Florida Senate - 2012 SB 1960
By the Committee on Budget
576-03469-12 20121960__
1 A bill to be entitled
2 An act relating to the state judicial system; amending
3 s. 27.511, F.S.; revising the procedures by which a
4 regional conflict counsel is appointed by the
5 Governor; requiring each regional counsel to designate
6 a chief assistant to serve if the regional counsel is
7 unable to fulfill his or her responsibilities or until
8 a replacement is appointed; amending s. 27.52, F.S.;
9 authorizing the clerk to conduct a review of the
10 county’s property records to confirm that an applicant
11 seeking appointment of a public defender is indigent;
12 amending s. 27.5304, F.S.; revising procedures for
13 court-appointed counsel who apply for compensation for
14 casework when the attorney fees exceed the limits of
15 compensation prescribed by law; providing procedures
16 to be applied in criminal cases if the court orders
17 payment in excess of the flat fee established by law;
18 amending s. 39.8296, F.S.; authorizing court-appointed
19 volunteers to transport children who are abused,
20 abandoned, or neglected; prohibiting a guardian ad
21 litem program or the court from requiring that
22 volunteers transport children; creating s. 39.8297,
23 F.S.; authorizing a county and the Statewide Guardian
24 Ad Litem Office to enter into an agreement whereby the
25 county provides funding to the office in order to
26 employ additional guardian ad litem personnel to serve
27 in the county; requiring an agreement between the
28 county and the Statewide Guardian Ad Litem Office;
29 specifying the duties and responsibilities of the
30 county and the participating guardian ad litem office;
31 prohibiting the Statewide Guardian Ad Litem Office
32 from using county-paid positions in a formula to
33 measure the county’s need for additional guardian ad
34 litem personnel; providing that an agreement between
35 the county and the office does not obligate the state
36 to provide additional funds to the county; amending s.
37 318.18, F.S.; requiring the clerk of court and the
38 Florida Clerks of Court Operations Corporation to
39 submit reports on local traffic assessments in an
40 electronic format; providing an effective date.
41
42 Be It Enacted by the Legislature of the State of Florida:
43
44 Section 1. Subsection (3) of section 27.511, Florida
45 Statutes, is amended to read:
46 27.511 Offices of criminal conflict and civil regional
47 counsel; legislative intent; qualifications; appointment;
48 duties.—
49 (3)(a) Each regional counsel must be, and must have been
50 for the preceding 5 years, a member in good standing of The
51 Florida Bar or a similar organization in another state. Each
52 regional counsel shall be appointed by the Governor and is
53 subject to confirmation by the Senate. The Supreme Court
54 Judicial Nominating Commission shall recommend to the Governor
55 not fewer than three or more than six qualified candidates for
56 appointment to each of the five regional counsel positions.
57 Unless the current regional counsel has been removed from office
58 or is otherwise no longer qualified, a current regional counsel
59 who has reapplied shall have his or her name included in the
60 list of nominees submitted to the Governor for consideration.
61 The Governor shall appoint the regional counsel for the five
62 regions from among the recommendations, or, if it is in the best
63 interest of the fair administration of justice, the Governor may
64 reject the nominations and request that the Supreme Court
65 Judicial Nominating Commission submit three new nominees. The
66 regional counsel shall be appointed to a term of 4 years, the
67 first term beginning on October 1, 2015 July 1, 2007. Vacancies
68 shall be filled in the same manner provided in paragraph (b) as
69 appointments.
70 (b) Each regional counsel shall designate a chief assistant
71 who shall be charged with fulfilling the duties of regional
72 counsel if the regional counsel is legally unable to carry out
73 the duties of the office or until such time as the Governor
74 appoints a replacement in the manner prescribed in paragraph
75 (a).
76 Section 2. Paragraph (a) of subsection (2) of section
77 27.52, Florida Statutes, is amended to read:
78 27.52 Determination of indigent status.—
79 (2) DETERMINATION BY THE CLERK.—The clerk of the court
80 shall determine whether an applicant seeking appointment of a
81 public defender is indigent based upon the information provided
82 in the application and the criteria prescribed in this
83 subsection.
84 (a)1. An applicant, including an applicant who is a minor
85 or an adult tax-dependent person, is indigent if the applicant’s
86 income is equal to or below 200 percent of the then-current
87 federal poverty guidelines prescribed for the size of the
88 household of the applicant by the United States Department of
89 Health and Human Services or if the person is receiving
90 Temporary Assistance for Needy Families-Cash Assistance,
91 poverty-related veterans’ benefits, or Supplemental Security
92 Income (SSI).
93 1.2.a. There is a presumption that the applicant is not
94 indigent if the applicant owns, or has equity in, any intangible
95 or tangible personal property or real property or the expectancy
96 of an interest in any such property having a net equity value of
97 $2,500 or more, excluding the value of the person’s homestead
98 and one vehicle having a net value not exceeding $5,000.
99 2.b. Notwithstanding the information that the applicant
100 provides, the clerk may shall conduct a review of the property
101 records for the county in which the applicant resides and the
102 motor vehicle title records of the state to identify any
103 property interests of the applicant under this paragraph
104 subparagraph. The clerk may shall evaluate and consider the
105 results of the review in making a determination under this
106 subsection. If the review is conducted, the clerk shall maintain
107 the results of the review in a file with the application and
108 provide the file to the court if the applicant seeks review
109 under subsection (4) of the clerk’s determination of indigent
110 status.
111 Section 3. Subsection (12) of section 27.5304, Florida
112 Statutes, is amended to read:
113 27.5304 Private court-appointed counsel; compensation.—
114 (12) The Legislature recognizes that on rare occasions an
115 attorney may receive a case that requires extraordinary and
116 unusual effort.
117 (a) If counsel seeks compensation that exceeds the limits
118 prescribed by law under this section and the General
119 Appropriations Act, he or she must file a motion with the chief
120 judge for an order approving payment of attorney attorney’s fees
121 in excess of these limits.
122 1. Before Prior to filing the motion, the counsel shall
123 deliver a copy of the intended billing, together with supporting
124 affidavits and all other necessary documentation, to the Justice
125 Administrative Commission.
126 2. The Justice Administrative Commission shall review the
127 billings, affidavit, and documentation for completeness and
128 compliance with contractual and statutory requirements. If the
129 Justice Administrative Commission objects to any portion of the
130 proposed billing, the objection and supporting reasons must
131 therefor shall be communicated in writing to the private court
132 appointed counsel. The counsel may thereafter file his or her
133 motion, which must specify whether the commission objects to any
134 portion of the billing or the sufficiency of documentation, and
135 shall attach the commission’s letter stating its objection.
136 (b) Following receipt of the motion to exceed the fee
137 limits, the chief judge or a designee shall hold an evidentiary
138 hearing.
139 1. At the hearing, the attorney seeking compensation must
140 prove by competent and substantial evidence that the case
141 required extraordinary and unusual efforts. The chief judge or
142 designee shall consider criteria such as the number of
143 witnesses, the complexity of the factual and legal issues, and
144 the length of trial. The fact that a trial was conducted in a
145 case does not, by itself, constitute competent substantial
146 evidence of an extraordinary and unusual effort. In a criminal
147 case, relief under this section may not be granted if the number
148 of work hours does not exceed 75 or the number of the state’s
149 witnesses deposed does not exceed 20.
150 2. The chief judge or designee shall enter a written order
151 detailing his or her findings and identifying the extraordinary
152 nature of the time and efforts of the attorney in the case which
153 warrant exceeding the flat fee established by this section and
154 the General Appropriations Act.
155 (c) A copy of the motion and attachments shall be served on
156 the Justice Administrative Commission at least 5 business days
157 before prior to the date of a hearing. The Justice
158 Administrative Commission has shall have standing to appear
159 before the court, including at the hearing under paragraph (b),
160 to contest any motion for an order approving payment of
161 attorney’s fees, costs, or related expenses and may participate
162 in a hearing on the motion by use of telephonic or other
163 communication equipment unless ordered otherwise. The Justice
164 Administrative Commission may contract with other public or
165 private entities or individuals to appear before the court for
166 the purpose of contesting any motion for an order approving
167 payment of attorney’s fees, costs, or related expenses. The fact
168 that the Justice Administrative Commission has not objected to
169 any portion of the billing or to the sufficiency of the
170 documentation is not binding on the court.
171 (d) If the chief judge or a single designee finds that
172 counsel has proved by competent and substantial evidence that
173 the case required extraordinary and unusual efforts, the chief
174 judge or designee shall order the compensation to be paid to the
175 attorney at a percentage above the flat fee rate, depending on
176 the extent of the unusual and extraordinary effort required. The
177 percentage must shall be only the rate necessary to ensure that
178 the fees paid are not confiscatory under common law. The
179 percentage may not exceed 200 percent of the established flat
180 fee, absent a specific finding that 200 percent of the flat fee
181 in the case would be confiscatory. If the chief judge or
182 designee determines that 200 percent of the flat fee would be
183 confiscatory, he or she shall order the amount of compensation
184 using an hourly rate not to exceed $75 per hour for a noncapital
185 case and $100 per hour for a capital case. However, the
186 compensation calculated by using the hourly rate shall be only
187 that amount necessary to ensure that the total fees paid are not
188 confiscatory.
189 (e) Any order granting relief under this subsection must be
190 attached to the final request for a payment submitted to the
191 Justice Administrative Commission.
192 (f) For criminal cases only if the court orders payment in
193 excess of the flat fee established by law, fees shall be paid as
194 follows:
195 1. The flat fee shall be paid from funds appropriated to
196 the Justice Administrative Commission in the General
197 Appropriations Act.
198 2. The amount ordered by the court in excess of the flat
199 fee shall be paid by the Justice Administrative Commission in a
200 special category designated for that purpose in the General
201 Appropriations Act.
202 3. If, during the fiscal year, all funds designated for
203 payment of the amount ordered by the court in excess of the flat
204 fee are spent, the amount of payments in excess of the flat fee
205 shall be made from the due process funds, or other funds as
206 necessary, appropriated to the state court system in the General
207 Appropriations Act. Funds from the state court system must be
208 used in a manner approved by the Chief Justice and administered
209 by the Trial Court Budget Commission.
210 (g)(f) The Justice Administrative Commission shall provide
211 to the Office of the State Courts Administrator data concerning
212 the number of cases approved for compensation in excess of the
213 limitation and the amount of these awards by circuit and by
214 judge. The office of the State Courts Administrator shall report
215 the data quarterly in an electronic format to the chairs of the
216 legislative appropriations committees President of the Senate,
217 the Speaker of the House of Representatives, the Chief Justice
218 of the Supreme Court, and the chief judge of each circuit.
219 Section 4. Paragraph (b) of subsection (2) of section
220 39.8296, Florida Statutes, is amended to read:
221 39.8296 Statewide Guardian Ad Litem Office; legislative
222 findings and intent; creation; appointment of executive
223 director; duties of office.—
224 (2) STATEWIDE GUARDIAN AD LITEM OFFICE.—There is created a
225 Statewide Guardian Ad Litem Office within the Justice
226 Administrative Commission. The Justice Administrative Commission
227 shall provide administrative support and service to the office
228 to the extent requested by the executive director within the
229 available resources of the commission. The Statewide Guardian Ad
230 Litem Office shall not be subject to control, supervision, or
231 direction by the Justice Administrative Commission in the
232 performance of its duties, but the employees of the office shall
233 be governed by the classification plan and salary and benefits
234 plan approved by the Justice Administrative Commission.
235 (b) The Statewide Guardian Ad Litem Office shall, within
236 available resources, have oversight responsibilities for and
237 provide technical assistance to all guardian ad litem and
238 attorney ad litem programs located within the judicial circuits.
239 1. The office shall identify the resources required to
240 implement methods of collecting, reporting, and tracking
241 reliable and consistent case data.
242 2. The office shall review the current guardian ad litem
243 programs in Florida and other states.
244 3. The office, in consultation with local guardian ad litem
245 offices, shall develop statewide performance measures and
246 standards.
247 4. The office shall develop a guardian ad litem training
248 program. The office shall establish a curriculum committee to
249 develop the training program specified in this subparagraph. The
250 curriculum committee shall include, but not be limited to,
251 dependency judges, directors of circuit guardian ad litem
252 programs, active certified guardians ad litem, a mental health
253 professional who specializes in the treatment of children, a
254 member of a child advocacy group, a representative of the
255 Florida Coalition Against Domestic Violence, and a social worker
256 experienced in working with victims and perpetrators of child
257 abuse.
258 5. The office shall review the various methods of funding
259 guardian ad litem programs, shall maximize the use of those
260 funding sources to the extent possible, and shall review the
261 kinds of services being provided by circuit guardian ad litem
262 programs.
263 6. The office shall determine the feasibility or
264 desirability of new concepts of organization, administration,
265 financing, or service delivery designed to preserve the civil
266 and constitutional rights and fulfill other needs of dependent
267 children.
268 7. In an effort to promote normalcy and establish trust
269 between a court-appointed volunteer guardian ad litem and a
270 child alleged to be abused, abandoned, or neglected under this
271 chapter, a guardian ad litem may transport a child. However, a
272 guardian ad litem volunteer may not be required or directed by
273 the program or a court to transport a child.
274 8.7. No later than October 1, 2004, The office shall submit
275 to the Governor, the President of the Senate, the Speaker of the
276 House of Representatives, and the Chief Justice of the Supreme
277 Court an interim report describing the progress of the office in
278 meeting the goals as described in this section. No later than
279 October 1, 2004, The office shall submit to the Governor, the
280 President of the Senate, the Speaker of the House of
281 Representatives, and the Chief Justice of the Supreme Court a
282 proposed plan including alternatives for meeting the state’s
283 guardian ad litem and attorney ad litem needs. This plan may
284 include recommendations for less than the entire state, may
285 include a phase-in system, and shall include estimates of the
286 cost of each of the alternatives. Each year thereafter, the
287 office shall provide a status report and provide further
288 recommendations to address the need for guardian ad litem
289 services and related issues.
290 Section 5. Section 39.8297, Florida Statutes, is created to
291 read:
292 39.8297 County funding for guardian ad litem employees.—
293 (1) A county and the executive director of the Statewide
294 Guardian Ad Litem Office may enter into an agreement by which
295 the county agrees to provide funds to the local guardian ad
296 litem office in order to employ persons who will assist in the
297 operation of the guardian ad litem program in the county.
298 (2) The agreement, at a minimum, must provide that:
299 (a) Funding for the persons who are employed will be
300 provided on at least a fiscal-year basis.
301 (b) The persons who are employed will be hired, supervised,
302 managed, and terminated by the executive director of the
303 Statewide Guardian Ad Litem Office. The statewide office is
304 responsible for compliance with all requirements of federal and
305 state employment laws.
306 (c) The county is the employer for purposes of s. 440.10
307 and chapter 443.
308 (d) Employees funded by the county under this section and
309 other county employees may be aggregated for purposes of a
310 flexible benefits plan pursuant to s. 125 of the Internal
311 Revenue Code of 1986.
312 (e) Persons employed under this section may be terminated
313 after a substantial breach of the agreement or because funding
314 to the program has expired.
315 (3) Persons employed under this section may not be counted
316 in a formula or similar process used by the Statewide Guardian
317 Ad Litem Office to measure personnel needs of a judicial
318 circuit’s guardian ad litem program.
319 (4) Agreements created pursuant to this section do not
320 obligate the state to allocate funds to a county to employ
321 persons in the guardian ad litem program.
322 Section 6. Paragraph (b) of subsection (13) of section
323 318.18, Florida Statutes, is amended to read:
324 318.18 Amount of penalties.—The penalties required for a
325 noncriminal disposition pursuant to s. 318.14 or a criminal
326 offense listed in s. 318.17 are as follows:
327 (13)
328 (b) A county may impose a surcharge under subparagraph
329 (a)1., subparagraph(a)2., or subparagraph(a)3., but may not
330 impose more than one surcharge under this subsection. A county
331 may elect to impose a different authorized surcharge but may not
332 impose more than one surcharge at a time. The clerk of court
333 shall report, no later than 30 days after the end of the
334 quarter, the amount of funds collected under this subsection
335 during each quarter of the fiscal year. The clerk shall submit
336 the report, in an electronic a format developed by the Florida
337 Clerks of Court Operations Corporation Office of State Courts
338 Administrator, to the chief judge of the circuit and to, the
339 Florida Clerks of Court Operations Corporation. The corporation
340 shall submit the report in an electronic format to the Governor,
341 the President of the Senate, the Speaker of the House of
342 Representatives, and the board of county commissioners.
343 Section 7. This act shall take effect July 1, 2012.