CS for SB 412                                   Second Engrossed
       
       
       
       
       
       
       
       
       2009412e2
       
    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; amending s. 939.185, F.S.; revising provisions
   51         relating to assessment of additional court costs and
   52         surcharges; providing an effective date.
   53  
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Subsections (1) and (4) of section 30.231,
   57  Florida Statutes, are amended, and subsection (6) is added to
   58  that section, to read:
   59         30.231 Sheriffs’ fees for service of summons, subpoenas,
   60  and executions.—
   61         (1) The sheriffs of all counties of the state in civil
   62  cases shall charge fixed, nonrefundable fees for docketing and
   63  service of process, according to the following schedule:
   64         (a) All summons or writs except executions: $40 $20 for
   65  each summons or writ to be served, except when more than one
   66  summons or writ is issued at the same time out of the same cause
   67  of action to be served upon one person or defendant at the same
   68  time, in which case the sheriff shall be entitled to one fee.
   69         (b) All writs except executions requiring a levy or seizure
   70  of property: $50 in addition to the $40 $20 fee as stated in
   71  paragraph (a).
   72         (c) Witness subpoenas: $40 $20 for each witness to be
   73  served.
   74         (d) Executions:
   75         1. Forty Twenty dollars for docketing and indexing each
   76  writ of execution, regardless of the number of persons involved.
   77         2. Fifty dollars for each levy.
   78         a. A levy is considered made when any property or any
   79  portion of the property listed or unlisted in the instructions
   80  for levy is seized, or upon demand of the sheriff the writ is
   81  satisfied by the defendant in lieu of seizure. Seizure requires
   82  that the sheriff take actual possession, if practicable, or,
   83  alternatively, constructive possession of the property by order
   84  of the court.
   85         b. When the instructions are for levy upon real property, a
   86  levy fee is required for each parcel described in the
   87  instructions.
   88         c. When the instructions are for levy based upon personal
   89  property, one fee is allowed, unless the property is seized at
   90  different locations, conditional upon all of the items being
   91  advertised collectively and the sale being held at a single
   92  location. However, if the property seized cannot be sold at one
   93  location during the same sale as advertised, but requires
   94  separate sales at different locations, the sheriff is then
   95  authorized to impose a levy fee for the property and sale at
   96  each location.
   97         3. Forty Twenty dollars for advertisement of sale under
   98  process.
   99         4. Forty Twenty dollars for each sale under process.
  100         5. Forty Twenty dollars for each deed, bill of sale, or
  101  satisfaction of judgment.
  102         (4) All fees collected under paragraphs (1)(a), (b), (c),
  103  and (d) shall be nonrefundable and shall be earned when each
  104  original request or service of process is made, and no
  105  additional fees shall be required for alias and pluries
  106  documents when service was not effected on the original document
  107  in that county by that sheriff.
  108         (6)Fees under this section chargeable to the state or its
  109  agencies shall be those fees that were effective under this
  110  section on June 30, 2009.
  111         Section 2. Subsection (1) of section 48.021, Florida
  112  Statutes, is amended to read:
  113         48.021 Process; by whom served.—
  114         (1) All process shall be served by the sheriff of the
  115  county where the person to be served is found, except initial
  116  nonenforceable civil process, criminal witness subpoenas, and
  117  criminal summonses may be served by a special process server
  118  appointed by the sheriff as provided for in this section or by a
  119  certified process server as provided for in ss. 48.25-48.31.
  120  Civil witness subpoenas may be served by any person authorized
  121  by rules of civil procedure.
  122         Section 3. Subsection (2) of section 48.27, Florida
  123  Statutes, is amended to read:
  124         48.27 Certified process servers.—
  125         (2)(a) The addition of a person’s name to the list
  126  authorizes him or her to serve initial nonenforceable civil
  127  process on a person found within the circuit where the process
  128  server is certified when a civil action has been filed against
  129  such person in the circuit court or in a county court in the
  130  state. Upon filing an action in circuit or county court, a
  131  person may select from the list for the circuit where the
  132  process is to be served one or more certified process servers to
  133  serve initial nonenforceable civil process.
  134         (b)The addition of a person’s name to the list authorizes
  135  him or her to serve criminal witness subpoenas and criminal
  136  summonses on a person found within the circuit where the process
  137  server is certified. The state in any proceeding or
  138  investigation by a grand jury or any party in a criminal action,
  139  prosecution, or proceeding may select from the list for the
  140  circuit where the process is to be served one or more certified
  141  process servers to serve the subpoena or summons.
  142         Section 4. Subsection (2) of section 56.041, Florida
  143  Statutes, is amended to read:
  144         56.041 Executions; collection and return.—
  145         (2) All unsatisfied executions in the hands of the sheriff
  146  docketed before October 1, 2001, or 20 years after the date of
  147  issuance of final judgment upon which the execution was issued
  148  may be returned, to the court issuing the execution, 20 years
  149  after the date of issuance of final judgment upon which the
  150  execution was issued. Upon such return, the clerk of the court
  151  of issuance shall provide a receipt, to the sheriff submitting
  152  the return, acknowledging the return of the unsatisfied
  153  execution.
  154         Section 5. Section 56.21, Florida Statutes, is amended to
  155  read:
  156         56.21 Execution sales; notice.—Notice of all sales under
  157  execution shall be given by advertisement once each week for 4
  158  successive weeks in a newspaper published in the county in which
  159  the sale is to take place. The time of such notice may be
  160  shortened in the discretion of the court from which the
  161  execution issued, upon affidavit that the property to be sold is
  162  subject to decay and will not sell for its full value if held
  163  until date of sale. On or before the date of the first
  164  publication or posting of the notice of sale, a copy of the
  165  notice of sale shall be furnished by the sheriff by certified
  166  mail to the attorney of record of the judgment debtor, or to the
  167  judgment debtor at the judgment debtor’s last known address if
  168  the judgment debtor does not have an attorney of record. Such
  169  copy of the notice of sale shall be mailed even though a default
  170  judgment was entered. When levying upon real or personal
  171  property, a notice of such levy and execution sale and a copy of
  172  the affidavit required by s. 56.27(4) shall be sent by the
  173  sheriff to the attorneys of record of all judgment creditors and
  174  other lienholders, or to all judgment creditors and other
  175  lienholders who do not have an attorney of record, who have
  176  acquired a judgment lien as provided in s. 55.10(1) and (2), s.
  177  55.202, or s. 55.204(3), or s. 695.01, and whose liens have not
  178  lapsed at the time of levy, at the address listed in the
  179  judgment lien certificate or other recorded liens, or, if
  180  amended, in any amendment thereto to the judgment lien
  181  certificate, and to all secured creditors who have filed
  182  financing statements as provided in part V of chapter 679 in the
  183  name of the judgment debtor reflecting a security interest in
  184  property of the kind to be sold at the execution sale at the
  185  address listed in the financing statement, or, if amended, in
  186  any amendment to the financing statement. Such notice shall be
  187  made in the same manner as notice is made to any judgment debtor
  188  under this section. When levying upon real property, notice of
  189  such levy and execution sale and affidavit required by s.
  190  56.27(4) shall be made to the property owner of record in the
  191  same manner as notice is made to any judgment debtor pursuant to
  192  this section, and shall be made to each other person holding a
  193  mortgage or other lien against the real property as disclosed by
  194  the affidavit. When selling real or personal property, the sale
  195  date shall not be earlier than 30 days after the date of the
  196  first advertisement.
  197         Section 6. Subsections (1), (2), and (4) of section 56.27,
  198  Florida Statutes, are amended to read:
  199         56.27 Executions; payment of money collected.—
  200         (1) All money received under executions shall be paid, in
  201  the order prescribed, to the following: the sheriff, for costs;
  202  the levying creditor in the amount of $500 as liquidated
  203  expenses; and if the levy is upon real property, the first
  204  priority lienholder under s. 55.10(1) and (2), s. 55.10; and if
  205  the levy is upon personal property, the first priority
  206  lienholder under s. 55.202, s. 55.204(3), or s. 55.208(2), as
  207  set forth in an affidavit required by subsection (4), or his or
  208  her attorney, in satisfaction of the judgment lien, if provided
  209  that the judgment lien has not lapsed at the time of the levy.
  210  The receipt of the attorney shall be a release of the officer
  211  paying the money to him or her. If When the name of more than
  212  one attorney appears in the court file, the money shall be paid
  213  to the attorney who originally commenced the action or who made
  214  the original defense unless the file shows that another attorney
  215  has been substituted.
  216         (2)(a)If When property sold under execution brings more
  217  than the amount needed to satisfy the provisions of subsection
  218  (1), the surplus shall be paid in the order of priority to any
  219  judgment lienholders whose judgment liens have not lapsed,
  220  unless the affidavit required by subsection (4) discloses that
  221  the property is also subject to any recorded mortgage, financing
  222  statement, tax warrant, or other lien, other than a judgment
  223  lien, which is junior in priority to the levying creditor’s
  224  judgment lien. For the purpose of the sheriff’s distribution of
  225  the surplus to judgment lienholders under this paragraph,
  226  priority of judgment liens on personal property shall be based
  227  on the effective date of the judgment lien acquired under s.
  228  55.202, s. 55.204(3), or s. 55.208(2), and priority of judgment
  229  liens on real property shall be based on the effective date of
  230  the judgment lien acquired under s. 55.10(1) and (2), as set
  231  forth in an affidavit required under subsection (4). If there is
  232  a surplus after all valid judgment liens and execution liens
  233  have been satisfied under this paragraph, the surplus must be
  234  paid to the owner of the property sold defendant.
  235         (b)If the affidavit required by subsection (4) discloses
  236  that the property is also subject to any recorded mortgage,
  237  financing statement, tax warrant, or other lien, other than a
  238  judgment lien, which is junior in priority to the levying
  239  creditor’s judgment lien, any surplus from the sale of the
  240  property shall be paid over to the registry of the court from
  241  which the execution issued for further proceedings to determine
  242  the priority in which such surplus shall be distributed among
  243  judgment lienholders, other lienholders, and the owner of the
  244  property sold.
  245         (4) Before the date of the first publication or posting of
  246  the notice of sale provided for under s. 56.21, at the time of
  247  the levy request to the sheriff, the levying creditor shall
  248  deliver to the sheriff an affidavit setting forth all of the
  249  following as to the judgment debtor:
  250         (a) For a personal property levy, an attestation by that
  251  the levying creditor or the creditor’s attorney of record that
  252  he or she has reviewed the database or judgment lien records
  253  established in accordance with ss. 55.201-55.209 and that the
  254  information contained in the affidavit based on that review is
  255  true and correct. For a real property levy in accordance with s.
  256  55.10(1) and (2), an attestation by the levying creditor or his
  257  or her attorney of record that he or she has reviewed the
  258  records of the clerk of the court of the county where the
  259  property is situated, or that he or she has performed or
  260  reviewed a title search, and that the information contained in
  261  the affidavit, including a disclosure of all judgment liens,
  262  mortgages, financing statements, tax warrants, and other liens
  263  against the real property, based on that review or title search
  264  is true and correct.;
  265         (b) The information required under s. 55.203(1) and (2) for
  266  each judgment lien certificate indexed under the name of the
  267  judgment debtor as to each judgment creditor; the file number
  268  assigned to the record of the original and, if any, the second
  269  judgment lien; and the date of filing for each judgment lien
  270  certificate under s. 55.202 or s. 55.204(3). For each judgment
  271  lien recorded on real property, the information contained in the
  272  certified copy of recordation of lien under s. 55.10(1) and (2),
  273  and for each other lien recorded on real property, the name and
  274  address of the lienholder as shown in the copy of the recorded
  275  lien disclosed by the title search.; and
  276         (c) A statement that the levying creditor either does not
  277  have any other levy in process or, if another levy is in
  278  process, the levying creditor believes in good faith that the
  279  total value of the property under execution does not exceed the
  280  amount of outstanding judgments.
  281         Section 7. Paragraph (a) of subsection (8) of section
  282  741.30, Florida Statutes, is amended to read:
  283         741.30 Domestic violence; injunction; powers and duties of
  284  court and clerk; petition; notice and hearing; temporary
  285  injunction; issuance of injunction; statewide verification
  286  system; enforcement.—
  287         (8)(a)1. The clerk of the court shall furnish a copy of the
  288  petition, financial affidavit, Uniform Child Custody
  289  Jurisdiction and Enforcement Act affidavit, if any, notice of
  290  hearing, and temporary injunction, if any, to the sheriff or a
  291  law enforcement agency of the county where the respondent
  292  resides or can be found, who shall serve it upon the respondent
  293  as soon thereafter as possible on any day of the week and at any
  294  time of the day or night. When requested by the sheriff, the
  295  clerk of the court may transmit a facsimile copy of an
  296  injunction that has been certified by the clerk of the court,
  297  and this facsimile copy may be served in the same manner as a
  298  certified copy. Upon receiving a facsimile copy, the sheriff
  299  must verify receipt with the sender before attempting to serve
  300  it upon the respondent. In addition, if the sheriff is in
  301  possession of an injunction for protection that has been
  302  certified by the clerk of the court, the sheriff may transmit a
  303  facsimile copy of that injunction to a law enforcement officer
  304  who shall serve it in the same manner as a certified copy. The
  305  clerk of the court shall be responsible for furnishing to the
  306  sheriff such information on the respondent’s physical
  307  description and location as is required by the department to
  308  comply with the verification procedures set forth in this
  309  section. Notwithstanding any other provision of law to the
  310  contrary, the chief judge of each circuit, in consultation with
  311  the appropriate sheriff, may authorize a law enforcement agency
  312  within the jurisdiction to effect service. A law enforcement
  313  agency serving injunctions pursuant to this section shall use
  314  service and verification procedures consistent with those of the
  315  sheriff.
  316         2. When an injunction is issued, if the petitioner requests
  317  the assistance of a law enforcement agency, the court may order
  318  that an officer from the appropriate law enforcement agency
  319  accompany the petitioner and assist in placing the petitioner in
  320  possession of the dwelling or residence, or otherwise assist in
  321  the execution or service of the injunction. A law enforcement
  322  officer shall accept a copy of an injunction for protection
  323  against domestic violence, certified by the clerk of the court,
  324  from the petitioner and immediately serve it upon a respondent
  325  who has been located but not yet served.
  326         3. All orders issued, changed, continued, extended, or
  327  vacated subsequent to the original service of documents
  328  enumerated under subparagraph 1., shall be certified by the
  329  clerk of the court and delivered to the parties at the time of
  330  the entry of the order. The parties may acknowledge receipt of
  331  such order in writing on the face of the original order. In the
  332  event a party fails or refuses to acknowledge the receipt of a
  333  certified copy of an order, the clerk shall note on the original
  334  order that service was effected. If delivery at the hearing is
  335  not possible, the clerk shall mail certified copies of the order
  336  to the parties at the last known address of each party. Service
  337  by mail is complete upon mailing. When an order is served
  338  pursuant to this subsection, the clerk shall prepare a written
  339  certification to be placed in the court file specifying the
  340  time, date, and method of service and shall notify the sheriff.
  341  
  342  If the respondent has been served previously with the temporary
  343  injunction and has failed to appear at the initial hearing on
  344  the temporary injunction, any subsequent petition for injunction
  345  seeking an extension of time may be served on the respondent by
  346  the clerk of the court by certified mail in lieu of personal
  347  service by a law enforcement officer.
  348         Section 8. Paragraph (a) of subsection (8) and subsection
  349  (13) of section 784.046, Florida Statutes, are amended to read:
  350         784.046 Action by victim of repeat violence, sexual
  351  violence, or dating violence for protective injunction; dating
  352  violence investigations, notice to victims, and reporting;
  353  pretrial release violations.—
  354         (8)(a)1. The clerk of the court shall furnish a copy of the
  355  petition, notice of hearing, and temporary injunction, if any,
  356  to the sheriff or a law enforcement agency of the county where
  357  the respondent resides or can be found, who shall serve it upon
  358  the respondent as soon thereafter as possible on any day of the
  359  week and at any time of the day or night. When requested by the
  360  sheriff, the clerk of the court may transmit a facsimile copy of
  361  an injunction that has been certified by the clerk of the court,
  362  and this facsimile copy may be served in the same manner as a
  363  certified copy. Upon receiving a facsimile copy, the sheriff
  364  must verify receipt with the sender before attempting to serve
  365  it upon the respondent. In addition, if the sheriff is in
  366  possession of an injunction for protection that has been
  367  certified by the clerk of the court, the sheriff may transmit a
  368  facsimile copy of that injunction to a law enforcement officer
  369  who shall serve it in the same manner as a certified copy. The
  370  clerk of the court shall be responsible for furnishing to the
  371  sheriff such information on the respondent’s physical
  372  description and location as is required by the department to
  373  comply with the verification procedures set forth in this
  374  section. Notwithstanding any other provision of law to the
  375  contrary, the chief judge of each circuit, in consultation with
  376  the appropriate sheriff, may authorize a law enforcement agency
  377  within the chief judge’s jurisdiction to effect this type of
  378  service and to receive a portion of the service fee. No person
  379  shall be authorized or permitted to serve or execute an
  380  injunction issued under this section unless the person is a law
  381  enforcement officer as defined in chapter 943.
  382         2. When an injunction is issued, if the petitioner requests
  383  the assistance of a law enforcement agency, the court may order
  384  that an officer from the appropriate law enforcement agency
  385  accompany the petitioner and assist in the execution or service
  386  of the injunction. A law enforcement officer shall accept a copy
  387  of an injunction for protection against repeat violence, sexual
  388  violence, or dating violence, certified by the clerk of the
  389  court, from the petitioner and immediately serve it upon a
  390  respondent who has been located but not yet served.
  391         (13) Whenever a law enforcement officer determines upon
  392  probable cause that an act of dating violence has been committed
  393  within the jurisdiction, or that a person has violated a
  394  condition of pretrial release as provided in s. 903.047 and the
  395  original arrest was for an act of dating violence, the officer
  396  may arrest the person or persons suspected of its commission and
  397  charge such person or persons with the appropriate crime. The
  398  decision to arrest and charge shall not require consent of the
  399  victim or consideration of the relationship of the parties.
  400         Section 9. Subsection (13) of section 901.15, Florida
  401  Statutes, is amended to read:
  402         901.15 When arrest by officer without warrant is lawful.—A
  403  law enforcement officer may arrest a person without a warrant
  404  when:
  405         (13) There is probable cause to believe that the person has
  406  committed an act that violates a condition of pretrial release
  407  provided in s. 903.047 when the original arrest was for an act
  408  of domestic violence as defined in s. 741.28, or when the
  409  original arrest was for an act of dating violence as defined in
  410  s. 784.046.
  411         Section 10. Paragraph (d) is added to subsection (1) of
  412  section 939.185, Florida Statutes, to read:
  413         939.185 Assessment of additional court costs and
  414  surcharges.—
  415         (1)
  416         (d) The clerk of court shall cause a certified copy of the
  417  court order imposing such costs to be recorded in the public
  418  records. Such record shall constitute a lien against the person
  419  upon whom the costs are imposed and shall attach as a lien on
  420  any real and personal property owned by such person. A lien
  421  created under this paragraph does not attach to, or make subject
  422  to execution of levy or foreclosure, any real or personal
  423  property otherwise exempt under s. 4, Art. X of the State
  424  Constitution. A lien created under this paragraph is enforceable
  425  in the same manner as provided by law.
  426         Section 11. This act shall take effect July 1, 2009.