SB 2116 First Engrossed
20112116e1
1 A bill to be entitled
2 An act relating to the state judicial system; amending
3 s. 27.511, F.S.; authorizing each office of criminal
4 conflict and civil regional counsel to create a
5 direct-support organization; prescribing requirements
6 related to the creation and operation of the direct
7 support organization; amending s. 27.52, F.S.;
8 providing the clerk with the discretion to conduct a
9 review of the county’s property records to confirm
10 indigency; amending s. 27.5304, F.S.; providing for
11 the payment of attorney’s fees that exceed the limits
12 prescribed by law; creating s. 39.8297, F.S.;
13 providing for county funding of additional guardian ad
14 litem personnel; requiring an agreement between the
15 county and the Statewide Guardian Ad Litem Office;
16 specifying responsibility for such positions; amending
17 s. 318.18, F.S.; requiring the clerk of court and the
18 Florida Clerks of Court Operations Corporation to
19 submit reports on local traffic assessments in an
20 electronic format; providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Subsection (10) is added to section 27.511,
25 Florida Statutes, to read:
26 27.511 Offices of criminal conflict and civil regional
27 counsel; legislative intent; qualifications; appointment;
28 duties.—
29 (10) Each office of criminal conflict and civil regional
30 counsel may create a direct-support organization.
31 (a) The direct-support organization must be registered in
32 this state as a nonprofit corporation under chapter 617. The
33 direct-support organization shall be exempt from the filing fees
34 under s. 617.0122.
35 (b) The direct-support organization shall be organized and
36 operated to conduct programs and activities; raise funds;
37 request and receive grants, gifts, and bequests of moneys;
38 acquire, receive, hold, invest, and administer, in its own name,
39 securities, funds, objects of value, or other property, real or
40 personal; and make expenditures to or for the direct or indirect
41 benefit of the office of criminal conflict and civil regional
42 counsel.
43 (c) The direct-support organization shall operate under a
44 written contract with the regional counsel. The written contract
45 must, at a minimum, provide for:
46 1. Approval of the articles of incorporation and bylaws of
47 the organization by the regional counsel.
48 2. Submission of an annual budget for the approval by the
49 regional counsel.
50 3. The reversion without penalty to the office of criminal
51 conflict and civil regional counsel, or to the state if the
52 office ceases to exist, of all moneys and property held in trust
53 by the organization for the office if the organization ceases to
54 exist or if the contract is terminated.
55 4. The fiscal year of the organization, which must begin
56 July 1 of each year and end June 30 of the following year.
57 5. The disclosure of material provisions of the contract
58 and the distinction between the regional counsel and the
59 organization to donors of gifts, contributions, or bequests, as
60 well as on all promotional and fundraising publications.
61 (d) If the regional counsel determines that the direct
62 support organization is operating in a manner that is
63 inconsistent with the goals and purposes of the office of
64 criminal conflict and civil regional counsel or is not acting in
65 the best interest of the state, the regional counsel may
66 terminate the contract, and thereafter the organization may not
67 use the name of the office.
68 (e) The regional counsel shall appoint a board of directors
69 for the direct-support organization. The regional counsel may
70 designate employees of the office of criminal conflict and civil
71 regional counsel to serve on the board of directors. Members of
72 the board shall serve at the pleasure of the regional counsel.
73 (f) The regional counsel:
74 1. May authorize the use of facilities and property other
75 than money which are owned by the office of criminal conflict
76 and civil regional counsel to be used by the direct-support
77 organization.
78 2. May authorize the use of personnel services provided by
79 employees of the office.
80 3. May prescribe the conditions by which the direct-support
81 organization may use property, facilities, or personnel services
82 of the office.
83 4. May not authorize the use of property, facilities, or
84 personnel services of the direct-support organization if the
85 organization does not provide equal employment opportunities to
86 all persons, regardless of race, color, religion, sex, age, or
87 national origin.
88
89 For the purposes of this paragraph, the term “personnel
90 services” includes full-time personnel and part-time personnel
91 as well as payroll processing.
92 (g) Moneys of the direct-support organization may be held
93 in a depository account in the name of the organization which is
94 separate from the accounts of the office, but which is subject
95 to the provisions of the contract with the regional counsel.
96 (h) The direct-support organization shall provide for an
97 annual financial audit in accordance with s. 215.981.
98 (i) The direct-support organization may not exercise any
99 power under s. 617.0302(12) or (16). A state employee may not
100 receive compensation from the organization for service on the
101 board of directors or for services rendered to the organization.
102 Section 2. Paragraph (a) of subsection (2) of section
103 27.52, Florida Statutes, is amended to read:
104 27.52 Determination of indigent status.—
105 (2) DETERMINATION BY THE CLERK.—The clerk of the court
106 shall determine whether an applicant seeking appointment of a
107 public defender is indigent based upon the information provided
108 in the application and the criteria prescribed in this
109 subsection.
110 (a)1. An applicant, including an applicant who is a minor
111 or an adult tax-dependent person, is indigent if the applicant’s
112 income is equal to or below 200 percent of the then-current
113 federal poverty guidelines prescribed for the size of the
114 household of the applicant by the United States Department of
115 Health and Human Services or if the person is receiving
116 Temporary Assistance for Needy Families-Cash Assistance,
117 poverty-related veterans’ benefits, or Supplemental Security
118 Income (SSI).
119 1.2.a. There is a presumption that the applicant is not
120 indigent if the applicant owns, or has equity in, any intangible
121 or tangible personal property or real property or the expectancy
122 of an interest in any such property having a net equity value of
123 $2,500 or more, excluding the value of the person’s homestead
124 and one vehicle having a net value not exceeding $5,000.
125 2.b. Notwithstanding the information that the applicant
126 provides, the clerk may shall conduct a review of the property
127 records for the county in which the applicant resides and the
128 motor vehicle title records of the state to identify any
129 property interests of the applicant under this paragraph
130 subparagraph. The clerk may shall evaluate and consider the
131 results of the review in making a determination under this
132 subsection. If the review is conducted, the clerk shall maintain
133 the results of the review in a file with the application and
134 provide the file to the court if the applicant seeks review
135 under subsection (4) of the clerk’s determination of indigent
136 status.
137 Section 3. Subsection (12) of section 27.5304, Florida
138 Statutes, is amended to read:
139 27.5304 Private court-appointed counsel; compensation.—
140 (12) The Legislature recognizes that on rare occasions an
141 attorney may receive a case that requires extraordinary and
142 unusual effort.
143 (a) If counsel seeks compensation that exceeds the limits
144 prescribed by law under this section and the General
145 Appropriations Act, he or she must file a motion with the chief
146 judge for an order approving payment of attorney’s fees in
147 excess of these limits.
148 1. Before Prior to filing the motion, the counsel shall
149 deliver a copy of the intended billing, together with supporting
150 affidavits and all other necessary documentation, to the Justice
151 Administrative Commission.
152 2. The Justice Administrative Commission shall review the
153 billings, affidavit, and documentation for completeness and
154 compliance with contractual and statutory requirements. If the
155 Justice Administrative Commission objects to any portion of the
156 proposed billing, the objection and reasons therefor shall be
157 communicated in writing to the private court-appointed counsel.
158 The counsel may thereafter file his or her motion, which must
159 specify whether the commission objects to any portion of the
160 billing or the sufficiency of documentation, and shall attach
161 the commission’s letter stating its objection.
162 (b) Following receipt of the motion to exceed the fee
163 limits, the chief judge or a single designee for all such cases,
164 shall hold an evidentiary hearing.
165 1. At the hearing, the attorney seeking compensation must
166 prove by competent and substantial evidence that the case
167 required extraordinary and unusual efforts. The chief judge or
168 designee shall consider criteria such as the number of
169 witnesses, the complexity of the factual and legal issues, and
170 the length of trial. The fact that a trial was conducted in a
171 case does not, by itself, constitute competent substantial
172 evidence of an extraordinary and unusual effort. In a criminal
173 case, relief under this section may not be granted if the number
174 of work hours does not exceed 75 or the number of the state’s
175 witnesses deposed does not exceed 20.
176 2. The chief judge or designee shall enter a written order
177 detailing his or her findings and identifying the extraordinary
178 nature of the time and efforts of the attorney in the case which
179 warrant exceeding the flat fee established by this section and
180 the General Appropriations Act.
181 (c) A copy of the motion and attachments shall be served on
182 the Justice Administrative Commission at least 5 business days
183 before prior to the date of a hearing. The Justice
184 Administrative Commission shall have standing to appear before
185 the court, including at the hearing under paragraph (b), to
186 contest any motion for an order approving payment of attorney’s
187 fees, costs, or related expenses and may participate in a
188 hearing on the motion by use of telephonic or other
189 communication equipment unless ordered otherwise. The Justice
190 Administrative Commission may contract with other public or
191 private entities or individuals to appear before the court for
192 the purpose of contesting any motion for an order approving
193 payment of attorney’s fees, costs, or related expenses. The fact
194 that the Justice Administrative Commission has not objected to
195 any portion of the billing or to the sufficiency of the
196 documentation is not binding on the court.
197 (d) If the chief judge or a single designee finds that
198 counsel has proved by competent and substantial evidence that
199 the case required extraordinary and unusual efforts, the chief
200 judge or designee shall order the compensation to be paid to the
201 attorney at a percentage above the flat fee rate, depending on
202 the extent of the unusual and extraordinary effort required. The
203 percentage must shall be only the rate necessary to ensure that
204 the fees paid are not confiscatory under common law. The
205 percentage may not exceed 200 percent of the established flat
206 fee, absent a specific finding that 200 percent of the flat fee
207 in the case would be confiscatory. If the chief judge or
208 designee determines that 200 percent of the flat fee would be
209 confiscatory, he or she shall order the amount of compensation
210 using an hourly rate not to exceed $75 per hour for a noncapital
211 case and $100 per hour for a capital case. However, the
212 compensation calculated by using the hourly rate shall be only
213 that amount necessary to ensure that the total fees paid are not
214 confiscatory.
215 (e) Any order granting relief under this subsection must be
216 attached to the final request for a payment submitted to the
217 Justice Administrative Commission.
218 (f) For criminal cases only, the payment of fees when the
219 court orders payment in excess of the flat fee established by
220 law, shall be paid as follows:
221 1. The flat fee shall be paid from funds appropriated to
222 the Justice Administrative Commission in the General
223 Appropriations Act.
224 2. The amount ordered by the court in excess of the flat
225 fee shall be paid by the Justice Administrative Commission in a
226 special category designated for that purpose in the General
227 Appropriations Act.
228 3. If, during the fiscal year, all funds designated for
229 payment of the amount ordered by the court in excess of the flat
230 fee are spent, the amount of payments in excess of the flat fee
231 shall be made from the due process funds, or other funds as
232 necessary, appropriated to the state court system in the General
233 Appropriations Act. Funds from the state court system must be
234 used in a manner approved by the Chief Justice and administered
235 by the Trial Court Budget Commission.
236 (g)(f) The Justice Administrative Commission shall provide
237 to the Office of the State Courts Administrator data concerning
238 the number of cases approved for compensation in excess of the
239 limitation and the amount of these awards by circuit and by
240 judge. The office of the State Courts Administrator shall report
241 the data quarterly in an electronic format to the chairs
242 President of the Senate and, the Speaker of the House of
243 Representatives appropriations committees, the Chief Justice of
244 the Supreme Court, and the chief judge of each circuit.
245 Section 4. Section 39.8297, Florida Statutes, is created to
246 read:
247 39.8297 County funding for guardian ad litem personnel.—
248 (1) A county and the executive director of the Statewide
249 Guardian Ad Litem Office may enter into an agreement under which
250 the county agrees to fund personnel positions to assist in the
251 operation of the guardian ad litem program.
252 (2) The agreement, at a minimum, must provide that:
253 (a) Funding for the positions is provided on at least a
254 fiscal-year basis.
255 (b) The personnel whose employment is funded under the
256 agreement are hired, supervised, managed, and fired by personnel
257 of the Statewide Guardian Ad Litem Office. The office shall
258 supervise the personnel whose employment is funded under the
259 agreement; be responsible for compliance with all requirements
260 of federal and state employment laws, including, but not limited
261 to, Title VII of the Civil Rights Act of 1964, Title I of the
262 Americans with Disabilities Act, 42 U.S.C. s. 1983, the Family
263 Medical Leave Act, the Fair Labor Standards Act, chapters 447
264 and 760, and ss. 112.3187, 440.105, and 440.205; and fully
265 indemnify the county from any liability under such laws, as
266 authorized by s. 768.28(19), to the extent such liability is the
267 result of the acts or omissions of the guardian ad litem program
268 or its agents or employees.
269 (c) The county is the employer for the purposes of s.
270 440.10 and chapter 443.
271 (d) Employees funded by the county under this section and
272 other county employees may be aggregated for purposes of a
273 flexible benefits plan pursuant to s. 125 of the Internal
274 Revenue Code of 1986.
275 (e) The positions terminate upon the expiration of, or
276 substantial breach of, the agreement or upon the expiration of
277 county funding for the positions.
278 (3) Positions funded under this section do not count
279 against any formula or similar process used by the Statewide
280 Guardian Ad Litem Office to determine personnel needs or levels
281 of a judicial circuit’s Guardian ad Litem program.
282 (4) This section does not obligate the state to fund any
283 personnel positions.
284 Section 5. Paragraph (b) of subsection (13) of section
285 318.18, Florida Statutes, is amended to read:
286 318.18 Amount of penalties.—The penalties required for a
287 noncriminal disposition pursuant to s. 318.14 or a criminal
288 offense listed in s. 318.17 are as follows:
289 (13)
290 (b) A county may impose a surcharge under subparagraph
291 (a)1., subparagraph(a)2., or subparagraph(a)3., but may not
292 impose more than one surcharge under this subsection. A county
293 may elect to impose a different authorized surcharge but may not
294 impose more than one surcharge at a time. The clerk of court
295 shall report, no later than 30 days after the end of the
296 quarter, the amount of funds collected under this subsection
297 during each quarter of the fiscal year. The clerk shall submit
298 the report, in an electronic a format developed by the Florida
299 Clerks of Court Operations Corporation Office of State Courts
300 Administrator, to the chief judge of the circuit and the Florida
301 Clerks of Court Operations Corporation. The corporation shall
302 submit the report in an electronic format to, the Governor, the
303 President of the Senate, the Speaker of the House of
304 Representatives, and the board of county commissioners.
305 Section 6. This act shall take effect July 1, 2011.