Senate Bill sb0286

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2001        (NP)                       SB 286

    By Senator Lee





    rb01-6

  1                 A reviser's bill to be entitled

  2         An act relating to the Florida Statutes;

  3         amending ss. 90.803, 627.736, 752.01, and

  4         924.07, F.S., and repealing s. 874.04, F.S., to

  5         conform to judicial decisions holding said

  6         provisions or parts thereof unconstitutional.

  7

  8  Be It Enacted by the Legislature of the State of Florida:

  9

10         Section 1.  Subsection (24) of section 90.803, Florida

11  Statutes, is amended to read:

12         90.803  Hearsay exceptions; availability of declarant

13  immaterial.--The provision of s. 90.802 to the contrary

14  notwithstanding, the following are not inadmissible as

15  evidence, even though the declarant is available as a witness:

16         (24)  HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR

17  DISABLED ADULT.--

18         (a)  Unless the source of information or the method or

19  circumstances by which the statement is reported indicates a

20  lack of trustworthiness, an out-of-court statement made by an

21  elderly person or disabled adult, as defined in s. 825.101,

22  describing any act of abuse or neglect, any act of

23  exploitation, the offense of battery or aggravated battery or

24  assault or aggravated assault or sexual battery, or any other

25  violent act on the declarant elderly person or disabled adult,

26  not otherwise admissible, is admissible in evidence in any

27  civil or criminal proceeding if:

28         1.  The court finds in a hearing conducted outside the

29  presence of the jury that the time, content, and circumstances

30  of the statement provide sufficient safeguards of reliability.

31  In making its determination, the court may consider the mental

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001        (NP)                       SB 286
    rb01-6




  1  and physical age and maturity of the elderly person or

  2  disabled adult, the nature and duration of the abuse or

  3  offense, the relationship of the victim to the offender, the

  4  reliability of the assertion, the reliability of the elderly

  5  person or disabled adult, and any other factor deemed

  6  appropriate; and

  7         2.  The elderly person or disabled adult either:

  8         a.  Testifies; or

  9         b.  Is unavailable as a witness, provided that there is

10  corroborative evidence of the abuse or offense. Unavailability

11  shall include a finding by the court that the elderly person's

12  or disabled adult's participation in the trial or proceeding

13  would result in a substantial likelihood of severe emotional,

14  mental, or physical harm, in addition to findings pursuant to

15  s. 90.804(1).

16         (b)  In a criminal action, the defendant shall be

17  notified no later than 10 days before the trial that a

18  statement which qualifies as a hearsay exception pursuant to

19  this subsection will be offered as evidence at trial. The

20  notice shall include a written statement of the content of the

21  elderly person's or disabled adult's statement, the time at

22  which the statement was made, the circumstances surrounding

23  the statement which indicate its reliability, and such other

24  particulars as necessary to provide full disclosure of the

25  statement.

26         (c)  The court shall make specific findings of fact, on

27  the record, as to the basis for its ruling under this

28  subsection.

29

30         Reviser's note.--The Florida Supreme Court in

31         Conner v. State, 748 So.2d 950 (Fla. 1999),

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001        (NP)                       SB 286
    rb01-6




  1         held s. 90.803(24) unconstitutional as it

  2         violates the defendant's constitutional right

  3         to confrontation.

  4

  5         Section 2.  Paragraph (c) of subsection (5) of section

  6  627.736, Florida Statutes, is amended to read:

  7         627.736  Required personal injury protection benefits;

  8  exclusions; priority; claims.--

  9         (5)  CHARGES FOR TREATMENT OF INJURED PERSONS.--

10         (c)  Every insurer shall include a provision in its

11  policy for personal injury protection benefits for binding

12  arbitration of any claims dispute involving medical benefits

13  arising between the insurer and any person providing medical

14  services or supplies if that person has agreed to accept

15  assignment of personal injury protection benefits. The

16  provision shall specify that the provisions of chapter 682

17  relating to arbitration shall apply.  The prevailing party

18  shall be entitled to attorney's fees and costs. For purposes

19  of the award of attorney's fees and costs, the prevailing

20  party shall be determined as follows:

21         1.  When the amount of personal injury protection

22  benefits determined by arbitration exceeds the sum of the

23  amount offered by the insurer at arbitration plus 50 percent

24  of the difference between the amount of the claim asserted by

25  the claimant at arbitration and the amount offered by the

26  insurer at arbitration, the claimant is the prevailing party.

27         2.  When the amount of personal injury protection

28  benefits determined by arbitration is less than the sum of the

29  amount offered by the insurer at arbitration plus 50 percent

30  of the difference between the amount of the claim asserted by

31

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001        (NP)                       SB 286
    rb01-6




  1  the claimant at arbitration and the amount offered by the

  2  insurer at arbitration, the insurer is the prevailing party.

  3         3.  When neither subparagraph 1. nor subparagraph 2.

  4  applies, there is no prevailing party. For purposes of this

  5  paragraph, the amount of the offer or claim at arbitration is

  6  the amount of the last written offer or claim made at least 30

  7  days prior to the arbitration.

  8         4.  In the demand for arbitration, the party requesting

  9  arbitration must include a statement specifically identifying

10  the issues for arbitration for each examination or treatment

11  in dispute. The other party must subsequently issue a

12  statement specifying any other examinations or treatment and

13  any other issues that it intends to raise in the arbitration.

14  The parties may amend their statements up to 30 days prior to

15  arbitration, provided that arbitration shall be limited to

16  those identified issues and neither party may add additional

17  issues during arbitration.

18

19         Reviser's note.--The Florida Supreme Court in

20         Nationwide Mutual Fire Insurance Company v.

21         Pinnacle Medical, Inc., 753 So.2d 55 (Fla.

22         2000), held portions of s. 627.736(5)(c)

23         unconstitutional as violative of the right of

24         medical providers to access to courts as

25         provided for in s. 21, Art. I of the Florida

26         Constitution. The Court also held the attorney

27         fee provision of s. 627.736(5) unconstitutional

28         as violative of the due process rights of

29         medical providers as provided for in s. 9, Art.

30         I of the Florida Constitution.

31

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001        (NP)                       SB 286
    rb01-6




  1         Section 3.  Subsection (1) of section 752.01, Florida

  2  Statutes, is amended to read:

  3         752.01  Action by grandparent for right of visitation;

  4  when petition shall be granted.--

  5         (1)  The court shall, upon petition filed by a

  6  grandparent of a minor child, award reasonable rights of

  7  visitation to the grandparent with respect to the child when

  8  it is in the best interest of the minor child if:

  9         (a)  The marriage of the parents of the child has been

10  dissolved; or

11         (b)  A parent of the child has deserted the child; or

12         (c)  The minor child was born out of wedlock and not

13  later determined to be a child born within wedlock as provided

14  in s. 742.091.

15

16         Reviser's note.--The Florida Supreme Court in

17         Saul v. Brunetti, 753 So.2d 26 (Fla. 2000),

18         held s. 752.01(1)(d) [redesignated as s.

19         752.01(1)(c) by s. 2, ch. 2000-156, Laws of

20         Florida] unconstitutional.

21

22         Section 4.  Section 874.04, Florida Statutes, is

23  repealed.

24

25         Reviser's note.--The Florida Supreme Court in

26         State v. O.C., 748 So.2d 945 (Fla. 1999), held

27         s. 874.04 unconstitutional as violative of

28         substantive due process.

29

30         Section 5.  Subsection (1) of section 924.07, Florida

31  Statutes, is amended to read:

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001        (NP)                       SB 286
    rb01-6




  1         924.07  Appeal by state.--

  2         (1)  The state may appeal from:

  3         (a)  An order dismissing an indictment or information

  4  or any count thereof or dismissing an affidavit charging the

  5  commission of a criminal offense, the violation of probation,

  6  the violation of community control, or the violation of any

  7  supervised correctional release.

  8         (b)  An order granting a new trial.

  9         (c)  An order arresting judgment.

10         (d)  A ruling on a question of law when the defendant

11  is convicted and appeals from the judgment. Once the state's

12  cross-appeal is instituted, the appellate court shall review

13  and rule upon the question raised by the state regardless of

14  the disposition of the defendant's appeal.

15         (e)  The sentence, on the ground that it is illegal.

16         (f)  A judgment discharging a prisoner on habeas

17  corpus.

18         (g)  An order adjudicating a defendant insane under the

19  Florida Rules of Criminal Procedure.

20         (h)  All other pretrial orders, except that it may not

21  take more than one appeal under this subsection in any case.

22         (i)  A sentence imposed below the lowest permissible

23  sentence established by the Criminal Punishment Code under

24  chapter 921.

25         (j)  A ruling granting a motion for judgment of

26  acquittal after a jury verdict.

27         (k)  An order denying restitution under s. 775.089.

28         (l)  An order or ruling suppressing evidence or

29  evidence in limine at trial.

30

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001        (NP)                       SB 286
    rb01-6




  1         Reviser's note.--The Florida Supreme Court in

  2         State v. Gaines, 25 Fla. L. Weekly S987 (Fla.

  3         Nov. 2, 2000), held s. 924.07(1)(l)

  4         unconstitutional as violative of s. 4(b)(1),

  5         Art. V of the Florida Constitution, which vests

  6         exclusive power in the Florida Supreme Court to

  7         authorize nonfinal appeals.

  8

  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  7

CODING: Words stricken are deletions; words underlined are additions.