| 1 | Representative Seiler offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove everything after the enacting clause and insert: |
| 5 | Section 1. Subsection (1) of section 48.021, Florida |
| 6 | Statutes, is amended to read: |
| 7 | 48.021 Process; by whom served.-- |
| 8 | (1) All process shall be served by the sheriff of the |
| 9 | county where the person to be served is found, except initial |
| 10 | nonenforceable civil process, criminal witness subpoenas, and |
| 11 | criminal summonses may be served by a special process server |
| 12 | appointed by the sheriff as provided for in this section or by a |
| 13 | certified process server as provided for in ss. 48.25-48.31. |
| 14 | Civil witness subpoenas may be served by any person authorized |
| 15 | by rules of civil procedure. |
| 16 | Section 2. Subsection (2) of section 48.27, Florida |
| 17 | Statutes, is amended to read: |
| 18 | 48.27 Certified process servers.-- |
| 19 | (2)(a) The addition of a person's name to the list |
| 20 | authorizes him or her to serve initial nonenforceable civil |
| 21 | process on a person found within the circuit where the process |
| 22 | server is certified when a civil action has been filed against |
| 23 | such person in the circuit court or in a county court in the |
| 24 | state. Upon filing an action in circuit or county court, a |
| 25 | person may select from the list for the circuit where the |
| 26 | process is to be served one or more certified process servers to |
| 27 | serve initial nonenforceable civil process. |
| 28 | (b) The addition of a person's name to the list authorizes |
| 29 | him or her to serve criminal witness subpoenas and criminal |
| 30 | summonses on a person found within the circuit where the process |
| 31 | server is certified. The state in any proceeding or |
| 32 | investigation by a grand jury or any party in a criminal action, |
| 33 | prosecution, or proceeding may select from the list for the |
| 34 | circuit where the process is to be served one or more certified |
| 35 | process servers to serve the subpoena or summons. |
| 36 | Section 3. Subsection (2) of section 56.041, Florida |
| 37 | Statutes, is amended to read: |
| 38 | 56.041 Executions; collection and return.-- |
| 39 | (2) All unsatisfied executions in the hands of the sheriff |
| 40 | docketed before October 1, 2001, or 20 years after the date of |
| 41 | issuance of final judgment upon which the execution was issued |
| 42 | may be returned, to the court issuing the execution, 20 years |
| 43 | after the date of issuance of final judgment upon which the |
| 44 | execution was issued. Upon such return, the clerk of the court |
| 45 | of issuance shall provide a receipt, to the sheriff submitting |
| 46 | the return, acknowledging the return of the unsatisfied |
| 47 | execution. |
| 48 | Section 4. Section 56.21, Florida Statutes, is amended to |
| 49 | read: |
| 50 | 56.21 Execution sales; notice.--Notice of all sales under |
| 51 | execution shall be given by advertisement once each week for 4 |
| 52 | successive weeks in a newspaper published in the county in which |
| 53 | the sale is to take place. The time of such notice may be |
| 54 | shortened in the discretion of the court from which the |
| 55 | execution issued, upon affidavit that the property to be sold is |
| 56 | subject to decay and will not sell for its full value if held |
| 57 | until date of sale. On or before the date of the first |
| 58 | publication or posting of the notice of sale, a copy of the |
| 59 | notice of sale shall be furnished by the sheriff by certified |
| 60 | mail to the attorney of record of the judgment debtor, or to the |
| 61 | judgment debtor at the judgment debtor's last known address if |
| 62 | the judgment debtor does not have an attorney of record. Such |
| 63 | copy of the notice of sale shall be mailed even though a default |
| 64 | judgment was entered. When levying upon real or personal |
| 65 | property, a notice of such levy and execution sale and a copy of |
| 66 | the affidavit required by s. 56.27(4) shall be sent by the |
| 67 | sheriff to the attorneys of record of all judgment creditors, or |
| 68 | to all judgment creditors who do not have an attorney of record, |
| 69 | who have acquired a judgment lien as provided in s. 55.10(1) and |
| 70 | (2), s. 55.202, or s. 55.204(3), and whose liens have not lapsed |
| 71 | at the time of levy, at the address listed in the judgment lien |
| 72 | certificate, or, if amended, in any amendment to the judgment |
| 73 | lien certificate, and to all secured creditors who have filed |
| 74 | financing statements as provided in part V of chapter 679 in the |
| 75 | name of the judgment debtor reflecting a security interest in |
| 76 | property of the kind to be sold at the execution sale at the |
| 77 | address listed in the financing statement, or, if amended, in |
| 78 | any amendment to the financing statement. Such notice shall be |
| 79 | made in the same manner as notice is made to any judgment debtor |
| 80 | under this section. When levying upon real property, notice of |
| 81 | such levy and execution sale and affidavit required by s. |
| 82 | 56.27(4) shall be made to the property owner of record in the |
| 83 | same manner as notice is made to any judgment debtor pursuant to |
| 84 | this section. When selling real or personal property, the sale |
| 85 | date shall not be earlier than 30 days after the date of the |
| 86 | first advertisement. |
| 87 | Section 5. Subsections (1), (2), and (4) of section 56.27, |
| 88 | Florida Statutes, are amended to read: |
| 89 | 56.27 Executions; payment of money collected.-- |
| 90 | (1) All money received under executions shall be paid, in |
| 91 | the order prescribed, to the following: the sheriff, for costs; |
| 92 | the levying creditor in the amount of $500 as liquidated |
| 93 | expenses; and if the levy is upon real property, the first |
| 94 | priority lienholder under s. 55.10(1) and (2), s. 55.10; and if |
| 95 | the levy is upon personal property, the first priority |
| 96 | lienholder under s. 55.202, s. 55.204(3), or s. 55.208(2), as |
| 97 | set forth in an affidavit required by subsection (4), or his or |
| 98 | her attorney, in satisfaction of the judgment lien, if provided |
| 99 | that the judgment lien has not lapsed at the time of the levy. |
| 100 | The receipt of the attorney shall be a release of the officer |
| 101 | paying the money to him or her. If When the name of more than |
| 102 | one attorney appears in the court file, the money shall be paid |
| 103 | to the attorney who originally commenced the action or who made |
| 104 | the original defense unless the file shows that another attorney |
| 105 | has been substituted. |
| 106 | (2) If When property sold under execution brings more than |
| 107 | the amount needed to satisfy the provisions of subsection (1), |
| 108 | the surplus shall be paid in the order of priority to any |
| 109 | judgment lienholders whose judgment liens have not lapsed. For |
| 110 | the purpose of the sheriff's distribution of the surplus to |
| 111 | judgment lienholders under this subsection: |
| 112 | (a) Priority of liens on personal property shall be based |
| 113 | on the effective date of the judgment lien acquired under s. |
| 114 | 55.202, s. 55.204(3), or s. 55.208(2), as set forth in an |
| 115 | affidavit required under subsection (4). |
| 116 | (b) Priority of liens on real property shall be based on |
| 117 | the effective date of the judgment lien acquired under s. |
| 118 | 55.10(1) and (2), as set forth in an affidavit required under |
| 119 | subsection (4). |
| 120 | |
| 121 | If there is a surplus after all valid judgment liens and |
| 122 | execution liens have been satisfied, the surplus must be paid to |
| 123 | the owner of the property sold defendant. |
| 124 | (4) Before the date of the first publication or posting of |
| 125 | the notice of sale provided for under s. 56.21, at the time of |
| 126 | the levy request to the sheriff, the levying creditor shall |
| 127 | deliver to the sheriff an affidavit setting forth all of the |
| 128 | following as to the judgment debtor: |
| 129 | (a) For a personal property levy, an attestation by that |
| 130 | the levying creditor or the creditor's attorney of record that |
| 131 | he or she has reviewed the database or judgment lien records |
| 132 | established in accordance with ss. 55.201-55.209 and that the |
| 133 | information contained in the affidavit based on that review is |
| 134 | true and correct. For real property levy in accordance with s. |
| 135 | 55.10(1) and (2), an attestation by the levying creditor or his |
| 136 | or her attorney of record that he or she has reviewed the |
| 137 | records of the clerk of court of the county where the property |
| 138 | is situated, or that he or she has performed a title search, and |
| 139 | that the information contained in the affidavit based on that |
| 140 | review or title search is true and correct.; |
| 141 | (b) The information required under s. 55.203(1) and (2) |
| 142 | for each judgment lien certificate indexed under the name of the |
| 143 | judgment debtor as to each judgment creditor; the file number |
| 144 | assigned to the record of the original and, if any, the second |
| 145 | judgment lien; and the date of filing for each judgment lien |
| 146 | certificate under s. 55.202 or s. 55.204(3). For real property, |
| 147 | the information contained in the certified copy of recordation |
| 148 | of lien pursuant to s. 55.10(1) and (2) for each lien recorded |
| 149 | on real property.; and |
| 150 | (c) A statement that the levying creditor either does not |
| 151 | have any other levy in process or, if another levy is in |
| 152 | process, the levying creditor believes in good faith that the |
| 153 | total value of the property under execution does not exceed the |
| 154 | amount of outstanding judgments. |
| 155 | Section 6. Paragraph (a) of subsection (8) of section |
| 156 | 741.30, Florida Statutes, is amended to read: |
| 157 | 741.30 Domestic violence; injunction; powers and duties of |
| 158 | court and clerk; petition; notice and hearing; temporary |
| 159 | injunction; issuance of injunction; statewide verification |
| 160 | system; enforcement.-- |
| 161 | (8)(a)1. The clerk of the court shall furnish a copy of |
| 162 | the petition, financial affidavit, Uniform Child Custody |
| 163 | Jurisdiction and Enforcement Act affidavit, if any, notice of |
| 164 | hearing, and temporary injunction, if any, to the sheriff or a |
| 165 | law enforcement agency of the county where the respondent |
| 166 | resides or can be found, who shall serve it upon the respondent |
| 167 | as soon thereafter as possible on any day of the week and at any |
| 168 | time of the day or night. When requested by the sheriff, the |
| 169 | clerk of court may transmit a facsimile copy of an injunction |
| 170 | that has been certified by the clerk of court, and this |
| 171 | facsimile copy may be served in the same manner as a certified |
| 172 | copy. Upon receiving such a facsimile copy, the sheriff must |
| 173 | verify receipt with the sender before attempting to serve it |
| 174 | upon the respondent. In addition, if the sheriff is in |
| 175 | possession of an injunction for protection that has been |
| 176 | certified by the clerk of court, the sheriff may transmit a |
| 177 | facsimile copy of that injunction to a law enforcement officer |
| 178 | who shall serve it in the same manner as a certified copy. The |
| 179 | clerk of the court shall be responsible for furnishing to the |
| 180 | sheriff such information on the respondent's physical |
| 181 | description and location as is required by the department to |
| 182 | comply with the verification procedures set forth in this |
| 183 | section. Notwithstanding any other provision of law to the |
| 184 | contrary, the chief judge of each circuit, in consultation with |
| 185 | the appropriate sheriff, may authorize a law enforcement agency |
| 186 | within the jurisdiction to effect service. A law enforcement |
| 187 | agency serving injunctions pursuant to this section shall use |
| 188 | service and verification procedures consistent with those of the |
| 189 | sheriff. |
| 190 | 2. When an injunction is issued, if the petitioner |
| 191 | requests the assistance of a law enforcement agency, the court |
| 192 | may order that an officer from the appropriate law enforcement |
| 193 | agency accompany the petitioner and assist in placing the |
| 194 | petitioner in possession of the dwelling or residence, or |
| 195 | otherwise assist in the execution or service of the injunction. |
| 196 | A law enforcement officer shall accept a copy of an injunction |
| 197 | for protection against domestic violence, certified by the clerk |
| 198 | of the court, from the petitioner and immediately serve it upon |
| 199 | a respondent who has been located but not yet served. |
| 200 | 3. All orders issued, changed, continued, extended, or |
| 201 | vacated subsequent to the original service of documents |
| 202 | enumerated under subparagraph 1., shall be certified by the |
| 203 | clerk of the court and delivered to the parties at the time of |
| 204 | the entry of the order. The parties may acknowledge receipt of |
| 205 | such order in writing on the face of the original order. In the |
| 206 | event a party fails or refuses to acknowledge the receipt of a |
| 207 | certified copy of an order, the clerk shall note on the original |
| 208 | order that service was effected. If delivery at the hearing is |
| 209 | not possible, the clerk shall mail certified copies of the order |
| 210 | to the parties at the last known address of each party. Service |
| 211 | by mail is complete upon mailing. When an order is served |
| 212 | pursuant to this subsection, the clerk shall prepare a written |
| 213 | certification to be placed in the court file specifying the |
| 214 | time, date, and method of service and shall notify the sheriff. |
| 215 |
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| 216 | If the respondent has been served previously with the temporary |
| 217 | injunction and has failed to appear at the initial hearing on |
| 218 | the temporary injunction, any subsequent petition for injunction |
| 219 | seeking an extension of time may be served on the respondent by |
| 220 | the clerk of the court by certified mail in lieu of personal |
| 221 | service by a law enforcement officer. |
| 222 | Section 7. Paragraph (a) of subsection (8) of section |
| 223 | 784.046, Florida Statutes, is amended to read: |
| 224 | 784.046 Action by victim of repeat violence, sexual |
| 225 | violence, or dating violence for protective injunction; powers |
| 226 | and duties of court and clerk of court; filing and form of |
| 227 | petition; notice and hearing; temporary injunction; issuance; |
| 228 | statewide verification system; enforcement.-- |
| 229 | (8)(a)1. The clerk of the court shall furnish a copy of |
| 230 | the petition, notice of hearing, and temporary injunction, if |
| 231 | any, to the sheriff or a law enforcement agency of the county |
| 232 | where the respondent resides or can be found, who shall serve it |
| 233 | upon the respondent as soon thereafter as possible on any day of |
| 234 | the week and at any time of the day or night. When requested by |
| 235 | the sheriff, the clerk of court may transmit a facsimile copy of |
| 236 | an injunction that has been certified by the clerk of court, and |
| 237 | this facsimile copy may be served in the same manner as a |
| 238 | certified copy. Upon receiving such a facsimile copy, the |
| 239 | sheriff must verify receipt with the sender before attempting to |
| 240 | serve it upon the respondent. In addition, if the sheriff is in |
| 241 | possession of an injunction for protection that has been |
| 242 | certified by the clerk of court, the sheriff may transmit a |
| 243 | facsimile copy of that injunction to a law enforcement officer |
| 244 | who shall serve it in the same manner as a certified copy. The |
| 245 | clerk of the court shall be responsible for furnishing to the |
| 246 | sheriff such information on the respondent's physical |
| 247 | description and location as is required by the department to |
| 248 | comply with the verification procedures set forth in this |
| 249 | section. Notwithstanding any other provision of law to the |
| 250 | contrary, the chief judge of each circuit, in consultation with |
| 251 | the appropriate sheriff, may authorize a law enforcement agency |
| 252 | within the chief judge's jurisdiction to effect this type of |
| 253 | service and to receive a portion of the service fee. No person |
| 254 | shall be authorized or permitted to serve or execute an |
| 255 | injunction issued under this section unless the person is a law |
| 256 | enforcement officer as defined in chapter 943. |
| 257 | 2. When an injunction is issued, if the petitioner |
| 258 | requests the assistance of a law enforcement agency, the court |
| 259 | may order that an officer from the appropriate law enforcement |
| 260 | agency accompany the petitioner and assist in the execution or |
| 261 | service of the injunction. A law enforcement officer shall |
| 262 | accept a copy of an injunction for protection against repeat |
| 263 | violence, sexual violence, or dating violence, certified by the |
| 264 | clerk of the court, from the petitioner and immediately serve it |
| 265 | upon a respondent who has been located but not yet served. |
| 266 | Section 8. This act shall take effect July 1, 2008. |
| 267 |
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| 270 | ----------------------------------------------------- |
| 271 | T I T L E A M E N D M E N T |
| 272 | Remove the entire title and insert: |
| 273 | A bill to be entitled |
| 274 | An act relating to service of process; amending s. 48.021, |
| 275 | F.S.; providing that criminal witness subpoenas and |
| 276 | criminal summonses may be served by a special process |
| 277 | server appointed by the local sheriff or by a certified |
| 278 | process server; amending s. 48.27, F.S.; providing for |
| 279 | selection of authorized certified process servers to serve |
| 280 | such subpoenas and summonses; amending s. 56.041, F.S.; |
| 281 | providing that all unsatisfied executions in the |
| 282 | possession of the sheriff docketed before October 1, 2001, |
| 283 | may be returned to the issuing court; amending s. 56.21, |
| 284 | F.S.; requiring the submission of an affidavit before |
| 285 | levying a judgment upon real property; requiring the |
| 286 | sheriff to furnish to the judgment debtor or the debtor's |
| 287 | attorney of record a copy of the notice of sale, notice of |
| 288 | levy, and affidavit within a specified period before |
| 289 | execution of a sale or levy; amending s. 56.27, F.S.; |
| 290 | requiring that priority of liens on real property be based |
| 291 | on the effective date of the judgment lien for a specified |
| 292 | purpose; requiring a levying creditor to deliver to the |
| 293 | sheriff at the time of the levy request an affidavit |
| 294 | setting forth certain information and attestations; |
| 295 | amending ss. 741.30 and 784.046, F.S., relating to service |
| 296 | of process in cases of domestic violence or sexual abuse; |
| 297 | authorizing clerks of court to transmit facsimile copies |
| 298 | of previously certified injunctions to sheriffs upon |
| 299 | request; requiring sheriffs to verify receipt of facsimile |
| 300 | copies of injunctions with clerks of court before |
| 301 | attempting service; authorizing law enforcement officers |
| 302 | to serve facsimile copies of injunctions in the same |
| 303 | manner as certified copies; providing an effective date. |
| 304 |
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