Florida Senate - 2009                                    SB 2686
       
       
       
       By Senator Lawson
       
       
       
       
       6-01839-09                                            20092686__
    1                        A bill to be entitled                      
    2         An act relating to litigation; amending s. 39.401,
    3         F.S.; providing that no person may take a child
    4         alleged to be dependant into custody except in cases
    5         involving an immediate threat to the health or safety
    6         of the child; providing additional exceptions;
    7         amending s. 39.702, F.S.; deleting a requirement that
    8         a citizen review panel be authorized through an
    9         administrative order by the chief judge of the
   10         circuit; authorizing citizen review panels to make
   11         recommendations in adjudicatory hearings under a
   12         specified provision; amending s. 39.809, F.S.;
   13         providing for recommendations by citizen review panels
   14         in hearings or trials on petitions for termination of
   15         parental rights; limiting continuances; providing an
   16         exception; providing that hearings or trials involving
   17         termination of parental rights are open to the public;
   18         providing an exception; requiring that reports and
   19         recommended orders from citizen review panels
   20         accompany written orders in certain proceedings;
   21         creating s. 46.061, F.S.; providing that in negligence
   22         cases, judgment must be entered on the basis of
   23         percentage of fault and not joint and several
   24         liability; defining the term “negligence cases”;
   25         providing for the application of joint and several
   26         liability to certain cases; creating s. 46.071, F.S.;
   27         providing that certain privileges and immunities are
   28         not valid defenses in certain actions under statute or
   29         in other specified actions; providing for
   30         construction; creating s. 46.081, F.S.; providing for
   31         assignability of claims; providing that claims or
   32         rights in injury may be given as a divided part or
   33         interest; providing for standing of parties having
   34         executed an assignment or executed a giving of
   35         interest; providing for construction of provisions;
   36         amending s. 57.105, F.S.; revising requirements
   37         concerning motions to obtain sanctions for raising
   38         unsupported claims or defenses; providing for
   39         construction of provisions; providing that the section
   40         creates a substantive right to attorney’s fees;
   41         providing definitions; providing intent; amending s.
   42         59.041, F.S.; providing requirements for court
   43         opinions relating to claims of harmless error;
   44         providing that neither the court file nor the
   45         appellate record requires a transcript or statement of
   46         proceedings for a proper, full examination of the case
   47         before the court; deleting a provision for liberal
   48         construction of harmless error provisions; amending s.
   49         59.06, F.S.; revising provision relating to motions
   50         for dismissal or summary judgment; providing that an
   51         order sustaining a motion for dismissal or summary
   52         judgment without leave to amend or with prejudice or
   53         absent an allowance for some other further action
   54         expressly rendered by the court is an order sufficient
   55         to allow an interlocutory appeal to be made within a
   56         specified period; amending s. 454.18, F.S.; revisions
   57         provisions relating to persons allowed to practice
   58         law; providing for lay representations in certain
   59         proceedings; providing for challenges to such
   60         representation; providing for application; amending s.
   61         454.23, F.S.; prohibiting specified acts by attorneys;
   62         providing criminal penalties; amending s. 768.81,
   63         F.S.; providing for apportionment of damages to
   64         nonparties; providing for construction; amending s.
   65         839.24, F.S.; prohibiting violations concerning
   66         certain procedural rules and laws; providing
   67         penalties; amending s. 843.0855, F.S.; prohibiting
   68         certain acts relating to obstruction of justice and
   69         deprivation of rights under color of law during court
   70         proceedings; providing penalties; providing for
   71         construction; amending ss. 924.051 and 924.33, F.S.;
   72         providing requirements for court opinions in specified
   73         cases; providing that neither the court file nor the
   74         appellate record requires a transcript or statement of
   75         proceedings in order for a proper, full examination of
   76         the case before the court; creating s. 939.051, F.S.;
   77         providing sanctions for persons found to have abused
   78         the judicial system; providing for motions for
   79         sanctions; providing for construction; repealing s.
   80         924.395, F.S., relating to sanctions; amending s.
   81         985.35, F.S.; requiring the Department of Juvenile
   82         Justice to adopt rules governing the procedures that
   83         may be used to restrain a child upon his or her
   84         arrival at the courthouse; prohibiting the use of
   85         instruments of restraint on a child after the child
   86         arrives at the courthouse; prohibiting subjecting a
   87         child to extended periods of isolation; providing
   88         specified exemptions; amending s. 985.483, F.S.;
   89         conforming a cross-reference; creating s. 985.602,
   90         F.S.; prohibiting use of restraints on a child;
   91         providing exceptions; providing an effective date.
   92  
   93  Be It Enacted by the Legislature of the State of Florida:
   94  
   95         Section 1. Subsection (1) of section 39.401, Florida
   96  Statutes, is amended to read:
   97         39.401 Taking a child alleged to be dependent into custody;
   98  law enforcement officers and authorized agents of the
   99  department.—
  100         (1) Except in cases involving an immediate threat to the
  101  health or safety of a child, no person, including a law
  102  enforcement officer, a duly authorized person, any other officer
  103  of the court or of the state, may take a child may only be taken
  104  into custody unless:
  105         (a) Pursuant to the provisions of this part, based upon
  106  sworn testimony, either before or after a petition is filed
  107  resulting in a court order issued after a finding of probable
  108  cause by the court authorizing such; or
  109         (b) By a law enforcement officer, or an authorized agent of
  110  the department, if the officer or authorized agent has probable
  111  cause resulting in a court order issued supporting such to
  112  support a finding:
  113         1. That the child has been abused, neglected, or abandoned,
  114  or is suffering from or is in imminent danger of illness or
  115  injury as a result of abuse, neglect, or abandonment;
  116         2. That the parent or legal custodian of the child has
  117  materially violated a condition of placement imposed by the
  118  court; or
  119         3. That the child has no parent, legal custodian, or
  120  responsible adult relative immediately known and available to
  121  provide supervision and care.
  122         Section 2. Subsection (1) of section 39.702, Florida
  123  Statutes, is amended to read:
  124         39.702 Citizen review panels.—
  125         (1) Citizen review panels may be established in each
  126  judicial circuit and shall be authorized by an administrative
  127  order executed by the chief judge of each circuit. The court
  128  shall administer an oath of office to each citizen review panel
  129  member which shall authorize the panel member to participate in
  130  citizen review panels and make recommendations to the court
  131  pursuant to the provisions of this section and s. 39.809.
  132         Section 3. Section 39.809, Florida Statutes, is amended to
  133  read:
  134         39.809 Adjudicatory hearing.—
  135         (1) In a hearing or trial on a petition for termination of
  136  parental rights, the court, assisted by a report and recommended
  137  order from the citizen review panel as established under s.
  138  39.702, shall consider the elements required for termination.
  139  Each of these elements must be established by clear and
  140  convincing evidence before the petition is granted. Continuances
  141  as a whole shall not extend beyond 1 year after the advisory
  142  hearing unless there are compelling reasons or extraordinary
  143  circumstances.
  144         (2) The adjudicatory hearing must be held within 45 days
  145  after the advisory hearing, but reasonable continuances for the
  146  purpose of investigation, discovery, or procuring counsel or
  147  witnesses may, when necessary, be granted.
  148         (3) The adjudicatory hearing or trial must be conducted by
  149  the judge without a jury, applying the rules of evidence in use
  150  in civil cases and adjourning the case from time to time as
  151  necessary. For purposes of the adjudicatory hearing or trial, to
  152  avoid unnecessary duplication of expense, the judge may consider
  153  in-court testimony previously given at any properly noticed
  154  hearing, without regard to the availability or unavailability of
  155  the witness at the time of the actual adjudicatory hearing or
  156  trial, if the recorded testimony itself is made available to the
  157  judge. Consideration of such testimony does not preclude the
  158  witness being subpoenaed to answer supplemental questions.
  159         (4) All hearings or trials involving termination of
  160  parental rights shall be open are confidential and closed to the
  161  public, except upon the written motion to the court by the
  162  parents or guardian of the child or children who are the subject
  163  of the hearing or trial that it be made confidential and closed.
  164  Hearings involving more than one child may be held
  165  simultaneously when the children involved are related to each
  166  other or were involved in the same case. The child and the
  167  parents may be examined separately and apart from each other.
  168         (5) The judge shall enter a written order with the findings
  169  of fact and conclusions of law. The report and recommended order
  170  from the citizen review panel shall accompany the written order.
  171         Section 4. Section 46.061, Florida Statutes, is created to
  172  read:
  173         46.061 Joint and several liability.—
  174         (1)(a) In negligence cases, the court shall enter judgment
  175  against each party and nonparty liable on the basis of that
  176  party’s percentage of fault under s. 768.81 and not, initially,
  177  on the basis of the doctrine of joint and several liability.
  178         (b) As used in this section, the term “negligence cases”
  179  includes, but is not limited to, civil actions for damages based
  180  upon theories of negligence, strict liability, products
  181  liability, and professional malpractice whether couched in terms
  182  of contract or tort or breach of warranty and like theories. In
  183  determining whether a case falls within the term “negligence
  184  cases,” the court shall look to the substance of the action and
  185  not the terms used by the parties to characterize it.
  186         (2) The doctrine of joint and several liability shall still
  187  apply to any action brought by a party to recover actual
  188  economic damages resulting from pollution, to any action based
  189  upon an intentional tort, or to any cause of action as to which
  190  application of the doctrine of joint and several liability is
  191  specifically provided by chapter 403, chapter 498, chapter 517,
  192  chapter 542, or chapter 895.
  193         Section 5. Section 46.071, Florida Statutes, is created to
  194  read:
  195         46.071 Privilege and immunity defenses.—
  196         (1) Litigation privilege, judicial, qualified, or absolute
  197  immunity, and similar defenses or privileges are not valid
  198  common law defenses in actions under statutes that provide for
  199  rights and claims in injury, tort, or contact liability for acts
  200  that may be or are committed, directly or indirectly, involving
  201  judicial or administrative proceedings.
  202         (2) Litigation privilege, judicial, qualified, or absolute
  203  immunity, and the like are not viable or valid defenses in
  204  actions on claims and rights for abuse of process, malicious
  205  prosecution, and fraud upon the court, also known as extrinsic
  206  fraud.
  207         (3) This section shall be strictly construed, enforced, and
  208  complied with.
  209         Section 6. Section 46.081, Florida Statutes, is created to
  210  read:
  211         46.081 Assignment of or interest in claims and rights.—
  212         (1) All claims or rights in injury, tort, contract, or
  213  statute, whether of a commercial or personal nature, are fully,
  214  wholly, or partly assignable, and any fiduciary or confidential
  215  relationship is waived by implication in such an executed
  216  assignment.
  217         (2) All claims or rights in injury, tort, contract, or
  218  statute, whether of a commercial or personal nature, may be
  219  given as a divided or a part interest, and any fiduciary or
  220  confidential relationship is waived by implication in such an
  221  executed giving of interest.
  222         (3) Parties having executed an assignment or executed a
  223  giving of interest have standing in all matters applicable to
  224  the claims or rights.
  225         (4) This section shall be strictly construed, enforced, and
  226  complied with.
  227         Section 7. Section 57.105, Florida Statutes, is amended to
  228  read:
  229         57.105 Attorney’s fee; sanctions for raising unsupported
  230  claims or defenses; service of motions; damages for delay of
  231  litigation.—
  232         (1) Upon the court’s initiative or motion of any party, the
  233  court shall award a reasonable attorney’s fee to be paid to the
  234  prevailing party in equal amounts by the losing party and the
  235  losing party’s attorney on any claim or defense at any time
  236  during a civil proceeding or action in which the court finds
  237  that the losing party or the losing party’s attorney knew or
  238  should have known that a claim or defense when initially
  239  presented to the court or at any time before trial:
  240         (a) Was not supported by the material facts necessary to
  241  establish the claim or defense; or
  242         (b) Would not be supported by the application of then
  243  existing law to those material facts.
  244  
  245  However, the losing party’s attorney is not personally
  246  responsible if he or she has acted in good faith, based on the
  247  representations of his or her client as to the existence of
  248  those material facts. If the court awards attorney’s fees to a
  249  claimant pursuant to this subsection, the court shall also award
  250  prejudgment interest.
  251         (2) Paragraph (1)(b) does not apply if the court determines
  252  that the claim or defense was initially presented to the court
  253  as a good faith argument for the extension, modification, or
  254  reversal of existing law or the establishment of new law, as it
  255  applied to the material facts, with a reasonable expectation of
  256  success.
  257         (3) At any time in any civil proceeding or action in which
  258  the moving party proves by a preponderance of the evidence that
  259  any action taken by the opposing party, including, but not
  260  limited to, the filing of any pleading or part thereof, the
  261  assertion of or response to any discovery demand, the assertion
  262  of any claim or defense, or the response to any request by any
  263  other party, was taken primarily for the purpose of unreasonable
  264  delay, the court shall award damages to the moving party for its
  265  reasonable expenses incurred in obtaining the order, which may
  266  include attorney’s fees, and other loss resulting from the
  267  improper delay.
  268         (4) A party is entitled to an award of sanctions under this
  269  section only if a motion is by a party seeking sanctions under
  270  this section must be served by a party seeking sanctions under
  271  this section. Such motion shall but may not be filed with or
  272  presented to the court unless, within 21 days after service of
  273  the motion, the challenged paper, claim, defense, contention,
  274  allegation, or denial is not withdrawn or appropriately
  275  corrected. Any motion filed with the court which does not comply
  276  with this subsection is null and void. This subsection is
  277  substantive and may not be waived except in writing. This
  278  subsection does not apply to sanctions ordered upon the court’s
  279  initiative.
  280         (5) In administrative proceedings under chapter 120, an
  281  administrative law judge shall award a reasonable attorney’s fee
  282  and damages to be paid to the prevailing party in equal amounts
  283  by the losing party and a losing party’s attorney or qualified
  284  representative in the same manner and upon the same basis as
  285  provided in subsections (1)-(4). Such award shall be a final
  286  order subject to judicial review pursuant to s. 120.68. If the
  287  losing party is an agency as defined in s. 120.52(1), the award
  288  to the prevailing party shall be against and paid by the agency.
  289  A voluntary dismissal by a nonprevailing party does not divest
  290  the administrative law judge of jurisdiction to make the award
  291  described in this subsection.
  292         (6) The provisions of this section must be strictly
  293  enforced and complied with and are supplemental to other
  294  sanctions or remedies available under law or under court rules.
  295         (7) If a contract contains a provision allowing attorney’s
  296  fees to a party when he or she is required to take any action to
  297  enforce the contract, the court may also allow reasonable
  298  attorney’s fees to the other party when that party prevails in
  299  any action, whether as plaintiff or defendant, with respect to
  300  the contract. This subsection applies to any contract entered
  301  into on or after October 1, 1988.
  302         (8)(a) This section creates substantive rights to the award
  303  of attorney’s fees and any procedural provisions are directly
  304  related to the definition of those rights. Any procedural
  305  aspects of this section are intended to implement the
  306  substantive provisions of the law.
  307         (b) For purposes of this section, the term:
  308         1. “Attorney” means a lawyer and, where applicable, a lay,
  309  qualified, or designated representative appearing for a party.
  310         2. “Party” means any person represented by a lawyer or
  311  appearing pro se.
  312         (c) It is the intent of the Legislature that the award of
  313  fees, costs, damages, and sanctions under this section apply and
  314  are a right to any party, lawyer, or representative equally
  315  whether the person is or is not a lawyer.
  316         Section 8. Section 59.041, Florida Statutes, is amended to
  317  read:
  318         59.041 Harmless error; effect.—No judgment shall be set
  319  aside or reversed, or new trial granted by any court of the
  320  state in any cause, civil or criminal, on the ground of
  321  misdirection of the jury or the improper admission or rejection
  322  of evidence or for error as to any matter of pleading or
  323  procedure, unless in the opinion of the court to which
  324  application is made, after an examination of the entire case it
  325  shall appear that the error complained of has resulted in a
  326  miscarriage of justice. The opinion of the court must be
  327  supported by at least one binding authority for each point for
  328  review that must be cited in the rendered final order or
  329  opinion. Neither the court file nor the appellate record
  330  requires a transcript or statement of proceedings for a proper,
  331  full examination of the case before the court. This section
  332  shall be liberally construed.
  333         Section 9. Subsection (1) of section 59.06, Florida
  334  Statutes, is amended to read:
  335         59.06 Matters reviewable on appeal.—
  336         (1) WHAT MAY BE ASSIGNED AS ERROR.—All judgments and orders
  337  made in any action wherein the trial court:
  338         (a) May allow or refuse to allow any motion:
  339         1. For a new trial or rehearing,
  340         2. For leave to amend pleadings,
  341         3. For leave to file new or additional pleadings,
  342         4. To amend the record, or
  343         5. For continuance of the action; or
  344         (b) Shall sustain or overrule any motion to dismiss for
  345  dismissal or summary judgment the action
  346  
  347  may be assigned as error upon any appeal from the final judgment
  348  or order in the action. For purposes of paragraph (b), an order
  349  sustaining a motion therein without leave to amend or with
  350  prejudice or absent an allowance for some other further action
  351  expressly rendered by the court is an order sufficient to allow
  352  an interlocutory appeal to be made within 30 days after the
  353  order. The appellate court shall hear and determine the matter
  354  so assigned under like rules as in other actions.
  355         Section 10. Section 454.18, Florida Statutes, is amended to
  356  read:
  357         454.18 Officers and persons authorized or unauthorized to
  358  not allowed to practice.—
  359         (1) No sheriff or full-time deputy sheriff may practice law
  360  in this state.
  361         (2) No or clerk of any court, or full-time deputy clerk of
  362  any court may thereof, shall practice law in this state.
  363         (3), nor shall Any person who is not of good moral
  364  character, or who has been convicted of an infamous crime may
  365  not be entitled to practice law in this state.
  366         (4) Any person not licensed or otherwise authorized may not
  367  practice law in this state.
  368         (5) Any person who has been knowingly disbarred and who has
  369  not been lawfully reinstated or is knowingly under suspension
  370  from the practice of law by the Florida Supreme Court may not
  371  practice law in this state.
  372         (6)A person may not be denied the right to practice on
  373  account of sex, race, or color. And Any person, whether an
  374  attorney at law or not, or whether within the exceptions
  375  mentioned above or not:,
  376         (a) May conduct his or her own cause.
  377         (b) Has a qualified right to lay representation or to be
  378  represented by a person of his or her choice as prescribed by:
  379         1. Chapter 120, concerning a qualified representative,
  380         2. Chapter 44, concerning a designated representative,
  381         3. Section 709.08, concerning an attorney in fact,
  382         4. Decisions of the Florida Supreme Court concerning
  383  representation by a realty property manager,
  384         5. Decisions of the Florida Supreme Court concerning a
  385  nonlawyer using approved forms,
  386         6. Decisions of the Florida Supreme Court concerning
  387  appearances in county court or small claims court civil
  388  proceedings,
  389         7. Rule 5-15, Florida Rules Relating to Admissions to the
  390  Bar,
  391         8. Judicial discretion under the inherent authority of the
  392  courts doctrine, and
  393         9. Federal law, or any other clearly expressed rule,
  394  statute, or court decision or order under other federal or state
  395  law and authority,
  396  
  397  in any court of this state, or before any public board,
  398  committee, or officer, subject to the lawful rules and
  399  discipline of such court, board, committee, or officer.
  400         (7)(a) Any party, counsel of record, judicial or quasi
  401  judicial court or officer, whether required or not, absent
  402  federal preemption, may inquire and challenge the competence and
  403  character of the lay representative upon notice and hearing. The
  404  matters in such hearing to be considered shall be in accordance
  405  with Rules 28-106.106 and 28-106.107, Florida Administrative
  406  Code.
  407         (b) A finding that the lay representative is inadequate in
  408  such matters upon disposition of hearing, the lay representative
  409  shall be disqualified in conducting the cause; otherwise, the
  410  cause shall proceed authorizing and qualifying the lay
  411  representative to maintain the cause.
  412         (c) Upon rendition of a finding that the lay representative
  413  is disqualified, the lay representative may be found in contempt
  414  or reported to The Florida Bar’s unlicensed practice of law
  415  division or state attorney for prosecution under s. 454.23. This
  416  paragraph may not be construed or executed in violation of lay
  417  representative’s right to protection from double jeopardy.
  418         (d) Review of the determination disqualifying the lay
  419  representative shall be by petition for certiorari.
  420         (e) Notwithstanding paragraphs (b) and (c), if the
  421  disqualified lay representative has a valid interest in the
  422  cause or by assignment, the disqualified lay representative may
  423  appear pro se only to intervene or by substitution as allowed by
  424  law; otherwise, an appearance shall be the unauthorized practice
  425  of law.
  426         (8)(a) The provisions of this section restricting the
  427  practice of law by a sheriff or clerk, or full-time deputy
  428  thereof, do not apply in a case where such person is
  429  representing the office or agency in the course of his or her
  430  duties as an attorney at law and, as to lay representation,
  431  shall be strictly complied with and enforced.
  432         (b) The officers and persons listed in subsections (1),
  433  (2), (3), and (5) shall not be otherwise authorized to practice
  434  law under paragraph (6)(b) or subsection (7) absent a federal
  435  law preempting such provision.
  436         (9) No person shall be denied the right to practice law on
  437  account of sex, race, or color.
  438         (10) This section has retroactive and prospective
  439  application in law.
  440         Section 11. Section 454.23, Florida Statutes, is amended to
  441  read:
  442         454.23 Penalties.—
  443         (1) Any person not licensed or otherwise authorized to
  444  practice law in this state who practices law in this state or
  445  holds himself or herself out to the public as qualified to
  446  practice law in this state, or who willfully pretends to be, or
  447  willfully takes or uses any name, title, addition, or
  448  description implying that he or she is qualified, or recognized
  449  by law as qualified, to practice law in this state, commits a
  450  felony of the third degree, punishable as provided in s.
  451  775.082, s. 775.083, or s. 775.084.
  452         (2) Any attorney duly admitted or authorized to practice in
  453  this state who willfully or intentionally violates, or causes
  454  any person to violate, the rules and discipline of any court,
  455  tribunal, or officer in any matter of order or procedure in this
  456  state, not in conflict with the constitution or laws of this
  457  state, commits a misdemeanor of the first degree, punishable as
  458  provided in s. 775.082 or s. 775.083.
  459         (3) Any attorney duly admitted or authorized to practice in
  460  this state who willfully or intentionally violates the oath of
  461  admission to The Florida Bar, or commits or causes any act in
  462  violation of 18 U.S.C. s. 241 or 18 U.S.C. s. 242 under federal
  463  law before any court, tribunal, or officer in this state,
  464  commits a felony of the third degree, punishable as provided in
  465  s. 775.082, s. 775.083, or s. 775.084.
  466         Section 12. Subsection (3) of section 768.81, Florida
  467  Statutes, is amended to read:
  468         768.81 Comparative fault.—
  469         (3) APPORTIONMENT OF DAMAGES.—In cases to which this
  470  section applies, the court shall enter judgment against each
  471  party and nonparty liable on the basis of such party’s
  472  percentage of fault and not, initially, on the basis of the
  473  doctrine of joint and several liability.
  474         (a) In order to allocate any or all fault to a nonparty, a
  475  defendant must affirmatively plead the fault of a nonparty and,
  476  absent a showing of good cause, identify the nonparty, if known,
  477  or describe the nonparty as specifically as practicable, either
  478  by preliminary motion, or in the initial responsive pleading
  479  when the answer and defenses are first due presented, or through
  480  third-party practice such as interpleader, contribution,
  481  indemnification, or subrogation, subject to amendment any time
  482  before trial in accordance with the Florida Rules of Civil
  483  Procedure.
  484         (b) In order to allocate any or all fault to a nonparty and
  485  include the named or unnamed nonparty on the verdict form for
  486  purposes of apportioning damages, a defendant must have filed
  487  with the court and served process on the nonparty with all
  488  pertinent motions and pleadings, thereby subjecting the nonparty
  489  to the jurisdiction of the court, and prove at trial, by a
  490  preponderance of the evidence, the fault of the nonparty in
  491  causing the plaintiff’s injuries; otherwise, the defendant shall
  492  be fully liable for the allocation of fault of the nonparty
  493  alleged.
  494         (c) A nonparty brought into the case who has been, in any
  495  way, absolved by a party is immune. Such a party may also invoke
  496  a statute of limitations or statute of repose. Such an
  497  invocation must be made known to the court with reasonable
  498  diligence by motion or pleading of a party or the nonparty, and,
  499  if proven, shall be reflected in the judgment with the
  500  determined percentage of fault as to liability and damages being
  501  nonexecutable against the nonparty. Otherwise, the judgment
  502  shall be held fully executable against a nonparty for the
  503  allocation of fault determined.
  504         (d) This section shall be strictly construed, enforced, and
  505  complied with.
  506         Section 13. Section 839.24, Florida Statutes, is amended to
  507  read:
  508         839.24 Penalty for Failure to perform duty required of
  509  officer; penalties.—Any A sheriff, judicial officer, quasi
  510  judicial officer county court judge, prosecuting officer, court
  511  reporter, stenographer, interpreter, or other officer required
  512  to perform any duty under any provision of the Florida Rules of
  513  Court or chapter 120 the criminal procedure law who willfully or
  514  negligently fails or corruptly refuses to perform his or her
  515  duty thereunder commits shall be guilty of a misdemeanor of the
  516  first second degree, punishable as provided in s. 775.082 or s.
  517  775.083. This section must be strictly enforced by law
  518  enforcement agencies and state attorneys without discretion.
  519         Section 14. Subsection (4) of section 843.0855, Florida
  520  Statutes, is amended to read:
  521         843.0855 Criminal actions under color of law or through use
  522  of simulated legal process.—
  523         (4)(a) Any person who falsely under color of law attempts
  524  in any way to influence, intimidate, or hinder a public officer
  525  or law enforcement officer in the discharge of his or her
  526  official duties by means of, but not limited to, threats of or
  527  actual physical abuse or harassment, or through the use of
  528  simulated legal process, commits a felony of the third degree,
  529  punishable as provided in s. 775.082 or s. 775.083.
  530         (b) Any public servant or employee who under color of law
  531  in any manner intentionally obstructs or attempts to obstruct
  532  the due execution of the law, or with the intent to intimidate,
  533  hinder, deprive, or interrupt any officer, beverage enforcement
  534  agent, or other person or party in the legal performance of his
  535  or her duty or the exercise of his or her rights under the
  536  constitution or laws of this state or the United States, in
  537  connection with or relating to any legal process, whether such
  538  intent is effected or not, commits a felony of the third degree,
  539  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  540  This paragraph must be strictly enforced by law enforcement and
  541  state attorneys without discretion.
  542         (c) Any public servant or employee who under color of law
  543  in any manner intentionally renders any ruling, order, or
  544  opinion, or any action or inaction adverse or contrary to the
  545  doctrines of stare decisis, binding precedent, the supremacy
  546  clause of the United States Constitution, or his or her oath of
  547  office in connection with or relating to any legal process
  548  affecting persons and property, when clearly made apprised of
  549  such evidence or information, commits a felony of the second
  550  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  551  775.084, unless the servant or employee has the authority to
  552  overrule or recede from such rule of law, or distinguishes such
  553  rule of law or sets forth some other intervening or superseding
  554  evidence or information and does in ruling, order or opinion, or
  555  action or inaction. This paragraph must be strictly enforced by
  556  law enforcement and state attorneys without discretion.
  557         (d) Any public servant or employee or person who commits or
  558  causes any act in violation of 18 U.S.C. s. 241 or 18 U.S.C. s.
  559  242 in connection with or relating to any legal process
  560  affecting persons and property commits a felony of the second
  561  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  562  775.084. This paragraph must be strictly enforced by law
  563  enforcement and state attorneys without discretion.
  564         Section 15. Subsection (3) of section 924.051, Florida
  565  Statutes, is amended to read:
  566         924.051 Terms and conditions of appeals and collateral
  567  review in criminal cases.—
  568         (3) An appeal may not be taken from a judgment or order of
  569  a trial court unless a prejudicial error is alleged and is
  570  properly preserved or, if not properly preserved, would
  571  constitute fundamental error. A judgment or sentence may be
  572  reversed on appeal only when an appellate court determines after
  573  a review of the complete record that prejudicial error occurred
  574  and was properly preserved in the trial court or, if not
  575  properly preserved, would constitute fundamental error. The
  576  opinion of the court must be supported by at least one binding
  577  authority for each point for review that must be cited in the
  578  rendered final order or opinion. Neither the court file nor the
  579  appellate record requires a transcript or statement of
  580  proceedings for a proper, full examination of the case before
  581  the court.
  582         Section 16. Section 924.33, Florida Statutes, is amended to
  583  read:
  584         924.33 When judgment not to be reversed or modified.—No
  585  judgment shall be reversed unless the appellate court is of the
  586  opinion, after an examination of all the appeal papers, that
  587  error was committed that injuriously affected the substantial
  588  rights of the appellant. It shall not be presumed that error
  589  injuriously affected the substantial rights of the appellant.
  590  The opinion of the court must be supported by at least one
  591  binding authority for each point for review that must be cited
  592  in the rendered final order or opinion. Neither the court file
  593  nor the appellate record requires a transcript or statement of
  594  proceedings for a proper, full examination of the case before
  595  the court.
  596         Section 17. Section 939.051, Florida Statutes, is created
  597  to read:
  598         939.051 Sanctions for unfounded offense, defense, or delay;
  599  service of motions.—
  600         (1) The Legislature strongly encourages the courts, through
  601  their inherent powers and pursuant to this section, to impose
  602  sanctions against any person, lawyer or nonlawyer, including the
  603  state, within the court’s jurisdiction who is found at any time
  604  in any trial court or appellate court proceeding to have abused
  605  the judicial system in any way, including, but not limited to,
  606  the following:
  607         (a) Abused a petition for extraordinary relief or
  608  postconviction motion, or an appeal therefrom;
  609         (b) Abused or caused unreasonable delay in any pretrial
  610  proceeding;
  611         (c) Raised a claim that a court has found to be frivolous
  612  or procedurally barred or that should have been preserved by
  613  objection in the trial court or raised on a direct appeal;
  614         (d) Improperly withheld or misleadingly uses evidence or
  615  testimony;
  616         (e) Adversely affected the orderly administration of
  617  justice; or
  618         (f) Partook in dilatory tactics, sandbagging, or any other
  619  improper practices.
  620         (2) Sanctions that the court may and should consider, when
  621  applicable and appropriate, include, but are not limited to:
  622         (a) Dismissal of a pleading or case.
  623         (b) Disciplinary sanctions.
  624         (c) A fine.
  625         (d) Imposition of costs, fees, expenses, or damages.
  626         (e) Any other sanction that is available to the court under
  627  its inherent powers.
  628         (3) A motion seeking sanctions under this section shall be
  629  by the state, a defendant, whether a lawyer or nonlawyer, if pro
  630  se, otherwise by his or her representing lawyer. The motion must
  631  clearly express facts demonstrating conduct as described in
  632  subsection (1), be verified, served on all the parties in the
  633  case, and filed with the court within 10 days after being
  634  subject to and apprised of the misconduct involved. Any motion
  635  filed with the court that does not comply with this subsection
  636  is void. This subsection is substantive and its requirements may
  637  not be waived except in writing. This subsection does not apply
  638  to sanctions ordered upon the court’s initiative.
  639         (4) Sanctions imposed against the state under paragraph
  640  (2)(d) shall be awarded and approved by the Chief Financial
  641  Officer in accordance with s. 939.13.
  642         (5) The provisions of this section are supplemental to
  643  other sanctions or remedies available under law or under court
  644  rules.
  645         (6) This section must be strictly enforced and complied
  646  with.
  647         Section 18. Section 924.395, Florida Statutes, is repealed.
  648         Section 19. Section 985.35, Florida Statutes, is amended to
  649  read:
  650         985.35 Adjudicatory hearings; withheld adjudications;
  651  orders of adjudication.—
  652         (1) The adjudicatory hearing must be held as soon as
  653  practicable after the petition alleging that a child has
  654  committed a delinquent act or violation of law is filed and in
  655  accordance with the Florida Rules of Juvenile Procedure; but
  656  reasonable delay for the purpose of investigation, discovery, or
  657  procuring counsel or witnesses shall be granted. If the child is
  658  being detained, the time limitations in s. 985.26(2) and (3)
  659  apply. The department shall adopt by rule procedures for
  660  restraining a child upon his or her arrival at the courthouse.
  661  The rules must prohibit the use of mechanical devices and
  662  unreasonable restraints. In addition, a child may not be subject
  663  to extended periods of isolation.
  664         (2) Adjudicatory hearings shall be conducted without a jury
  665  by the court, applying in delinquency cases the rules of
  666  evidence in use in criminal cases; adjourning the hearings from
  667  time to time as necessary; and conducting a fundamentally fair
  668  hearing in language understandable, to the fullest extent
  669  practicable, to the child before the court.
  670         (a) In a hearing on a petition alleging that a child has
  671  committed a delinquent act or violation of law, the evidence
  672  must establish the findings beyond a reasonable doubt.
  673         (b) The child is entitled to the opportunity to introduce
  674  evidence and otherwise be heard in the child’s own behalf and to
  675  cross-examine witnesses.
  676         (c) A child charged with a delinquent act or violation of
  677  law must be afforded all rights against self-incrimination.
  678  Evidence illegally seized or obtained may not be received to
  679  establish the allegations against the child.
  680         (3) Instruments of restraint, such as handcuffs, chains,
  681  irons, or straitjackets, may not be used on a child during any
  682  court proceeding and must be removed when the child appears
  683  before the court unless the court finds that:
  684         (a) Restraints are necessary to prevent physical harm to
  685  the child or another person;
  686         (b) A less restrictive alternative is not available which
  687  would prevent physical harm, including, but not limited to, the
  688  presence of personnel of the department, a law enforcement
  689  officer, or a bailiff;
  690         (c) The child has a history of disruptive behavior in the
  691  courtroom which places others in potentially harmful situations
  692  or presents a substantial risk of inflicting bodily harm on
  693  others as evidenced by recent behavior;
  694         (d) The child is likely to attempt to escape during a
  695  transfer or a hearing; or
  696         (e) The child is charged with a capital offense.
  697  
  698  The department must comply with the Protective Action Response
  699  policy adopted under s. 985.645(2) whenever mechanical
  700  restraints are used.
  701         (4)(3) If the court finds that the child named in a
  702  petition has not committed a delinquent act or violation of law,
  703  it shall enter an order so finding and dismissing the case.
  704         (5)(4) If the court finds that the child named in the
  705  petition has committed a delinquent act or violation of law, it
  706  may, in its discretion, enter an order stating the facts upon
  707  which its finding is based but withholding adjudication of
  708  delinquency.
  709         (a) Upon withholding adjudication of delinquency, the court
  710  may place the child in a probation program under the supervision
  711  of the department or under the supervision of any other person
  712  or agency specifically authorized and appointed by the court.
  713  The court may, as a condition of the program, impose as a
  714  penalty component restitution in money or in kind, community
  715  service, a curfew, urine monitoring, revocation or suspension of
  716  the driver’s license of the child, or other nonresidential
  717  punishment appropriate to the offense, and may impose as a
  718  rehabilitative component a requirement of participation in
  719  substance abuse treatment, or school or other educational
  720  program attendance.
  721         (b) If the child is attending public school and the court
  722  finds that the victim or a sibling of the victim in the case was
  723  assigned to attend or is eligible to attend the same school as
  724  the child, the court order shall include a finding pursuant to
  725  the proceedings described in s. 985.455, regardless of whether
  726  adjudication is withheld.
  727         (c) If the court later finds that the child has not
  728  complied with the rules, restrictions, or conditions of the
  729  community-based program, the court may, after a hearing to
  730  establish the lack of compliance, but without further evidence
  731  of the state of delinquency, enter an adjudication of
  732  delinquency and shall thereafter have full authority under this
  733  chapter to deal with the child as adjudicated.
  734         (6)(5) If the court finds that the child named in a
  735  petition has committed a delinquent act or violation of law, but
  736  elects not to proceed under subsection (5) (4), it shall
  737  incorporate that finding in an order of adjudication of
  738  delinquency entered in the case, briefly stating the facts upon
  739  which the finding is made, and the court shall thereafter have
  740  full authority under this chapter to deal with the child as
  741  adjudicated.
  742         (7)(6) Except as the term “conviction” is used in chapter
  743  322, and except for use in a subsequent proceeding under this
  744  chapter, an adjudication of delinquency by a court with respect
  745  to any child who has committed a delinquent act or violation of
  746  law shall not be deemed a conviction; nor shall the child be
  747  deemed to have been found guilty or to be a criminal by reason
  748  of that adjudication; nor shall that adjudication operate to
  749  impose upon the child any of the civil disabilities ordinarily
  750  imposed by or resulting from conviction or to disqualify or
  751  prejudice the child in any civil service application or
  752  appointment, with the exception of the use of records of
  753  proceedings under this chapter as provided in s. 985.045(4).
  754         (8)(7) Notwithstanding any other provision of law, an
  755  adjudication of delinquency for an offense classified as a
  756  felony shall disqualify a person from lawfully possessing a
  757  firearm until such person reaches 24 years of age.
  758         Section 20. Subsection (2) of section 985.483, Florida
  759  Statutes, is amended to read:
  760         985.483 Intensive residential treatment program for
  761  offenders less than 13 years of age.—
  762         (2) DETERMINATION.—After a child has been adjudicated
  763  delinquent under s. 985.35(6)(5), the court shall determine
  764  whether the child is eligible for an intensive residential
  765  treatment program for offenders less than 13 years of age under
  766  subsection (1). If the court determines that the child does not
  767  meet the criteria, ss. 985.435, 985.437, 985.439, 985.441,
  768  985.445, 985.45, and 985.455 shall apply.
  769         Section 21. Section 985.602, Florida Statutes, is created
  770  to read:
  771         985.602 Use of restraints during court proceedings
  772  prohibited; exceptions.—
  773         (1) Instruments of restraint, such as handcuffs, chains,
  774  irons, or straitjackets, may not be used on a child during any
  775  court proceeding and must be removed when the child appears
  776  before the court unless the court finds that:
  777         (a) Restraints are necessary to prevent physical harm to
  778  the child or another person;
  779         (b) A less restrictive alternative is not available which
  780  would prevent physical harm, including, but not limited to, the
  781  presence of personnel of the department, a law enforcement
  782  officer, or a bailiff;
  783         (c) The child has a history of disruptive behavior in the
  784  courtroom which places others in potentially harmful situations
  785  or presents a substantial risk of inflicting bodily harm on
  786  others as evidenced by recent behavior;
  787         (d) The child is likely to attempt to escape during a
  788  transfer or a hearing; or
  789         (e) The child is charged with a capital offense.
  790         (2) The department must comply with the Protective Action
  791  Response policy adopted under s. 985.645(2) whenever mechanical
  792  restraints are used.
  793         Section 22. This act shall take effect July 1, 2009.