CS for SB 300 First Engrossed

2008300e1

A bill to be entitled

An act relating to service of process; amending s. 30.231,

F.S.; increasing the fees charged by the sheriff in civil

cases for service of process; exempting the State of

Florida and its agencies from increased fees; deleting a

prohibition on additional fees for certain documents;

amending s. 48.021, F.S.; providing that criminal witness

subpoenas and criminal summonses may be served by a

special process server appointed by the local sheriff or

by a certified process server; amending s. 48.27, F.S., to

conform; providing for selection of authorized certified

process servers to serve such subpoenas and summonses;

amending s. 56.041, F.S.; providing that all unsatisfied

executions in the possession of the sheriff docketed

before October 1, 2001, 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 with 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; requiring certain information to be

contained in the certified copy of recordation of lien;

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 copies

of previously certified injunctions to sheriffs upon

request; requiring sheriffs to verify receipt of facsimile

copies of injunctions with clerks of court before

attempting service; authorizing law enforcement officers

to serve facsimile 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. Subsections (1) and (4) of section 30.231,

Florida Statutes, are amended to read:

30.231 Sheriffs' fees for service of summons, subpoenas,

and executions.--

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

cases shall charge fixed, nonrefundable fees for docketing and

service of process, according to the following schedule:

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

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

summons or writ is issued at the same time out of the same cause

of action to be served upon one person or defendant at the same

time, in which case the sheriff shall be entitled to one fee.

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

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

paragraph (a).

served.

(d) Executions:

1. Forty Twenty dollars for docketing and indexing each

writ of execution, regardless of the number of persons involved.

2. Fifty dollars for each levy.

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

portion of the property listed or unlisted in the instructions

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

satisfied by the defendant in lieu of seizure. Seizure requires

that the sheriff take actual possession, if practicable, or,

alternatively, constructive possession of the property by order

of the court.

b. When the instructions are for levy upon real property, a

levy fee is required for each parcel described in the

instructions.

c. When the instructions are for levy based upon personal

property, one fee is allowed, unless the property is seized at

different locations, conditional upon all of the items being

advertised collectively and the sale being held at a single

location. However, if the property seized cannot be sold at one

location during the same sale as advertised, but requires

separate sales at different locations, the sheriff is then

authorized to impose a levy fee for the property and sale at each

location.

3. Forty Twenty dollars for advertisement of sale under

process.

4. Forty Twenty dollars for each sale under process.

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

satisfaction of judgment.

Fees under this subsection chargeable to the State of Florida or

its agencies shall be those fees that were effective under this

subsection on June 30, 2008.

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

and (d) shall be nonrefundable and shall be earned when each

original request or service of process is made, and no additional

fees shall be required for alias and pluries documents when

service was not effected on the original document in that county

by that sheriff.

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

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Statutes, is amended to read:

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48.021 Process; by whom served.--

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

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

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nonenforceable civil process, criminal witness subpoenas, and

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criminal summonses may be served by a special process server

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

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

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Civil witness subpoenas may be served by any person authorized by

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rules of civil procedure.

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Section 3. Subsection (2) of section 48.27, Florida

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Statutes, is amended to read:

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48.27 Certified process servers.--

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

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authorizes him or her to serve initial nonenforceable civil

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process on a person found within the circuit where the process

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server is certified when a civil action has been filed against

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

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

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

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be served one or more certified process servers to serve initial

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nonenforceable civil process.

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

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him or her to serve criminal witness subpoenas and criminal

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summonses on a person found within the circuit where the process

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server is certified. The state in any proceeding or investigation

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

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

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

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serve the subpoena or summons.

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Section 4. Subsection (2) of section 56.041, Florida

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Statutes, is amended to read:

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56.041 Executions; collection and return.--

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

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

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issuance of final judgment upon which the execution was issued

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

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after the date of issuance of final judgment upon which the

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

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issuance shall provide a receipt, to the sheriff submitting the

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return, acknowledging the return of the unsatisfied execution.

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Section 5. Section 56.21, Florida Statutes, is amended to

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read:

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

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execution shall be given by advertisement once each week for 4

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successive weeks in a newspaper published in the county in which

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

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shortened in the discretion of the court from which the execution

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

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

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

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

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furnished by the sheriff by certified mail to the attorney of

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

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

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

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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

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section, and shall be made to each other person holding a

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mortgage or other lien against the real property as disclosed by

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the affidavit. When selling real or personal property, the sale

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date shall not be earlier than 30 days after the date of the

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first advertisement.

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Section 6. 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

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lien, that is junior in priority to the levying creditor's

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

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the surplus to judgment lienholders under this paragraph,

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priority of judgment liens on personal property shall be based on

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

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s. 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 7. 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 copy of an injunction that has been

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

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

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facsimile copy, the sheriff must verify receipt with the sender

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before attempting to serve it upon the respondent. In addition,

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if the sheriff is in possession of an injunction for protection

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

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transmit a facsimile copy of that injunction to a law enforcement

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

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

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to the sheriff such information on the respondent's physical

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description and location as is required by the department to

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comply with the verification procedures set forth in this

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section. Notwithstanding any other provision of law to the

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

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the appropriate sheriff, may authorize a law enforcement agency

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within the jurisdiction to effect service. A law enforcement

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agency serving injunctions pursuant to this section shall use

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service and verification procedures consistent with those of the

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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 8. 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 copy of an

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

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

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

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verify receipt with the sender before attempting to serve it upon

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

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an injunction for protection that has been certified by the clerk

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

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

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

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responsible for furnishing to the sheriff such information on the

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respondent's physical description and location as is required by

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the department to comply with the verification procedures set

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forth in this section. Notwithstanding any other provision of law

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to 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 chief judge's jurisdiction to effect this type

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

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shall be authorized or permitted to serve or execute an

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injunction issued under this section unless the person is a law

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enforcement officer as defined 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 9. This act shall take effect July 1, 2008.

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