Florida Senate - 2009 SB 412
By Senator Crist
12-00355-09 2009412__
1 A bill to be entitled
2 An act relating to service of process; amending s.
3 30.231, F.S.; increasing the fees charged by the
4 sheriff in civil cases for service of process;
5 exempting the State of Florida and its agencies from
6 increased fees; deleting a prohibition on additional
7 fees for certain documents; amending s. 48.021, F.S.;
8 providing that criminal witness subpoenas and criminal
9 summonses may be served by a special process server
10 appointed by the local sheriff or by a certified
11 process server; amending s. 48.27, F.S.; providing for
12 the selection of authorized certified process servers
13 to serve such subpoenas and summonses; amending s.
14 56.041, F.S.; providing that all unsatisfied
15 executions in the possession of the sheriff docketed
16 before October 1, 2001, may be returned to the issuing
17 court; amending s. 56.21, F.S.; requiring the
18 submission of an affidavit before levying a judgment
19 upon real property; requiring the sheriff to furnish
20 to the judgment debtor or lienholder, or the debtor’s
21 or lienholder’s attorney of record, a copy of the
22 notice of sale, notice of levy, and affidavit within a
23 specified period before execution of a sale or levy;
24 amending s. 56.27, F.S.; requiring that priority of
25 liens on real property be based on the effective date
26 of the judgment lien for a specified purpose, unless
27 an affidavit discloses that the property is subject to
28 a recorded mortgage, financing statement, tax warrant,
29 or other lien that is junior in priority to the
30 judgment lien; requiring a levying creditor to deliver
31 the affidavit to the sheriff at the time of the levy
32 request setting forth certain information and
33 attestations; requiring certain information to be
34 contained in the certified copy of recordation of
35 lien; amending ss. 741.30 and 784.046, F.S., relating
36 to service of process in cases of domestic violence or
37 sexual abuse; authorizing clerks of the court to
38 transmit facsimile copies of previously certified
39 injunctions to sheriffs upon request; requiring
40 sheriffs to verify receipt of facsimile copies of
41 injunctions with clerks of the court before attempting
42 service; authorizing law enforcement officers to serve
43 facsimile copies of injunctions in the same manner as
44 certified copies; providing an effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Subsections (1) and (4) of section 30.231,
49 Florida Statutes, are amended to read:
50 30.231 Sheriffs' fees for service of summons, subpoenas,
51 and executions.—
52 (1) The sheriffs of all counties of the state in civil
53 cases shall charge fixed, nonrefundable fees for docketing and
54 service of process, according to the following schedule:
55 (a) All summons or writs except executions: $40 $20 for
56 each summons or writ to be served, except when more than one
57 summons or writ is issued at the same time out of the same cause
58 of action to be served upon one person or defendant at the same
59 time, in which case the sheriff shall be entitled to one fee.
60 (b) All writs except executions requiring a levy or seizure
61 of property: $50 in addition to the $40 $20 fee as stated in
62 paragraph (a).
63 (c) Witness subpoenas: $40 $20 for each witness to be
64 served.
65 (d) Executions:
66 1. Forty Twenty dollars for docketing and indexing each
67 writ of execution, regardless of the number of persons involved.
68 2. Fifty dollars for each levy.
69 a. A levy is considered made when any property or any
70 portion of the property listed or unlisted in the instructions
71 for levy is seized, or upon demand of the sheriff the writ is
72 satisfied by the defendant in lieu of seizure. Seizure requires
73 that the sheriff take actual possession, if practicable, or,
74 alternatively, constructive possession of the property by order
75 of the court.
76 b. When the instructions are for levy upon real property, a
77 levy fee is required for each parcel described in the
78 instructions.
79 c. When the instructions are for levy based upon personal
80 property, one fee is allowed, unless the property is seized at
81 different locations, conditional upon all of the items being
82 advertised collectively and the sale being held at a single
83 location. However, if the property seized cannot be sold at one
84 location during the same sale as advertised, but requires
85 separate sales at different locations, the sheriff is then
86 authorized to impose a levy fee for the property and sale at
87 each location.
88 3. Forty Twenty dollars for advertisement of sale under
89 process.
90 4. Forty Twenty dollars for each sale under process.
91 5. Forty Twenty dollars for each deed, bill of sale, or
92 satisfaction of judgment.
93 Fees under this subsection chargeable to the State of Florida or
94 its agencies shall be those fees that were effective under this
95 subsection on June 30, 2009.
96 (4) All fees collected under paragraphs (1)(a), (b), (c),
97 and (d) shall be nonrefundable and shall be earned when each
98 original request or service of process is made, and no
99 additional fees shall be required for alias and pluries
100 documents when service was not effected on the original document
101 in that county by that sheriff.
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, 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 liens, 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, which 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, which 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 reviewed the
249 records of the clerk of the court of the county where the
250 property is situated, or that he or she has performed a title
251 search, and that the information contained in the affidavit,
252 including a disclosure of all judgment liens, mortgages,
253 financing statements, tax warrants, and other liens against the
254 real property, based on that review or title search is true and
255 correct.;
256 (b) The information required under s. 55.203(1) and (2) for
257 each judgment lien certificate indexed under the name of the
258 judgment debtor as to each judgment creditor; the file number
259 assigned to the record of the original and, if any, the second
260 judgment lien; and the date of filing for each judgment lien
261 certificate under s. 55.202 or s. 55.204(3). For each judgment
262 lien recorded on real property, the information contained in the
263 certified copy of recordation of lien under s. 55.10(1) and (2),
264 and for each other lien recorded on real property, the name and
265 address of the lienholder as shown in the copy of the recorded
266 lien disclosed by the title search.; and
267 (c) A statement that the levying creditor either does not
268 have any other levy in process or, if another levy is in
269 process, the levying creditor believes in good faith that the
270 total value of the property under execution does not exceed the
271 amount of outstanding judgments.
272 Section 7. Paragraph (a) of subsection (8) of section
273 741.30, Florida Statutes, is amended to read:
274 741.30 Domestic violence; injunction; powers and duties of
275 court and clerk; petition; notice and hearing; temporary
276 injunction; issuance of injunction; statewide verification
277 system; enforcement.—
278 (8)(a)1. The clerk of the court shall furnish a copy of the
279 petition, financial affidavit, Uniform Child Custody
280 Jurisdiction and Enforcement Act affidavit, if any, notice of
281 hearing, and temporary injunction, if any, to the sheriff or a
282 law enforcement agency of the county where the respondent
283 resides or can be found, who shall serve it upon the respondent
284 as soon thereafter as possible on any day of the week and at any
285 time of the day or night. When requested by the sheriff, the
286 clerk of the court may transmit a facsimile copy of an
287 injunction that has been certified by the clerk of the court,
288 and this facsimile copy may be served in the same manner as a
289 certified copy. Upon receiving a facsimile copy, the sheriff
290 must verify receipt with the sender before attempting to serve
291 it upon the respondent. In addition, if the sheriff is in
292 possession of an injunction for protection that has been
293 certified by the clerk of the court, the sheriff may transmit a
294 facsimile copy of that injunction to a law enforcement officer
295 who shall serve it in the same manner as a certified copy. The
296 clerk of the court shall be responsible for furnishing to the
297 sheriff such information on the respondent's physical
298 description and location as is required by the department to
299 comply with the verification procedures set forth in this
300 section. Notwithstanding any other provision of law to the
301 contrary, the chief judge of each circuit, in consultation with
302 the appropriate sheriff, may authorize a law enforcement agency
303 within the jurisdiction to effect service. A law enforcement
304 agency serving injunctions pursuant to this section shall use
305 service and verification procedures consistent with those of the
306 sheriff.
307 2. When an injunction is issued, if the petitioner requests
308 the assistance of a law enforcement agency, the court may order
309 that an officer from the appropriate law enforcement agency
310 accompany the petitioner and assist in placing the petitioner in
311 possession of the dwelling or residence, or otherwise assist in
312 the execution or service of the injunction. A law enforcement
313 officer shall accept a copy of an injunction for protection
314 against domestic violence, certified by the clerk of the court,
315 from the petitioner and immediately serve it upon a respondent
316 who has been located but not yet served.
317 3. All orders issued, changed, continued, extended, or
318 vacated subsequent to the original service of documents
319 enumerated under subparagraph 1., shall be certified by the
320 clerk of the court and delivered to the parties at the time of
321 the entry of the order. The parties may acknowledge receipt of
322 such order in writing on the face of the original order. In the
323 event a party fails or refuses to acknowledge the receipt of a
324 certified copy of an order, the clerk shall note on the original
325 order that service was effected. If delivery at the hearing is
326 not possible, the clerk shall mail certified copies of the order
327 to the parties at the last known address of each party. Service
328 by mail is complete upon mailing. When an order is served
329 pursuant to this subsection, the clerk shall prepare a written
330 certification to be placed in the court file specifying the
331 time, date, and method of service and shall notify the sheriff.
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 the
345 petition, notice of hearing, and temporary injunction, if any,
346 to the sheriff or a law enforcement agency of the county where
347 the respondent resides or can be found, who shall serve it upon
348 the respondent as soon thereafter as possible on any day of the
349 week and at any time of the day or night. When requested by the
350 sheriff, the clerk of the court may transmit a facsimile copy of
351 an injunction that has been certified by the clerk of the court,
352 and 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 the 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 requests
373 the assistance of a law enforcement agency, the court may order
374 that an officer from the appropriate law enforcement agency
375 accompany the petitioner and assist in the execution or service
376 of the injunction. A law enforcement officer shall accept a copy
377 of an injunction for protection against repeat violence, sexual
378 violence, or dating violence, certified by the clerk of the
379 court, from the petitioner and immediately serve it upon a
380 respondent who has been located but not yet served.
381 Section 9. This act shall take effect July 1, 2009.