Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 1508
       
       
       
       
       
       
                                Barcode 965206                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/26/2011           .                                
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       The Committee on Judiciary (Joyner) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Section 28.246, Florida Statutes, is amended to
    7  read:
    8         28.246 Payment of court-related fees, charges, and costs,
    9  costs of prosecution, and costs of defense; partial payments;
   10  distribution of funds.—
   11         (1) The clerk of the circuit court shall report the
   12  following information to the Legislature and the Florida Clerks
   13  of Court Operations Corporation on a form developed by the
   14  Department of Financial Services:
   15         (a) The total amount of mandatory fees, service charges,
   16  and costs; the total amount actually assessed; the total amount
   17  discharged, waived, or otherwise not assessed; and the total
   18  amount collected.
   19         (b) The amount of discretionary fees, service charges, and
   20  costs assessed; the total amount discharged; and the total
   21  amount collected.
   22         (c) The total amount of mandatory fines and other monetary
   23  penalties; the total amount assessed; the total amount
   24  discharged, waived, or otherwise not assessed; and the total
   25  amount collected.
   26         (d) The amount of discretionary fines and other monetary
   27  penalties assessed; the amount discharged; and the total amount
   28  collected.
   29  
   30  If provided to the clerk of court by the judge, the clerk, in
   31  reporting the amount assessed, shall separately identify the
   32  amount assessed pursuant to s. 938.30 as community service;
   33  assessed by reducing the amount to a judgment or lien; satisfied
   34  by time served; or other. The form developed by the Chief
   35  Financial Officer shall include separate entries for recording
   36  these amounts. The clerk shall submit the report on an annual
   37  basis 60 days after the end of the county fiscal year.
   38         (2) The clerk of the circuit court shall establish and
   39  maintain a system of accounts receivable for court-related fees,
   40  charges, and costs.
   41         (3) Court costs, fines, and other dispositional assessments
   42  shall be enforced by order of the courts, collected by the
   43  clerks of the circuit and county courts, and disbursed in
   44  accordance with authorizations and procedures as established by
   45  general law.
   46         (4) The clerk of the circuit court shall accept partial
   47  payments for court-related fees, service charges, costs, and
   48  fines in accordance with the terms of an established payment
   49  plan. An individual seeking to defer payment of fees, service
   50  charges, costs, or fines imposed by operation of law or order of
   51  the court under any provision of general law shall apply to the
   52  clerk for enrollment in a payment plan. The clerk shall enter
   53  into a payment plan with an individual who the court determines
   54  is indigent for costs. A monthly payment amount, calculated
   55  based upon all fees and all anticipated costs, is presumed to
   56  correspond to the person’s ability to pay if the amount does not
   57  exceed 2 percent of the person’s annual net income, as defined
   58  in s. 27.52(1), divided by 12. The court may review the
   59  reasonableness of the payment plan.
   60         (5) When receiving partial payment of fees, service
   61  charges, court costs, costs of prosecution, costs of defense,
   62  and fines, clerks shall distribute funds according to the
   63  following order of priority:
   64         (a) That portion of fees, service charges, court costs, and
   65  fines to be remitted to the state for deposit into the General
   66  Revenue Fund.
   67         (b) That portion of fees, service charges, court costs, and
   68  fines which are required to be retained by the clerk of the
   69  court or deposited into the Clerks of the Court Trust Fund
   70  within the Justice Administrative Commission.
   71         (c) That portion of the costs of prosecution to be remitted
   72  to the state shall be deposited into the State Attorneys Revenue
   73  Trust Fund, allocated on a pro rata basis among the authorized
   74  funds if the total collection amount is insufficient to fully
   75  fund such funds as provided by law.
   76         (d) That portion of the costs of defense to be remitted to
   77  the state shall be deposited into the Indigent Criminal Defense
   78  Trust Fund, allocated on a pro rata basis among the authorized
   79  funds if the total collection amount is insufficient to fully
   80  fund such funds are provided by law.
   81         (e)(c) That portion of fees, service charges, court costs,
   82  and fines payable to state trust funds, allocated on a pro rata
   83  basis among the various authorized funds if the total collection
   84  amount is insufficient to fully fund all such funds as provided
   85  by law.
   86         (f)(d) That portion of fees, service charges, court costs,
   87  and fines payable to counties, municipalities, or other local
   88  entities, allocated on a pro rata basis among the various
   89  authorized recipients if the total collection amount is
   90  insufficient to fully fund all such recipients as provided by
   91  law.
   92  
   93  To offset processing costs, clerks may impose either a per-month
   94  service charge pursuant to s. 28.24(26)(b) or a one-time
   95  administrative processing service charge at the inception of the
   96  payment plan pursuant to s. 28.24(26)(c).
   97         (6) A clerk of court shall pursue the collection of any
   98  fees, service charges, fines, costs of prosecution, costs of
   99  defense, court costs, and liens for the payment of attorney’s
  100  fees and costs pursuant to s. 938.29 which remain unpaid after
  101  90 days by referring the account to a private attorney who is a
  102  member in good standing of The Florida Bar or collection agent
  103  who is registered and in good standing pursuant to chapter 559.
  104  In pursuing the collection of such unpaid financial obligations
  105  through a private attorney or collection agent, the clerk of the
  106  court must have attempted to collect the unpaid amount through a
  107  collection court, collections docket, or other collections
  108  process, if any, established by the court, find this to be cost
  109  effective and follow any applicable procurement practices. The
  110  collection fee, including any reasonable attorney’s fee, paid to
  111  any attorney or collection agent retained by the clerk may be
  112  added to the balance owed in an amount not to exceed 40 percent
  113  of the amount owed at the time the account is referred to the
  114  attorney or agent for collection. The clerk shall give the
  115  private attorney or collection agent the application for the
  116  appointment of court-appointed counsel regardless of whether the
  117  court file is otherwise confidential from disclosure.
  118         Section 2. Section 903.286, Florida Statutes, is amended to
  119  read:
  120         903.286 Return of cash bond; requirement to withhold unpaid
  121  fines, fees, court costs, costs of prosecution, costs of
  122  defense; cash bond forms.—
  123         (1) Notwithstanding s. 903.31(2), the clerk of the court
  124  shall withhold from the return of a cash bond posted on behalf
  125  of a criminal defendant by a person other than a bail bond agent
  126  licensed pursuant to chapter 648 sufficient funds to pay any
  127  unpaid court fees, court costs, costs of prosecution, costs of
  128  defense, and criminal penalties. If sufficient funds are not
  129  available to pay all unpaid court fees, court costs, costs of
  130  prosecution, costs of defense, and criminal penalties, the clerk
  131  of the court shall immediately obtain payment from the defendant
  132  or enroll the defendant in a payment plan pursuant to s. 28.246.
  133         (2) All cash bond forms used in conjunction with the
  134  requirements of s. 903.09 must prominently display a notice
  135  explaining that all funds are subject to forfeiture and
  136  withholding by the clerk of the court for the payment of court
  137  fees, court costs, costs of prosecution, costs of defense, and
  138  criminal penalties on behalf of the criminal defendant
  139  regardless of who posted the funds.
  140         Section 3. Section 938.27, Florida Statutes, is amended to
  141  read:
  142         938.27 Judgment for costs on conviction or diversion.—
  143         (1) In all criminal and violation-of-probation or
  144  community-control cases, convicted persons and persons whose
  145  cases are disposed of pursuant to s. 948.08 or s. 948.16 are
  146  liable for payment of the costs of prosecution, costs of
  147  defense, including investigative costs incurred by law
  148  enforcement agencies, by fire departments for arson
  149  investigations, and by investigations of the Department of
  150  Financial Services or the Office of Financial Regulation of the
  151  Financial Services Commission, if requested by such agencies.
  152  The court shall include these costs in every judgment rendered
  153  against the convicted person. For purposes of this section,
  154  “convicted” means a determination of guilt, or of violation of
  155  probation or community control, which is a result of a plea,
  156  trial, or violation proceeding, regardless of whether
  157  adjudication is withheld.
  158         (2) Notwithstanding any other law, court rule, or
  159  administrative order, the court shall impose the costs of
  160  prosecution, defense, and investigation on the defendant. The
  161  costs of prosecution, defense, and investigation may not be
  162  converted to any form of court-ordered community service in lieu
  163  of this financial obligation.
  164         (a) The court shall impose the costs of prosecution,
  165  defense, and investigation notwithstanding the defendant’s
  166  present ability to pay. The court shall require the defendant to
  167  pay the costs within a specified period or in specified
  168  installments.
  169         (b) The end of such period or the last such installment may
  170  shall not be later than:
  171         1. The end of the period of probation or community control,
  172  if probation or community control is ordered;
  173         2. Five years after the end of the term of imprisonment
  174  imposed, if the court does not order probation or community
  175  control; or
  176         3. Five years after the date of sentencing in any other
  177  case.
  178  
  179  However, in no event shall the obligation to pay any unpaid
  180  amounts expire if not paid in full within the period specified
  181  in this paragraph.
  182         (c) If not otherwise provided by the court under this
  183  section, costs shall be paid immediately.
  184         (3) If a defendant is placed on probation or community
  185  control, payment of any costs under this section shall be a
  186  condition of such probation or community control. The court may
  187  revoke probation or community control if the defendant fails to
  188  pay these costs.
  189         (4) Any dispute as to the proper amount or type of costs
  190  shall be resolved by the court by the preponderance of the
  191  evidence. The burden of demonstrating the amount of costs
  192  incurred is on the state attorney. The burden of demonstrating
  193  the financial resources of the defendant and the financial needs
  194  of the defendant is on the defendant. The burden of
  195  demonstrating such other matters as the court deems appropriate
  196  is upon the party designated by the court as justice requires.
  197         (5) Any default in payment of costs may be collected by any
  198  means authorized by law for enforcement of a judgment.
  199         (6) The clerk of the court shall collect and dispense cost
  200  payments in any case, regardless of whether the disposition of
  201  the case takes place before the judge in open court or in any
  202  other manner provided by law.
  203         (7) Investigative costs that are recovered shall be
  204  returned to the appropriate investigative agency that incurred
  205  the expense. Such costs include actual expenses incurred in
  206  conducting the investigation and prosecution of the criminal
  207  case; however, costs may also include the salaries of permanent
  208  employees. Any investigative costs recovered on behalf of a
  209  state agency must be remitted to the Department of Revenue for
  210  deposit in the agency operating trust fund, and a report of the
  211  payment must be sent to the agency, except that any
  212  investigative costs recovered on behalf of the Department of Law
  213  Enforcement shall be deposited in the department’s Forfeiture
  214  and Investigative Support Trust Fund under s. 943.362.
  215         (8) Costs for the state attorney shall be set in all cases
  216  at no less than $50 per case when a misdemeanor or criminal
  217  traffic offense is charged and no less than $100 per case when a
  218  felony offense is charged, including a proceeding in which the
  219  underlying offense is a violation of probation or community
  220  control. The court may set a higher amount upon a showing of
  221  sufficient proof of higher costs incurred. Costs recovered on
  222  behalf of the state attorney under this section shall be
  223  deposited into the State Attorneys Revenue Trust Fund to be used
  224  during the fiscal year in which the funds are collected, or in
  225  any subsequent fiscal year, for actual expenses incurred in
  226  investigating and prosecuting criminal cases, which may include
  227  the salaries of permanent employees, or for any other purpose
  228  authorized by the Legislature.
  229         Section 4. Section 985.032, Florida Statutes, is amended to
  230  read:
  231         985.032 Legal representation for delinquency cases.—
  232         (1) For cases arising under this chapter, the state
  233  attorney shall represent the state.
  234         (2) A juvenile who is adjudicated delinquent or who has
  235  adjudication of delinquency withheld shall be assessed the costs
  236  of prosecution as provided in s. 938.27 and the costs of defense
  237  as provided in s. 938.29.
  238         Section 5. For the purpose of incorporating the amendment
  239  made by this act to s. 28.246, Florida Statutes, in a reference
  240  thereto, subsection (1) of s. 34.191, Florida Statutes, is
  241  reenacted to read:
  242         34.191 Fines and forfeitures; dispositions.—
  243         (1) All fines and forfeitures arising from offenses tried
  244  in the county court shall be collected and accounted for by the
  245  clerk of the court and, other than the charge provided in s.
  246  318.1215, disbursed in accordance with ss. 28.2402, 34.045,
  247  142.01, and 142.03 and subject to the provisions of s. 28.246(5)
  248  and (6). Notwithstanding the provisions of this section, all
  249  fines and forfeitures arising from operation of the provisions
  250  of s. 318.1215 shall be disbursed in accordance with that
  251  section.
  252         Section 6. This act shall take effect July 1, 2011.
  253  
  254  ================= T I T L E  A M E N D M E N T ================
  255         And the title is amended as follows:
  256         Delete everything before the enacting clause
  257  and insert:
  258                        A bill to be entitled                      
  259         An act relating to the costs of prosecution and costs
  260         of defense; amending s. 28.246, F.S.; requiring the
  261         clerk of the court to distribute the funds received
  262         from a defendant according to a specified order of
  263         priority when the defendant makes a partial payment to
  264         the clerk of costs of prosecution and defense;
  265         requiring that a portion of the costs of prosecution
  266         be deposited into the State Attorneys Revenue Trust
  267         Fund; requiring that a portion of the costs of defense
  268         be deposited into the Indigent Criminal Defense Trust
  269         Fund; amending s. 903.286, F.S.; requiring the clerk
  270         of the court to withhold from the return of a cash
  271         bond sufficient funds to pay unpaid costs, including
  272         the costs of prosecution and defense; amending s.
  273         938.27, F.S.; imposing certain costs on persons whose
  274         cases are disposed of under a pretrial intervention
  275         program or pretrial substance abuse intervention
  276         program; requiring the court to impose the costs of
  277         prosecution, defense, and investigation on the
  278         defendant; prohibiting the court from converting such
  279         costs to court-ordered community service; amending s.
  280         985.032,F.S.; requiring that a juvenile who is
  281         adjudicated delinquent or has adjudication of
  282         delinquency withheld be assessed costs of prosecution
  283         and defense; reenacting s. 34.191(1), F.S., relating
  284         to the disposition of fines and forfeitures, to
  285         incorporate the amendment made to s. 28.246, F.S., in
  286         a reference thereto; providing an effective date.