| 1 | A bill to be entitled |
| 2 | An act relating to service of process; amending s. 30.231, |
| 3 | F.S.; increasing the fees charged by the sheriff in civil |
| 4 | cases for service of process; exempting the State of |
| 5 | Florida and its agencies from increased fees; authorizing |
| 6 | an additional fee for certain documents; exempting the |
| 7 | State of Florida and its agencies from paying a specified |
| 8 | portion of such additional fee; amending s. 48.021, F.S.; |
| 9 | providing that criminal witness subpoenas and criminal |
| 10 | summonses may be served by a special process server |
| 11 | appointed by the local sheriff or by a certified process |
| 12 | server; amending s. 48.27, F.S.; providing for selection |
| 13 | of authorized certified process servers to serve criminal |
| 14 | witness subpoenas and criminal summonses; amending s. |
| 15 | 56.041, F.S.; providing that all unsatisfied executions in |
| 16 | the possession of the sheriff docketed before October 1, |
| 17 | 2001, may be returned to the issuing court; amending s. |
| 18 | 56.21, F.S.; requiring the submission of an affidavit |
| 19 | before levying a judgment upon real property; requiring |
| 20 | the sheriff to furnish to the judgment debtor or the |
| 21 | debtor's attorney of record a copy of the notice of sale, |
| 22 | notice of levy, and affidavit within a specified period |
| 23 | before execution of a sale or levy; amending s. 56.27, |
| 24 | F.S.; requiring that priority of liens on real property be |
| 25 | based on the effective date of the judgment lien for a |
| 26 | specified purpose; requiring a levying creditor to deliver |
| 27 | to the sheriff at the time of the levy request an |
| 28 | affidavit setting forth certain information and |
| 29 | attestations; amending ss. 741.30 and 784.046, F.S., |
| 30 | relating to service of process in cases of domestic |
| 31 | violence or sexual abuse; authorizing clerks of court to |
| 32 | transmit facsimile copies of previously certified |
| 33 | injunctions to sheriffs upon request; requiring sheriffs |
| 34 | to verify receipt of facsimile copies of injunctions with |
| 35 | clerks of court before attempting service; authorizing law |
| 36 | enforcement officers to serve facsimile copies of |
| 37 | injunctions in the same manner as certified copies; |
| 38 | providing an effective date. |
| 39 |
|
| 40 | Be It Enacted by the Legislature of the State of Florida: |
| 41 |
|
| 42 | Section 1. Subsections (1) and (4) of section 30.231, |
| 43 | Florida Statutes, are amended to read: |
| 44 | 30.231 Sheriffs' fees for service of summons, subpoenas, |
| 45 | and executions.-- |
| 46 | (1) The sheriffs of all counties of the state in civil |
| 47 | cases shall charge fixed, nonrefundable fees for docketing and |
| 48 | service of process, according to the following schedule: |
| 49 | (a) All summons or writs except executions: $40 $20 for |
| 50 | each summons or writ to be served, except when more than one |
| 51 | summons or writ is issued at the same time out of the same cause |
| 52 | of action to be served upon one person or defendant at the same |
| 53 | time, in which case the sheriff shall be entitled to one fee. |
| 54 | (b) All writs except executions requiring a levy or |
| 55 | seizure of property: $50 in addition to the $40 $20 fee as |
| 56 | stated in paragraph (a). |
| 57 | (c) Witness subpoenas: $40 $20 for each witness to be |
| 58 | served. |
| 59 | (d) Executions: |
| 60 | 1. Forty Twenty dollars for docketing and indexing each |
| 61 | writ of execution, regardless of the number of persons involved. |
| 62 | 2. Fifty dollars for each levy. |
| 63 | a. A levy is considered made when any property or any |
| 64 | portion of the property listed or unlisted in the instructions |
| 65 | for levy is seized, or upon demand of the sheriff the writ is |
| 66 | satisfied by the defendant in lieu of seizure. Seizure requires |
| 67 | that the sheriff take actual possession, if practicable, or, |
| 68 | alternatively, constructive possession of the property by order |
| 69 | of the court. |
| 70 | b. When the instructions are for levy upon real property, |
| 71 | a levy fee is required for each parcel described in the |
| 72 | instructions. |
| 73 | c. When the instructions are for levy based upon personal |
| 74 | property, one fee is allowed, unless the property is seized at |
| 75 | different locations, conditional upon all of the items being |
| 76 | advertised collectively and the sale being held at a single |
| 77 | location. However, if the property seized cannot be sold at one |
| 78 | location during the same sale as advertised, but requires |
| 79 | separate sales at different locations, the sheriff is then |
| 80 | authorized to impose a levy fee for the property and sale at |
| 81 | each location. |
| 82 | 3. Forty Twenty dollars for advertisement of sale under |
| 83 | process. |
| 84 | 4. Forty Twenty dollars for each sale under process. |
| 85 | 5. Forty Twenty dollars for each deed, bill of sale, or |
| 86 | satisfaction of judgment. |
| 87 |
|
| 88 | Fees under this subsection chargeable to the State of Florida or |
| 89 | its agencies shall be those fees that were effective under this |
| 90 | subsection on June 30, 2009. |
| 91 | (4) All fees collected under paragraphs (1)(a), (b), (c), |
| 92 | and (d) shall be nonrefundable and shall be earned when each |
| 93 | original request or service of process is made. An additional |
| 94 | fee of $40 may be charged, and no additional fees shall be |
| 95 | required for alias and pluries documents when service was not |
| 96 | effected on the original document in that county by that |
| 97 | sheriff. Such additional fee may only be charged once, |
| 98 | regardless of the number of alias and pluries documents. The |
| 99 | State of Florida and its agencies are exempt from paying that |
| 100 | portion of such additional fee that is not payable from nonstate |
| 101 | funds. |
| 102 | Section 2. Subsection (1) of section 48.021, Florida |
| 103 | Statutes, is amended to read: |
| 104 | 48.021 Process; by whom served.-- |
| 105 | (1) All process shall be served by the sheriff of the |
| 106 | county where the person to be served is found, except initial |
| 107 | nonenforceable civil process, criminal witness subpoenas, and |
| 108 | criminal summonses may be served by a special process server |
| 109 | appointed by the sheriff as provided for in this section or by a |
| 110 | certified process server as provided for in ss. 48.25-48.31. |
| 111 | Civil witness subpoenas may be served by any person authorized |
| 112 | by rules of civil procedure. |
| 113 | Section 3. Subsection (2) of section 48.27, Florida |
| 114 | Statutes, is amended to read: |
| 115 | 48.27 Certified process servers.-- |
| 116 | (2)(a) The addition of a person's name to the list |
| 117 | authorizes him or her to serve initial nonenforceable civil |
| 118 | process on a person found within the circuit where the process |
| 119 | server is certified when a civil action has been filed against |
| 120 | such person in the circuit court or in a county court in the |
| 121 | state. Upon filing an action in circuit or county court, a |
| 122 | person may select from the list for the circuit where the |
| 123 | process is to be served one or more certified process servers to |
| 124 | serve initial nonenforceable civil process. |
| 125 | (b) The addition of a person's name to the list authorizes |
| 126 | him or her to serve criminal witness subpoenas and criminal |
| 127 | summonses on a person found within the circuit where the process |
| 128 | server is certified. The state in any proceeding or |
| 129 | investigation by a grand jury or any party in a criminal action, |
| 130 | prosecution, or proceeding may select from the list for the |
| 131 | circuit where the process is to be served one or more certified |
| 132 | process servers to serve the subpoena or summons. |
| 133 | Section 4. Subsection (2) of section 56.041, Florida |
| 134 | Statutes, is amended to read: |
| 135 | 56.041 Executions; collection and return.-- |
| 136 | (2) All unsatisfied executions in the hands of the sheriff |
| 137 | docketed before October 1, 2001, or 20 years after the date of |
| 138 | issuance of final judgment upon which the execution was issued |
| 139 | may be returned, to the court issuing the execution, 20 years |
| 140 | after the date of issuance of final judgment upon which the |
| 141 | execution was issued. Upon such return, the clerk of the court |
| 142 | of issuance shall provide a receipt, to the sheriff submitting |
| 143 | the return, acknowledging the return of the unsatisfied |
| 144 | execution. |
| 145 | Section 5. Section 56.21, Florida Statutes, is amended to |
| 146 | read: |
| 147 | 56.21 Execution sales; notice.--Notice of all sales under |
| 148 | execution shall be given by advertisement once each week for 4 |
| 149 | successive weeks in a newspaper published in the county in which |
| 150 | the sale is to take place. The time of such notice may be |
| 151 | shortened in the discretion of the court from which the |
| 152 | execution issued, upon affidavit that the property to be sold is |
| 153 | subject to decay and will not sell for its full value if held |
| 154 | until date of sale. On or before the date of the first |
| 155 | publication or posting of the notice of sale, a copy of the |
| 156 | notice of sale shall be furnished by the sheriff by certified |
| 157 | mail to the attorney of record of the judgment debtor, or to the |
| 158 | judgment debtor at the judgment debtor's last known address if |
| 159 | the judgment debtor does not have an attorney of record. Such |
| 160 | copy of the notice of sale shall be mailed even though a default |
| 161 | judgment was entered. When levying upon real or personal |
| 162 | property, a notice of such levy and execution sale and a copy of |
| 163 | the affidavit required by s. 56.27(4) shall be sent by the |
| 164 | sheriff to the attorneys of record of all judgment creditors and |
| 165 | other lienholders and, or to all judgment creditors and other |
| 166 | lienholders who do not have an attorney of record, who have |
| 167 | acquired a judgment lien as provided in s. 55.10(1) and (2), s. |
| 168 | 55.202, or s. 55.204(3), or s. 695.01, and whose liens have not |
| 169 | lapsed at the time of levy, at the address listed in the |
| 170 | judgment lien certificate or other recorded lien, or, if |
| 171 | amended, in any amendment thereto to the judgment lien |
| 172 | certificate, and to all secured creditors who have filed |
| 173 | financing statements as provided in part V of chapter 679 in the |
| 174 | name of the judgment debtor reflecting a security interest in |
| 175 | property of the kind to be sold at the execution sale at the |
| 176 | address listed in the financing statement, or, if amended, in |
| 177 | any amendment to the financing statement. Such notice shall be |
| 178 | made in the same manner as notice is made to any judgment debtor |
| 179 | under this section. When levying upon real property, notice of |
| 180 | such levy and execution sale and affidavit required by s. |
| 181 | 56.27(4) shall be made to the property owner of record in the |
| 182 | same manner as notice is made to any judgment debtor pursuant to |
| 183 | this section and shall be made to each other person holding a |
| 184 | mortgage or other lien against the real property as disclosed by |
| 185 | the affidavit. When selling real or personal property, the sale |
| 186 | date shall not be earlier than 30 days after the date of the |
| 187 | first advertisement. |
| 188 | Section 6. Subsections (1), (2), and (4) of section 56.27, |
| 189 | Florida Statutes, are amended to read: |
| 190 | 56.27 Executions; payment of money collected.-- |
| 191 | (1) All money received under executions shall be paid, in |
| 192 | the order prescribed, to the following: the sheriff, for costs; |
| 193 | the levying creditor in the amount of $500 as liquidated |
| 194 | expenses; and if the levy is upon real property, the first |
| 195 | priority lienholder under s. 55.10(1) and (2), s. 55.10; and if |
| 196 | the levy is upon personal property, the first priority |
| 197 | lienholder under s. 55.202, s. 55.204(3), or s. 55.208(2), as |
| 198 | set forth in an affidavit required by subsection (4), or his or |
| 199 | her attorney, in satisfaction of the judgment lien, if provided |
| 200 | that the judgment lien has not lapsed at the time of the levy. |
| 201 | The receipt of the attorney shall be a release of the officer |
| 202 | paying the money to him or her. If When the name of more than |
| 203 | one attorney appears in the court file, the money shall be paid |
| 204 | to the attorney who originally commenced the action or who made |
| 205 | the original defense unless the file shows that another attorney |
| 206 | has been substituted. |
| 207 | (2)(a) If When property sold under execution brings more |
| 208 | than the amount needed to satisfy the provisions of subsection |
| 209 | (1), the surplus shall be paid in the order of priority to any |
| 210 | judgment lienholders whose judgment liens have not lapsed, |
| 211 | unless the affidavit required by subsection (4) discloses that |
| 212 | the property is also subject to any recorded mortgage, financing |
| 213 | statement, tax warrant, or other lien, other than a judgment |
| 214 | lien, that is junior in priority to the levying creditor's |
| 215 | judgment lien. For the purpose of the sheriff's distribution of |
| 216 | the surplus to judgment lienholders under this paragraph, |
| 217 | priority of judgment liens on personal property shall be based |
| 218 | on the effective date of the judgment lien acquired under s. |
| 219 | 55.202, s. 55.204(3), or s. 55.208(2), and priority of judgment |
| 220 | liens on real property shall be based on the effective date of |
| 221 | the judgment lien acquired under s. 55.10(1) and (2), as set |
| 222 | forth in an affidavit required under subsection (4). If there is |
| 223 | a surplus after all valid judgment liens and execution liens |
| 224 | have been satisfied under this paragraph, the surplus must be |
| 225 | paid to the owner of the property sold defendant. |
| 226 | (b) If the affidavit required by subsection (4) discloses |
| 227 | that the property is also subject to any recorded mortgage, |
| 228 | financing statement, tax warrant, or other lien, other than a |
| 229 | judgment lien, that is junior in priority to the levying |
| 230 | creditor's judgment lien, any surplus from the sale of the |
| 231 | property shall be paid over to the registry of the court from |
| 232 | which the execution issued for further proceedings to determine |
| 233 | the priority in which such surplus shall be distributed among |
| 234 | judgment lienholders, other lienholders, and the owner of the |
| 235 | property sold. |
| 236 | (4) Before the date of the first publication or posting of |
| 237 | the notice of sale provided for under s. 56.21, at the time of |
| 238 | the levy request to the sheriff, the levying creditor shall |
| 239 | deliver to the sheriff an affidavit setting forth all of the |
| 240 | following as to the judgment debtor: |
| 241 | (a) For a personal property levy, an attestation by that |
| 242 | the levying creditor or the creditor's attorney of record that |
| 243 | he or she has reviewed the database or judgment lien records |
| 244 | established in accordance with ss. 55.201-55.209 and that the |
| 245 | information contained in the affidavit based on that review is |
| 246 | true and correct. For a real property levy in accordance with s. |
| 247 | 55.10(1) and (2), an attestation by the levying creditor or his |
| 248 | or her attorney of record that he or she has performed or |
| 249 | reviewed a title search of the records of the clerk of court of |
| 250 | the county where the property is situated, and that the |
| 251 | information contained in the affidavit, including a disclosure |
| 252 | of all judgment liens, mortgages, financing statements, tax |
| 253 | warrants, and other liens against the real property, based on |
| 254 | that title search is true and correct.; |
| 255 | (b) The information required under s. 55.203(1) and (2) |
| 256 | for each judgment lien certificate indexed under the name of the |
| 257 | judgment debtor as to each judgment creditor; the file number |
| 258 | assigned to the record of the original and, if any, the second |
| 259 | judgment lien; and the date of filing for each judgment lien |
| 260 | certificate under s. 55.202 or s. 55.204(3). For each judgment |
| 261 | lien recorded on real property, the information contained in the |
| 262 | certified copy of recordation of lien pursuant to s. 55.10(1) |
| 263 | and (2), and for each other lien recorded on real property, the |
| 264 | name and address of the lienholder as shown in the copy of the |
| 265 | recorded lien disclosed by the title search.; and |
| 266 | (c) A statement that the levying creditor either does not |
| 267 | have any other levy in process or, if another levy is in |
| 268 | process, the levying creditor believes in good faith that the |
| 269 | total value of the property under execution does not exceed the |
| 270 | amount of outstanding judgments. |
| 271 | Section 7. Paragraph (a) of subsection (8) of section |
| 272 | 741.30, Florida Statutes, is amended to read: |
| 273 | 741.30 Domestic violence; injunction; powers and duties of |
| 274 | court and clerk; petition; notice and hearing; temporary |
| 275 | injunction; issuance of injunction; statewide verification |
| 276 | system; enforcement.-- |
| 277 | (8)(a)1. The clerk of the court shall furnish a copy of |
| 278 | the petition, financial affidavit, Uniform Child Custody |
| 279 | Jurisdiction and Enforcement Act affidavit, if any, notice of |
| 280 | hearing, and temporary injunction, if any, to the sheriff or a |
| 281 | law enforcement agency of the county where the respondent |
| 282 | resides or can be found, who shall serve it upon the respondent |
| 283 | as soon thereafter as possible on any day of the week and at any |
| 284 | time of the day or night. When requested by the sheriff, the |
| 285 | clerk of court may transmit a facsimile copy of an injunction |
| 286 | that has been certified by the clerk of court, and this |
| 287 | facsimile copy may be served in the same manner as a certified |
| 288 | copy. Upon receiving a facsimile copy, the sheriff must verify |
| 289 | receipt with the sender before attempting to serve it upon the |
| 290 | respondent. In addition, if the sheriff is in possession of an |
| 291 | injunction for protection that has been certified by the clerk |
| 292 | of court, the sheriff may transmit a facsimile copy of that |
| 293 | injunction to a law enforcement officer who shall serve it in |
| 294 | the same manner as a certified copy. The clerk of the court |
| 295 | shall be responsible for furnishing to the sheriff such |
| 296 | information on the respondent's physical description and |
| 297 | location as is required by the department to comply with the |
| 298 | verification procedures set forth in this section. |
| 299 | Notwithstanding any other provision of law to the contrary, the |
| 300 | chief judge of each circuit, in consultation with the |
| 301 | appropriate sheriff, may authorize a law enforcement agency |
| 302 | within the jurisdiction to effect service. A law enforcement |
| 303 | agency serving injunctions pursuant to this section shall use |
| 304 | service and verification procedures consistent with those of the |
| 305 | sheriff. |
| 306 | 2. When an injunction is issued, if the petitioner |
| 307 | requests the assistance of a law enforcement agency, the court |
| 308 | may order that an officer from the appropriate law enforcement |
| 309 | agency accompany the petitioner and assist in placing the |
| 310 | petitioner in possession of the dwelling or residence, or |
| 311 | otherwise assist in the execution or service of the injunction. |
| 312 | A law enforcement officer shall accept a copy of an injunction |
| 313 | for protection against domestic violence, certified by the clerk |
| 314 | of the court, from the petitioner and immediately serve it upon |
| 315 | a respondent who has been located but not yet served. |
| 316 | 3. All orders issued, changed, continued, extended, or |
| 317 | vacated subsequent to the original service of documents |
| 318 | enumerated under subparagraph 1., shall be certified by the |
| 319 | clerk of the court and delivered to the parties at the time of |
| 320 | the entry of the order. The parties may acknowledge receipt of |
| 321 | such order in writing on the face of the original order. In the |
| 322 | event a party fails or refuses to acknowledge the receipt of a |
| 323 | certified copy of an order, the clerk shall note on the original |
| 324 | order that service was effected. If delivery at the hearing is |
| 325 | not possible, the clerk shall mail certified copies of the order |
| 326 | to the parties at the last known address of each party. Service |
| 327 | by mail is complete upon mailing. When an order is served |
| 328 | pursuant to this subsection, the clerk shall prepare a written |
| 329 | certification to be placed in the court file specifying the |
| 330 | time, date, and method of service and shall notify the sheriff. |
| 331 |
|
| 332 | If the respondent has been served previously with the temporary |
| 333 | injunction and has failed to appear at the initial hearing on |
| 334 | the temporary injunction, any subsequent petition for injunction |
| 335 | seeking an extension of time may be served on the respondent by |
| 336 | the clerk of the court by certified mail in lieu of personal |
| 337 | service by a law enforcement officer. |
| 338 | Section 8. Paragraph (a) of subsection (8) of section |
| 339 | 784.046, Florida Statutes, is amended to read: |
| 340 | 784.046 Action by victim of repeat violence, sexual |
| 341 | violence, or dating violence for protective injunction; dating |
| 342 | violence investigations, notice to victims, and reporting; |
| 343 | pretrial release violations.-- |
| 344 | (8)(a)1. The clerk of the court shall furnish a copy of |
| 345 | the petition, notice of hearing, and temporary injunction, if |
| 346 | any, to the sheriff or a law enforcement agency of the county |
| 347 | where the respondent resides or can be found, who shall serve it |
| 348 | upon the respondent as soon thereafter as possible on any day of |
| 349 | the week and at any time of the day or night. When requested by |
| 350 | the sheriff, the clerk of court may transmit a facsimile copy of |
| 351 | an injunction that has been certified by the clerk of court, and |
| 352 | this facsimile copy may be served in the same manner as a |
| 353 | certified copy. Upon receiving a facsimile copy, the sheriff |
| 354 | must verify receipt with the sender before attempting to serve |
| 355 | it upon the respondent. In addition, if the sheriff is in |
| 356 | possession of an injunction for protection that has been |
| 357 | certified by the clerk of court, the sheriff may transmit a |
| 358 | facsimile copy of that injunction to a law enforcement officer |
| 359 | who shall serve it in the same manner as a certified copy. The |
| 360 | clerk of the court shall be responsible for furnishing to the |
| 361 | sheriff such information on the respondent's physical |
| 362 | description and location as is required by the department to |
| 363 | comply with the verification procedures set forth in this |
| 364 | section. Notwithstanding any other provision of law to the |
| 365 | contrary, the chief judge of each circuit, in consultation with |
| 366 | the appropriate sheriff, may authorize a law enforcement agency |
| 367 | within the chief judge's jurisdiction to effect this type of |
| 368 | service and to receive a portion of the service fee. No person |
| 369 | shall be authorized or permitted to serve or execute an |
| 370 | injunction issued under this section unless the person is a law |
| 371 | enforcement officer as defined in chapter 943. |
| 372 | 2. When an injunction is issued, if the petitioner |
| 373 | requests the assistance of a law enforcement agency, the court |
| 374 | may order that an officer from the appropriate law enforcement |
| 375 | agency accompany the petitioner and assist in the execution or |
| 376 | service of the injunction. A law enforcement officer shall |
| 377 | accept a copy of an injunction for protection against repeat |
| 378 | violence, sexual violence, or dating violence, certified by the |
| 379 | clerk of the court, from the petitioner and immediately serve it |
| 380 | upon a respondent who has been located but not yet served. |
| 381 | Section 9. This act shall take effect July 1, 2009. |