Florida Senate - 2009                              CS for SB 412
       
       
       
       By the Committee on Criminal and Civil Justice Appropriations;
       and Senator Crist
       
       
       
       604-05104-09                                           2009412c1
    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         deleting a prohibition on additional fees for certain
    6         documents; exempting the state and its agencies from
    7         increased fees or additional fees required for alias
    8         and pluries; amending s. 48.021, F.S.; providing that
    9         criminal witness subpoenas and criminal summonses may
   10         be served by a special process server appointed by the
   11         local sheriff or by a certified process server;
   12         amending s. 48.27, F.S.; providing for the selection
   13         of authorized certified process servers to serve such
   14         subpoenas and summonses; amending s. 56.041, F.S.;
   15         providing that all unsatisfied executions in the
   16         possession of the sheriff docketed before October 1,
   17         2001, may be returned to the issuing court; amending
   18         s. 56.21, F.S.; requiring the submission of an
   19         affidavit before levying a judgment upon real
   20         property; requiring the sheriff to furnish to the
   21         judgment debtor or lienholder, or the debtor’s or
   22         lienholder’s attorney of record, a copy of the notice
   23         of sale, notice of levy, and affidavit within a
   24         specified period before execution of a sale or levy;
   25         amending s. 56.27, F.S.; requiring that priority of
   26         liens on real property be based on the effective date
   27         of the judgment lien for a specified purpose, unless
   28         an affidavit discloses that the property is subject to
   29         a recorded mortgage, financing statement, tax warrant,
   30         or other lien that is junior in priority to the
   31         judgment lien; requiring a levying creditor to deliver
   32         the affidavit to the sheriff at the time of the levy
   33         request setting forth certain information and
   34         attestations; requiring certain information to be
   35         contained in the certified copy of recordation of
   36         lien; amending ss. 741.30 and 784.046, F.S., relating
   37         to service of process in cases of domestic violence or
   38         sexual abuse; authorizing clerks of the court to
   39         transmit facsimile copies of previously certified
   40         injunctions to sheriffs upon request; requiring
   41         sheriffs to verify receipt of facsimile copies of
   42         injunctions with clerks of the court before attempting
   43         service; authorizing law enforcement officers to serve
   44         facsimile copies of injunctions in the same manner as
   45         certified copies; authorizing a law enforcement
   46         officer to arrest a person suspected of violating a
   47         condition of pretrial release if the original arrest
   48         was for an act of dating violence; amending s. 901.15,
   49         F.S.; conforming provisions to changes made by the
   50         act; providing an effective date.
   51  
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Subsections (1) and (4) of section 30.231,
   55  Florida Statutes, are amended, and subsection (6) is added to
   56  that section, to read:
   57         30.231 Sheriffs’ fees for service of summons, subpoenas,
   58  and executions.—
   59         (1) The sheriffs of all counties of the state in civil
   60  cases shall charge fixed, nonrefundable fees for docketing and
   61  service of process, according to the following schedule:
   62         (a) All summons or writs except executions: $40 $20 for
   63  each summons or writ to be served, except when more than one
   64  summons or writ is issued at the same time out of the same cause
   65  of action to be served upon one person or defendant at the same
   66  time, in which case the sheriff shall be entitled to one fee.
   67         (b) All writs except executions requiring a levy or seizure
   68  of property: $50 in addition to the $40 $20 fee as stated in
   69  paragraph (a).
   70         (c) Witness subpoenas: $40 $20 for each witness to be
   71  served.
   72         (d) Executions:
   73         1. Forty Twenty dollars for docketing and indexing each
   74  writ of execution, regardless of the number of persons involved.
   75         2. Fifty dollars for each levy.
   76         a. A levy is considered made when any property or any
   77  portion of the property listed or unlisted in the instructions
   78  for levy is seized, or upon demand of the sheriff the writ is
   79  satisfied by the defendant in lieu of seizure. Seizure requires
   80  that the sheriff take actual possession, if practicable, or,
   81  alternatively, constructive possession of the property by order
   82  of the court.
   83         b. When the instructions are for levy upon real property, a
   84  levy fee is required for each parcel described in the
   85  instructions.
   86         c. When the instructions are for levy based upon personal
   87  property, one fee is allowed, unless the property is seized at
   88  different locations, conditional upon all of the items being
   89  advertised collectively and the sale being held at a single
   90  location. However, if the property seized cannot be sold at one
   91  location during the same sale as advertised, but requires
   92  separate sales at different locations, the sheriff is then
   93  authorized to impose a levy fee for the property and sale at
   94  each location.
   95         3. Forty Twenty dollars for advertisement of sale under
   96  process.
   97         4. Forty Twenty dollars for each sale under process.
   98         5. Forty Twenty dollars for each deed, bill of sale, or
   99  satisfaction of judgment.
  100         (4) All fees collected under paragraphs (1)(a), (b), (c),
  101  and (d) shall be nonrefundable and shall be earned when each
  102  original request or service of process is made, and no
  103  additional fees shall be required for alias and pluries
  104  documents when service was not effected on the original document
  105  in that county by that sheriff.
  106         (6)Fees under this section chargeable to the state or its
  107  agencies shall be those fees that were effective under this
  108  section on June 30, 2009.
  109         Section 2. Subsection (1) of section 48.021, Florida
  110  Statutes, is amended to read:
  111         48.021 Process; by whom served.—
  112         (1) All process shall be served by the sheriff of the
  113  county where the person to be served is found, except initial
  114  nonenforceable civil process, criminal witness subpoenas, and
  115  criminal summonses may be served by a special process server
  116  appointed by the sheriff as provided for in this section or by a
  117  certified process server as provided for in ss. 48.25-48.31.
  118  Civil witness subpoenas may be served by any person authorized
  119  by rules of civil procedure.
  120         Section 3. Subsection (2) of section 48.27, Florida
  121  Statutes, is amended to read:
  122         48.27 Certified process servers.—
  123         (2)(a) The addition of a person’s name to the list
  124  authorizes him or her to serve initial nonenforceable civil
  125  process on a person found within the circuit where the process
  126  server is certified when a civil action has been filed against
  127  such person in the circuit court or in a county court in the
  128  state. Upon filing an action in circuit or county court, a
  129  person may select from the list for the circuit where the
  130  process is to be served one or more certified process servers to
  131  serve initial nonenforceable civil process.
  132         (b)The addition of a person’s name to the list authorizes
  133  him or her to serve criminal witness subpoenas and criminal
  134  summonses on a person found within the circuit where the process
  135  server is certified. The state in any proceeding or
  136  investigation by a grand jury or any party in a criminal action,
  137  prosecution, or proceeding may select from the list for the
  138  circuit where the process is to be served one or more certified
  139  process servers to serve the subpoena or summons.
  140         Section 4. Subsection (2) of section 56.041, Florida
  141  Statutes, is amended to read:
  142         56.041 Executions; collection and return.—
  143         (2) All unsatisfied executions in the hands of the sheriff
  144  docketed before October 1, 2001, or 20 years after the date of
  145  issuance of final judgment upon which the execution was issued
  146  may be returned, to the court issuing the execution, 20 years
  147  after the date of issuance of final judgment upon which the
  148  execution was issued. Upon such return, the clerk of the court
  149  of issuance shall provide a receipt, to the sheriff submitting
  150  the return, acknowledging the return of the unsatisfied
  151  execution.
  152         Section 5. Section 56.21, Florida Statutes, is amended to
  153  read:
  154         56.21 Execution sales; notice.—Notice of all sales under
  155  execution shall be given by advertisement once each week for 4
  156  successive weeks in a newspaper published in the county in which
  157  the sale is to take place. The time of such notice may be
  158  shortened in the discretion of the court from which the
  159  execution issued, upon affidavit that the property to be sold is
  160  subject to decay and will not sell for its full value if held
  161  until date of sale. On or before the date of the first
  162  publication or posting of the notice of sale, a copy of the
  163  notice of sale shall be furnished by the sheriff by certified
  164  mail to the attorney of record of the judgment debtor, or to the
  165  judgment debtor at the judgment debtor’s last known address if
  166  the judgment debtor does not have an attorney of record. Such
  167  copy of the notice of sale shall be mailed even though a default
  168  judgment was entered. When levying upon real or personal
  169  property, a notice of such levy and execution sale and a copy of
  170  the affidavit required by s. 56.27(4) shall be sent by the
  171  sheriff to the attorneys of record of all judgment creditors and
  172  other lienholders, or to all judgment creditors and other
  173  lienholders who do not have an attorney of record, who have
  174  acquired a judgment lien as provided in s. 55.10(1) and (2), s.
  175  55.202, or s. 55.204(3), or s. 695.01, and whose liens have not
  176  lapsed at the time of levy, at the address listed in the
  177  judgment lien certificate or other recorded liens, or, if
  178  amended, in any amendment thereto to the judgment lien
  179  certificate, and to all secured creditors who have filed
  180  financing statements as provided in part V of chapter 679 in the
  181  name of the judgment debtor reflecting a security interest in
  182  property of the kind to be sold at the execution sale at the
  183  address listed in the financing statement, or, if amended, in
  184  any amendment to the financing statement. Such notice shall be
  185  made in the same manner as notice is made to any judgment debtor
  186  under this section. When levying upon real property, notice of
  187  such levy and execution sale and affidavit required by s.
  188  56.27(4) shall be made to the property owner of record in the
  189  same manner as notice is made to any judgment debtor pursuant to
  190  this section, and shall be made to each other person holding a
  191  mortgage or other lien against the real property as disclosed by
  192  the affidavit. When selling real or personal property, the sale
  193  date shall not be earlier than 30 days after the date of the
  194  first advertisement.
  195         Section 6. Subsections (1), (2), and (4) of section 56.27,
  196  Florida Statutes, are amended to read:
  197         56.27 Executions; payment of money collected.—
  198         (1) All money received under executions shall be paid, in
  199  the order prescribed, to the following: the sheriff, for costs;
  200  the levying creditor in the amount of $500 as liquidated
  201  expenses; and if the levy is upon real property, the first
  202  priority lienholder under s. 55.10(1) and (2), s. 55.10; and if
  203  the levy is upon personal property, the first priority
  204  lienholder under s. 55.202, s. 55.204(3), or s. 55.208(2), as
  205  set forth in an affidavit required by subsection (4), or his or
  206  her attorney, in satisfaction of the judgment lien, if provided
  207  that the judgment lien has not lapsed at the time of the levy.
  208  The receipt of the attorney shall be a release of the officer
  209  paying the money to him or her. If When the name of more than
  210  one attorney appears in the court file, the money shall be paid
  211  to the attorney who originally commenced the action or who made
  212  the original defense unless the file shows that another attorney
  213  has been substituted.
  214         (2)(a)If When property sold under execution brings more
  215  than the amount needed to satisfy the provisions of subsection
  216  (1), the surplus shall be paid in the order of priority to any
  217  judgment lienholders whose judgment liens have not lapsed,
  218  unless the affidavit required by subsection (4) discloses that
  219  the property is also subject to any recorded mortgage, financing
  220  statement, tax warrant, or other lien, other than a judgment
  221  lien, which is junior in priority to the levying creditor’s
  222  judgment lien. For the purpose of the sheriff’s distribution of
  223  the surplus to judgment lienholders under this paragraph,
  224  priority of judgment liens on personal property shall be based
  225  on the effective date of the judgment lien acquired under s.
  226  55.202, s. 55.204(3), or s. 55.208(2), and priority of judgment
  227  liens on real property shall be based on the effective date of
  228  the judgment lien acquired under s. 55.10(1) and (2), as set
  229  forth in an affidavit required under subsection (4). If there is
  230  a surplus after all valid judgment liens and execution liens
  231  have been satisfied under this paragraph, the surplus must be
  232  paid to the owner of the property sold defendant.
  233         (b)If the affidavit required by subsection (4) discloses
  234  that the property is also subject to any recorded mortgage,
  235  financing statement, tax warrant, or other lien, other than a
  236  judgment lien, which is junior in priority to the levying
  237  creditor’s judgment lien, any surplus from the sale of the
  238  property shall be paid over to the registry of the court from
  239  which the execution issued for further proceedings to determine
  240  the priority in which such surplus shall be distributed among
  241  judgment lienholders, other lienholders, and the owner of the
  242  property sold.
  243         (4) Before the date of the first publication or posting of
  244  the notice of sale provided for under s. 56.21, at the time of
  245  the levy request to the sheriff, the levying creditor shall
  246  deliver to the sheriff an affidavit setting forth all of the
  247  following as to the judgment debtor:
  248         (a) For a personal property levy, an attestation by that
  249  the levying creditor or the creditor’s attorney of record that
  250  he or she has reviewed the database or judgment lien records
  251  established in accordance with ss. 55.201-55.209 and that the
  252  information contained in the affidavit based on that review is
  253  true and correct. For a real property levy in accordance with s.
  254  55.10(1) and (2), an attestation by the levying creditor or his
  255  or her attorney of record that he or she has reviewed the
  256  records of the clerk of the court of the county where the
  257  property is situated, or that he or she has performed a title
  258  search, and that the information contained in the affidavit,
  259  including a disclosure of all judgment liens, mortgages,
  260  financing statements, tax warrants, and other liens against the
  261  real property, based on that review or title search is true and
  262  correct.;
  263         (b) The information required under s. 55.203(1) and (2) for
  264  each judgment lien certificate indexed under the name of the
  265  judgment debtor as to each judgment creditor; the file number
  266  assigned to the record of the original and, if any, the second
  267  judgment lien; and the date of filing for each judgment lien
  268  certificate under s. 55.202 or s. 55.204(3). For each judgment
  269  lien recorded on real property, the information contained in the
  270  certified copy of recordation of lien under s. 55.10(1) and (2),
  271  and for each other lien recorded on real property, the name and
  272  address of the lienholder as shown in the copy of the recorded
  273  lien disclosed by the title search.; and
  274         (c) A statement that the levying creditor either does not
  275  have any other levy in process or, if another levy is in
  276  process, the levying creditor believes in good faith that the
  277  total value of the property under execution does not exceed the
  278  amount of outstanding judgments.
  279         Section 7. Paragraph (a) of subsection (8) of section
  280  741.30, Florida Statutes, is amended to read:
  281         741.30 Domestic violence; injunction; powers and duties of
  282  court and clerk; petition; notice and hearing; temporary
  283  injunction; issuance of injunction; statewide verification
  284  system; enforcement.—
  285         (8)(a)1. The clerk of the court shall furnish a copy of the
  286  petition, financial affidavit, Uniform Child Custody
  287  Jurisdiction and Enforcement Act affidavit, if any, notice of
  288  hearing, and temporary injunction, if any, to the sheriff or a
  289  law enforcement agency of the county where the respondent
  290  resides or can be found, who shall serve it upon the respondent
  291  as soon thereafter as possible on any day of the week and at any
  292  time of the day or night. When requested by the sheriff, the
  293  clerk of the court may transmit a facsimile copy of an
  294  injunction that has been certified by the clerk of the court,
  295  and this facsimile copy may be served in the same manner as a
  296  certified copy. Upon receiving a facsimile copy, the sheriff
  297  must verify receipt with the sender before attempting to serve
  298  it upon the respondent. In addition, if the sheriff is in
  299  possession of an injunction for protection that has been
  300  certified by the clerk of the court, the sheriff may transmit a
  301  facsimile copy of that injunction to a law enforcement officer
  302  who shall serve it in the same manner as a certified copy. The
  303  clerk of the court shall be responsible for furnishing to the
  304  sheriff such information on the respondent’s physical
  305  description and location as is required by the department to
  306  comply with the verification procedures set forth in this
  307  section. Notwithstanding any other provision of law to the
  308  contrary, the chief judge of each circuit, in consultation with
  309  the appropriate sheriff, may authorize a law enforcement agency
  310  within the jurisdiction to effect service. A law enforcement
  311  agency serving injunctions pursuant to this section shall use
  312  service and verification procedures consistent with those of the
  313  sheriff.
  314         2. When an injunction is issued, if the petitioner requests
  315  the assistance of a law enforcement agency, the court may order
  316  that an officer from the appropriate law enforcement agency
  317  accompany the petitioner and assist in placing the petitioner in
  318  possession of the dwelling or residence, or otherwise assist in
  319  the execution or service of the injunction. A law enforcement
  320  officer shall accept a copy of an injunction for protection
  321  against domestic violence, certified by the clerk of the court,
  322  from the petitioner and immediately serve it upon a respondent
  323  who has been located but not yet served.
  324         3. All orders issued, changed, continued, extended, or
  325  vacated subsequent to the original service of documents
  326  enumerated under subparagraph 1., shall be certified by the
  327  clerk of the court and delivered to the parties at the time of
  328  the entry of the order. The parties may acknowledge receipt of
  329  such order in writing on the face of the original order. In the
  330  event a party fails or refuses to acknowledge the receipt of a
  331  certified copy of an order, the clerk shall note on the original
  332  order that service was effected. If delivery at the hearing is
  333  not possible, the clerk shall mail certified copies of the order
  334  to the parties at the last known address of each party. Service
  335  by mail is complete upon mailing. When an order is served
  336  pursuant to this subsection, the clerk shall prepare a written
  337  certification to be placed in the court file specifying the
  338  time, date, and method of service and shall notify the sheriff.
  339  
  340  If the respondent has been served previously with the temporary
  341  injunction and has failed to appear at the initial hearing on
  342  the temporary injunction, any subsequent petition for injunction
  343  seeking an extension of time may be served on the respondent by
  344  the clerk of the court by certified mail in lieu of personal
  345  service by a law enforcement officer.
  346         Section 8. Paragraph (a) of subsection (8) and subsection
  347  (13) of section 784.046, Florida Statutes, are amended to read:
  348         784.046 Action by victim of repeat violence, sexual
  349  violence, or dating violence for protective injunction; dating
  350  violence investigations, notice to victims, and reporting;
  351  pretrial release violations.—
  352         (8)(a)1. The clerk of the court shall furnish a copy of the
  353  petition, notice of hearing, and temporary injunction, if any,
  354  to the sheriff or a law enforcement agency of the county where
  355  the respondent resides or can be found, who shall serve it upon
  356  the respondent as soon thereafter as possible on any day of the
  357  week and at any time of the day or night. When requested by the
  358  sheriff, the clerk of the court may transmit a facsimile copy of
  359  an injunction that has been certified by the clerk of the court,
  360  and this facsimile copy may be served in the same manner as a
  361  certified copy. Upon receiving a facsimile copy, the sheriff
  362  must verify receipt with the sender before attempting to serve
  363  it upon the respondent. In addition, if the sheriff is in
  364  possession of an injunction for protection that has been
  365  certified by the clerk of the court, the sheriff may transmit a
  366  facsimile copy of that injunction to a law enforcement officer
  367  who shall serve it in the same manner as a certified copy. The
  368  clerk of the court shall be responsible for furnishing to the
  369  sheriff such information on the respondent’s physical
  370  description and location as is required by the department to
  371  comply with the verification procedures set forth in this
  372  section. Notwithstanding any other provision of law to the
  373  contrary, the chief judge of each circuit, in consultation with
  374  the appropriate sheriff, may authorize a law enforcement agency
  375  within the chief judge’s jurisdiction to effect this type of
  376  service and to receive a portion of the service fee. No person
  377  shall be authorized or permitted to serve or execute an
  378  injunction issued under this section unless the person is a law
  379  enforcement officer as defined in chapter 943.
  380         2. When an injunction is issued, if the petitioner requests
  381  the assistance of a law enforcement agency, the court may order
  382  that an officer from the appropriate law enforcement agency
  383  accompany the petitioner and assist in the execution or service
  384  of the injunction. A law enforcement officer shall accept a copy
  385  of an injunction for protection against repeat violence, sexual
  386  violence, or dating violence, certified by the clerk of the
  387  court, from the petitioner and immediately serve it upon a
  388  respondent who has been located but not yet served.
  389         (13) Whenever a law enforcement officer determines upon
  390  probable cause that an act of dating violence has been committed
  391  within the jurisdiction, or that a person has violated a
  392  condition of pretrial release as provided in s. 903.047 and the
  393  original arrest was for an act of dating violence, the officer
  394  may arrest the person or persons suspected of its commission and
  395  charge such person or persons with the appropriate crime. The
  396  decision to arrest and charge shall not require consent of the
  397  victim or consideration of the relationship of the parties.
  398         Section 9. Subsection (13) of section 901.15, Florida
  399  Statutes, is amended to read:
  400         901.15 When arrest by officer without warrant is lawful.—A
  401  law enforcement officer may arrest a person without a warrant
  402  when:
  403         (13) There is probable cause to believe that the person has
  404  committed an act that violates a condition of pretrial release
  405  provided in s. 903.047 when the original arrest was for an act
  406  of domestic violence as defined in s. 741.28, or when the
  407  original arrest was for an act of dating violence as defined in
  408  s. 784.046.
  409         Section 10. This act shall take effect July 1, 2009.