ENROLLED
       2011 Legislature                          SB 2116, 1st Engrossed
       
       
       
       
       
       
                                                             20112116er
    1  
    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.