Senate Bill sb0562

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    Florida Senate - 2006                                   SB 562

    By Senator Fasano





    11-47-06

  1                      A bill to be entitled

  2         An act relating to state liens on the proceeds

  3         of sale of certain literary accounts and the

  4         profits of sale of certain memorabilia;

  5         amending s. 944.512, F.S.; defining terms

  6         concerning the sale of literary accounts and

  7         memorabilia by and on behalf of a convicted

  8         felon; providing for a lien in favor of the

  9         state on the proceeds or profits of the sale of

10         literary accounts, materials, and memorabilia

11         payable to or accruing to a convicted felon, a

12         representative of the convicted felon, or a

13         profiteer of the felony; providing for the

14         distribution of the proceeds or profits of the

15         sale of literary accounts or memorabilia;

16         clarifying that the lien provisions apply to

17         convictions in circuit court; amending s.

18         960.291, F.S.; revising definitions with

19         respect to civil restitution liens to conform

20         to changes made by the act; providing an

21         effective date.

22  

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

24  

25         Section 1.  Section 944.512, Florida Statutes, is

26  amended to read:

27         944.512  State lien on proceeds from literary or other

28  type of account of crime for which convicted and on profits

29  from the sale of memorabilia.--

30         (1)  As used in this section, the term:

31  

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    Florida Senate - 2006                                   SB 562
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 1         (a)  "Conviction" or "convicted," with respect to the

 2  commission of a criminal offense, means a finding of guilt or

 3  the acceptance of a plea of guilty or nolo contendere,

 4  regardless of whether adjudication was withheld.

 5         (b)  "Materials" means a writing, sound or video

 6  recording, interview or appearance on a television or radio

 7  station, or a live presentation of any kind which includes or

 8  is based on the story of a felony for which a convicted felon

 9  was convicted.

10         (c)  "Proceeds of sale" means all fees, royalties,

11  commissions, real or personal property, or other consideration

12  of any kind received by or accruing or owing to a convicted

13  felon or the representative of a convicted felon for the

14  preparation of or for the purpose of sale of materials, for

15  the sale of the rights to materials, or the sale or

16  distribution by the convicted felon of materials, whether

17  earned, accrued, or paid before or after the conviction. The

18  term includes any interest, earnings, or accretions upon

19  proceeds and any property received in exchange for proceeds.

20         (d)  "Profits from the sale of memorabilia" means all

21  income, whether payable, accruing, or received, from anything

22  sold or transferred by a convicted felon, a representative of

23  a convicted felon, or a profiteer of a felony, including any

24  right or memorabilia, the value of which thing or right is

25  enhanced by the notoriety gained from the commission of the

26  felony of which the felon was convicted. This income may be

27  accrued, earned, or paid before or after the conviction. The

28  term excludes a voluntary donation or contribution made to a

29  defendant to assist in the defense of criminal charges which

30  was not given in exchange for something of value.

31  

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    Florida Senate - 2006                                   SB 562
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 1         (e)  "Profiteer of a felony" means a person who sells

 2  or transfers for consideration any memorabilia or other

 3  property or thing of a convicted felon, the value of which is

 4  enhanced by the notoriety gained from the commission of the

 5  felony of which the felon was convicted. The term excludes:

 6         1.  A media entity reporting on a convicted felon or

 7  reporting on the sale or transfer of materials, memorabilia,

 8  or other property or things belonging to a felon;

 9         2.  The sale or transfer of materials, if the seller is

10  exercising his or her rights under the First Amendment of the

11  United States Constitution; or

12         3.  The sale or transfer of any other expressive work

13  protected by the First Amendment of the United States

14  Constitution, unless the sale or transfer is primarily for a

15  commercial or speculative purpose.

16         (f)  "Representative of a convicted felon" means a

17  person or entity receiving proceeds of sale or profits from

18  the sale of memorabilia by designation of a convicted felon,

19  on behalf of a convicted felon, or in the stead of a convicted

20  felon, whether by the convicted felon's designation or by

21  operation of law, including a person or entity to whom

22  proceeds of sale may be transferred or assigned by gift or

23  otherwise.

24         (g)  "Sale" includes the lease, licensure, or any other

25  transfer or alienation that takes place in this state or

26  elsewhere.

27         (h)  "Story" means a depiction, portrayal, or

28  reenactment of a felony, including a literary, cinematic, or

29  other account of a felony. The term excludes a passing mention

30  of the felony, as in a footnote or bibliography.

31  

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    Florida Senate - 2006                                   SB 562
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 1         (2)(1)  A lien prior in dignity to all others exists

 2  shall exist in favor of the state upon the royalties,

 3  commissions, proceeds of sale, or any other thing of value

 4  payable to or accruing to a convicted felon or a person on her

 5  or his behalf, including any person to whom the proceeds may

 6  be transferred or assigned by gift or otherwise, from any

 7  literary, cinematic, or other account of the crime for which

 8  she or he was convicted. A conviction shall be defined as a

 9  guilty verdict by a jury or judge, or a guilty or nolo

10  contendere plea by the defendant, regardless of adjudication

11  of guilt.  The lien attaches shall attach at the time of the

12  conviction of the subject felony in county or circuit court.

13  In the event of an appeal, the funds must will be held in the

14  Revolving Escrow Trust Fund of the Department of Legal Affairs

15  until the appeal is resolved.

16         (3)  A lien prior in dignity to all others exists in

17  favor of the state upon the profits from the sale of

18  memorabilia. The lien attaches at the time of the conviction

19  of the subject felony in circuit court. In the event of an

20  appeal, the funds must be held in the Revolving Escrow Trust

21  Fund of the Department of Legal Affairs until the appeal is

22  resolved.

23         (4)(2)  The funds in the proceeds of such account shall

24  be distributed in the following order:

25         (a)  Twenty-five percent to the dependents of the

26  convicted felon.  If there are no dependents, this portion

27  shall be distributed to the Crimes Compensation Trust Fund to

28  be distributed as awards for crime victims.

29         (b)  Twenty-five percent to the victim or victims of

30  the crime or to their dependents, to the extent of their

31  damages as determined by the court in the lien enforcement

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    Florida Senate - 2006                                   SB 562
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 1  proceedings.  If there are no victims or dependents, or if

 2  their damages are less than 25 percent of the proceeds, this

 3  portion, or its remainder, shall be distributed to the Crimes

 4  Compensation Trust Fund to be distributed as awards to crime

 5  victims.

 6         (c)  After payments have been made pursuant to

 7  paragraph (a) or paragraph (b), an amount equal to pay all

 8  court costs in the prosecution of the convicted felon, which

 9  includes shall include, but is not be limited to, jury fees

10  and expenses, court reporter fees, and reasonable per diem for

11  the prosecuting attorneys for the state, shall be deposited

12  into go to the General Revenue Fund. Additional costs shall be

13  assessed for the computed per capita cost of imprisonment or

14  supervision by the state or county correctional system. The

15  Such costs shall be determined and certified by the

16  prosecuting attorney and the imprisoning entity and subject to

17  review by the Auditor General.

18         (d)  The rest, residue, and remainder to the Crimes

19  Compensation Trust Fund to be distributed as awards to crime

20  victims.

21         (5)(3)  A judge may place a lien prior in dignity to

22  all others in favor of the state or county upon any financial

23  settlement payable to or accruing to a convicted felon

24  offender or a representative of a convicted felon person on

25  her or his behalf, as a result of injury incurred during or at

26  the time of a violation of the state law, or as a result of an

27  attempt to flee apprehension for the offense for which the

28  offender was convicted.  A conviction is defined as in

29  subsection (1).  The lien shall be attached by order of the

30  judge at the time of the conviction in county or circuit

31  court.  In the event of an appeal, the funds shall be held in

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    Florida Senate - 2006                                   SB 562
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 1  the Revolving Escrow Trust Fund of the Department of Legal

 2  Affairs until the appeal is resolved.

 3         (6)(4)  The financial settlement must proceeds of such

 4  account shall be distributed in the following order:

 5         (a)  Payment of all medical care, treatment,

 6  hospitalization, and transportation resulting from the said

 7  injury.

 8         (b)  Payment to the victim or victims of the crime or

 9  to their dependents, to the extent of their damages as

10  determined by the court in the lien enforcement proceeding.

11         (c)  Payment of all court costs in the prosecution of

12  the convicted felon, which includes shall include, but is not

13  be limited to, jury fees and expense, court reporter fees, and

14  reasonable per diem for the prosecuting attorneys and public

15  defenders.

16         (d)  Payment of cost of incarceration in state or

17  county facilities.

18         (e)  The rest, residue, remainder to the injured party.

19         (7)(5)  The department shall is hereby authorized and

20  directed to report to the Department of Legal Affairs the

21  existence or reasonably expected existence of circumstances

22  that which would be covered by this section.  Upon such

23  notification, the Department of Legal Affairs is authorized

24  and directed to take such legal action as is necessary to

25  perfect and enforce the lien created by this section.

26         Section 2.  Section 960.291, Florida Statutes, is

27  amended to read:

28         960.291  Definitions.--When used in this act, the term:

29         (1)  "Civil restitution lien" means a lien that which

30  exists in favor of crime victims, the state, its local

31  subdivisions, or an aggrieved party and that which attaches

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    Florida Senate - 2006                                   SB 562
    11-47-06




 1  against the real or personal property owned by a convicted

 2  offender.

 3         (2)  "Convicted offender" means a defendant who has a

 4  conviction as defined herein entered against the defendant in

 5  the courts of this state.

 6         (3)  "Conviction" means a finding of guilt or the

 7  acceptance of a plea of guilty or nolo contendere, regardless

 8  of whether adjudication was withheld guilty verdict by a jury

 9  or judge, or a guilty or nolo contendere plea by a defendant,

10  regardless of adjudication of guilt.

11         (4)  "Crime victim" means the victim of a crime and

12  includes the aggrieved party, the aggrieved party's estate if

13  the aggrieved party is deceased, and the aggrieved party's

14  next of kin if the aggrieved party is deceased as a result of

15  the conduct of a convicted offender. For the purposes of this

16  act, the term "crime victim" does not include any person who

17  participated in the criminal conduct or criminal episode

18  resulting in the conviction.

19         (5)  "Damages or losses" includes:

20         (a)  Damage or loss to a any crime victim which is

21  caused by the conduct of a convicted offender. This amount

22  shall be determined by the court, as provided for in s.

23  960.293.

24         (b)  Damage or loss to the state and its local

25  subdivisions which is caused by imposition of a convicted

26  offender's sentence.

27         1.  The Such damage or loss to the state and its local

28  subdivisions includes the costs of incarceration and other

29  correctional costs in connection with the implementation of a

30  state court's sentence. This cost shall be determined by the

31  court, as provided for in s. 960.293.

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    Florida Senate - 2006                                   SB 562
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 1         2.  The Such damage or loss to the state does shall not

 2  include those costs on conviction for which the defendant may

 3  be held liable under chapter 939.

 4         (6)  "Local subdivisions" means local subdivisions of

 5  the State of Florida which maintain correctional facilities,

 6  such as counties that maintain county correctional facilities

 7  or counties that provide funds directly or indirectly for the

 8  maintenance of correctional facilities within the county.

 9         (7)  "Real or personal property" includes any real or

10  personal property owned by the convicted offender, or that a

11  person possesses on the convicted offender's behalf,

12  including, but not limited to, any royalties, commissions,

13  proceeds of sale or profits from the sale of memorabilia, as

14  defined in s. 944.512, or any other thing of value accruing to

15  the convicted offender, or a person on the convicted

16  offender's behalf. The term "real or personal property"

17  specifically includes any financial settlement or court award

18  payable or accruing to a convicted offender or to a person on

19  behalf of the convicted offender. A No civil restitution lien

20  created pursuant to the provisions of this act may not be

21  foreclosed on real property that which is the convicted

22  offender's homestead under s. 4, Art. X of the State

23  Constitution.

24         (8)  "Sentence" means the court-imposed sentence of a

25  convicted offender.

26         Section 3.  This act shall take effect July 1, 2006.

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    Florida Senate - 2006                                   SB 562
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides for a lien in favor of the state on the proceeds
      or profits of the sale of literary accounts, materials,
 4    and memorabilia payable to or accruing to a convicted
      felon, a representative of the convicted felon, or a
 5    profiteer of the felony.  Defines terms.  Provides for
      distribution of the proceeds or profits of the sale of
 6    certain literary accounts or memorabilia.  Clarifies
      application of lien provisions to convictions in circuit
 7    court. Revises definitions to conform to changes made by
      the act.
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