. The time of such notice may be |
| 62 | shortened in the discretion of the court from which the |
| 63 | execution issued, upon affidavit that the property to be sold is |
| 64 | subject to decay and will not sell for its full value if held |
| 65 | until date of sale. On or before the date of the first |
| 66 | publication or posting of the notice of sale, a copy of the |
| 67 | notice of sale shall be furnished by the sheriff by certified |
| 68 | mail to the attorney of record of the judgment debtor, or to the |
| 69 | judgment debtor at the judgment debtor's last known address if |
| 70 | the judgment debtor does not have an attorney of record. Such |
| 71 | copy of the notice of sale shall be mailed even though a default |
| 72 | judgment was entered. When levying upon real or personal |
| 73 | property, a notice of such levy and execution sale and a copy of |
| 74 | the affidavit required by s. 56.27(4) shall be sent by the |
| 75 | sheriff to the attorneys of record of all judgment creditors, or |
| 76 | to all judgment creditors who do not have an attorney of record, |
| 77 | who 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 |
| 79 | at the time of levy, at the address listed in the judgment lien |
| 80 | certificate, or, if amended, in any amendment to the judgment |
| 81 | lien certificate, and to all secured creditors who have filed |
| 82 | financing statements as provided in part V of chapter 679 in the |
| 83 | name of the judgment debtor reflecting a security interest in |
| 84 | property of the kind to be sold at the execution sale at the |
| 85 | address listed in the financing statement, or, if amended, in |
| 86 | any amendment to the financing statement. Such notice shall be |
| 87 | made in the same manner as notice is made to any judgment debtor |
| 88 | under this section. When levying upon real property, notice of |
| 89 | such levy and execution sale and affidavit required by s. |
| 90 | 56.27(4) shall be made to the property owner of record in the |
| 91 | same manner as notice is made to any judgment debtor pursuant to |
| 92 | this section. When selling real or personal property, the sale |
| 93 | date shall not be earlier than 30 days after the date of the |
| 94 | first advertisement. |
| 95 | Section 4. Subsections (1), (2), and (4) of section 56.27, |
| 96 | Florida Statutes, are amended to read: |
| 97 | 56.27 Executions; payment of money collected.-- |
| 98 | (1) All money received under executions shall be paid, in |
| 99 | the order prescribed, to the following: the sheriff, for costs; |
| 100 | the levying creditor in the amount of $500 as liquidated |
| 101 | expenses; and if the levy is upon real property, the first |
| 102 | priority lienholder under s. 55.10(1) and (2), s. 55.10; and if |
| 103 | the levy is upon personal property, the first priority |
| 104 | lienholder under s. 55.202, s. 55.204(3), or s. 55.208(2), as |
| 105 | set forth in an affidavit required by subsection (4), or his or |
| 106 | her attorney, in satisfaction of the judgment lien, if provided |
| 107 | that the judgment lien has not lapsed at the time of the levy. |
| 108 | The receipt of the attorney shall be a release of the officer |
| 109 | paying the money to him or her. If When the name of more than |
| 110 | one attorney appears in the court file, the money shall be paid |
| 111 | to the attorney who originally commenced the action or who made |
| 112 | the original defense unless the file shows that another attorney |
| 113 | has been substituted. |
| 114 | (2) If When property sold under execution brings more than |
| 115 | the amount needed to satisfy the provisions of subsection (1), |
| 116 | the surplus shall be paid in the order of priority to any |
| 117 | judgment lienholders whose judgment liens have not lapsed. |
| 118 | Priority of liens on personal property shall be based on the |
| 119 | effective date of the judgment lien acquired under s. 55.202, s. |
| 120 | 55.204(3), or s. 55.208(2), as set forth in an affidavit |
| 121 | required under subsection (4). Priority of liens on real |
| 122 | property shall be based on the effective date of the judgment |
| 123 | lien acquired under s. 55.10(1) and (2), as set forth in an |
| 124 | affidavit required under subsection (4). If there is a surplus |
| 125 | after all valid judgment liens and execution liens have been |
| 126 | satisfied, the surplus must be paid to the defendant. |
| 127 | (4) Before the date of the first publication or posting of |
| 128 | the notice of sale provided for under s. 56.21, at the time of |
| 129 | the levy request to the sheriff, the levying creditor shall |
| 130 | deliver to the sheriff an affidavit setting forth all of the |
| 131 | following as to the judgment debtor: |
| 132 | (a) For a personal property levy, an attestation by that |
| 133 | the levying creditor or the creditor's attorney of record that |
| 134 | he or she has reviewed the database or judgment lien records |
| 135 | established in accordance with ss. 55.201-55.209 and that the |
| 136 | information contained in the affidavit based on that review is |
| 137 | true and correct. For real property levy in accordance with s. |
| 138 | 55.10(1) and (2), an attestation by the levying creditor or his |
| 139 | or her attorney of record that he or she has reviewed the |
| 140 | records of the clerk of court of the county where the property |
| 141 | is situated, or that he or she has performed a title search, and |
| 142 | that the information contained in the affidavit based on that |
| 143 | review or title search is true and correct.; |
| 144 | (b) The information required under s. 55.203(1) and (2) |
| 145 | for each judgment lien certificate indexed under the name of the |
| 146 | judgment debtor as to each judgment creditor; the file number |
| 147 | assigned to the record of the original and, if any, the second |
| 148 | judgment lien; and the date of filing for each judgment lien |
| 149 | certificate under s. 55.202 or s. 55.204(3). For real property, |
| 150 | the information contained in the certified copy of recordation |
| 151 | of lien pursuant to s. 55.10(1) and (2) for each lien recorded |
| 152 | on real property.; and |
| 153 | (c) A statement that the levying creditor either does not |
| 154 | have any other levy in process or, if another levy is in |
| 155 | process, the levying creditor believes in good faith that the |
| 156 | total value of the property under execution does not exceed the |
| 157 | amount of outstanding judgments. |
| 158 | Section 5. Paragraph (a) of subsection (8) of section |
| 159 | 741.30, Florida Statutes, is amended to read: |
| 160 | 741.30 Domestic violence; injunction; powers and duties of |
| 161 | court and clerk; petition; notice and hearing; temporary |
| 162 | injunction; issuance of injunction; statewide verification |
| 163 | system; enforcement.-- |
| 164 | (8)(a)1. The clerk of the court shall furnish a copy of |
| 165 | the petition, financial affidavit, Uniform Child Custody |
| 166 | Jurisdiction and Enforcement Act affidavit, if any, notice of |
| 167 | hearing, and temporary injunction, if any, to the sheriff or a |
| 168 | law enforcement agency of the county where the respondent |
| 169 | resides or can be found, who shall serve it upon the respondent |
| 170 | as soon thereafter as possible on any day of the week and at any |
| 171 | time of the day or night. When requested by the sheriff, the |
| 172 | clerk of court may transmit a facsimile copy of an injunction |
| 173 | that has been certified by the clerk of court, and this |
| 174 | facsimile copy may be served in the same manner as a certified |
| 175 | copy. Upon receiving such a facsimile copy, the sheriff must |
| 176 | verify receipt with the sender before attempting to serve it |
| 177 | upon the respondent. In addition, if the sheriff is in |
| 178 | possession of an injunction for protection that has been |
| 179 | certified by the clerk of court, the sheriff may transmit a |
| 180 | facsimile copy of that injunction to a law enforcement officer |
| 181 | who shall serve it in the same manner as a certified copy. The |
| 182 | clerk of the court shall be responsible for furnishing to the |
| 183 | sheriff such information on the respondent's physical |
| 184 | description and location as is required by the department to |
| 185 | comply with the verification procedures set forth in this |
| 186 | section. Notwithstanding any other provision of law to the |
| 187 | contrary, the chief judge of each circuit, in consultation with |
| 188 | the appropriate sheriff, may authorize a law enforcement agency |
| 189 | within the jurisdiction to effect service. A law enforcement |
| 190 | agency serving injunctions pursuant to this section shall use |
| 191 | service and verification procedures consistent with those of the |
| 192 | sheriff. |
| 193 | 2. When an injunction is issued, if the petitioner |
| 194 | requests the assistance of a law enforcement agency, the court |
| 195 | may order that an officer from the appropriate law enforcement |
| 196 | agency accompany the petitioner and assist in placing the |
| 197 | petitioner in possession of the dwelling or residence, or |
| 198 | otherwise assist in the execution or service of the injunction. |
| 199 | A law enforcement officer shall accept a copy of an injunction |
| 200 | for protection against domestic violence, certified by the clerk |
| 201 | of the court, from the petitioner and immediately serve it upon |
| 202 | a respondent who has been located but not yet served. |
| 203 | 3. All orders issued, changed, continued, extended, or |
| 204 | vacated subsequent to the original service of documents |
| 205 | enumerated under subparagraph 1., shall be certified by the |
| 206 | clerk of the court and delivered to the parties at the time of |
| 207 | the entry of the order. The parties may acknowledge receipt of |
| 208 | such order in writing on the face of the original order. In the |
| 209 | event a party fails or refuses to acknowledge the receipt of a |
| 210 | certified copy of an order, the clerk shall note on the original |
| 211 | order that service was effected. If delivery at the hearing is |
| 212 | not possible, the clerk shall mail certified copies of the order |
| 213 | to the parties at the last known address of each party. Service |
| 214 | by mail is complete upon mailing. When an order is served |
| 215 | pursuant to this subsection, the clerk shall prepare a written |
| 216 | certification to be placed in the court file specifying the |
| 217 | time, date, and method of service and shall notify the sheriff. |
| 218 |
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| 219 | If the respondent has been served previously with the temporary |
| 220 | injunction and has failed to appear at the initial hearing on |
| 221 | the temporary injunction, any subsequent petition for injunction |
| 222 | seeking an extension of time may be served on the respondent by |
| 223 | the clerk of the court by certified mail in lieu of personal |
| 224 | service by a law enforcement officer. |
| 225 | Section 6. Paragraph (a) of subsection (8) of section |
| 226 | 784.046, Florida Statutes, is amended to read: |
| 227 | 784.046 Action by victim of repeat violence, sexual |
| 228 | violence, or dating violence for protective injunction; powers |
| 229 | and duties of court and clerk of court; filing and form of |
| 230 | petition; notice and hearing; temporary injunction; issuance; |
| 231 | statewide verification system; enforcement.-- |
| 232 | (8)(a)1. The clerk of the court shall furnish a copy of |
| 233 | the petition, notice of hearing, and temporary injunction, if |
| 234 | any, to the sheriff or a law enforcement agency of the county |
| 235 | where the respondent resides or can be found, who shall serve it |
| 236 | upon the respondent as soon thereafter as possible on any day of |
| 237 | the week and at any time of the day or night. When requested by |
| 238 | the sheriff, the clerk of court may transmit a facsimile copy of |
| 239 | an injunction that has been certified by the clerk of court, and |
| 240 | this facsimile copy may be served in the same manner as a |
| 241 | certified copy. Upon receiving such a facsimile copy, the |
| 242 | sheriff must verify receipt with the sender before attempting to |
| 243 | serve it upon the respondent. In addition, if the sheriff is in |
| 244 | possession of an injunction for protection that has been |
| 245 | certified by the clerk of court, the sheriff may transmit a |
| 246 | facsimile copy of that injunction to a law enforcement officer |
| 247 | who shall serve it in the same manner as a certified copy. The |
| 248 | clerk of the court shall be responsible for furnishing to the |
| 249 | sheriff such information on the respondent's physical |
| 250 | description and location as is required by the department to |
| 251 | comply with the verification procedures set forth in this |
| 252 | section. Notwithstanding any other provision of law to the |
| 253 | contrary, the chief judge of each circuit, in consultation with |
| 254 | the appropriate sheriff, may authorize a law enforcement agency |
| 255 | within the chief judge's jurisdiction to effect this type of |
| 256 | service and to receive a portion of the service fee. No person |
| 257 | shall be authorized or permitted to serve or execute an |
| 258 | injunction issued under this section unless the person is a law |
| 259 | enforcement officer as defined in chapter 943. |
| 260 | 2. When an injunction is issued, if the petitioner |
| 261 | requests the assistance of a law enforcement agency, the court |
| 262 | may order that an officer from the appropriate law enforcement |
| 263 | agency accompany the petitioner and assist in the execution or |
| 264 | service of the injunction. A law enforcement officer shall |
| 265 | accept a copy of an injunction for protection against repeat |
| 266 | violence, sexual violence, or dating violence, certified by the |
| 267 | clerk of the court, from the petitioner and immediately serve it |
| 268 | upon a respondent who has been located but not yet served. |
| 269 | Section 7. This act shall take effect October 1, 2008. |