ENROLLED
2009 Legislature CS for SB 412, 2nd Engrossed
2009412er
1
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.