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.
   42  Be It Enacted by the Legislature of the State of Florida:
   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         39.8297County 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.