Florida Senate - 2011             CONFERENCE COMMITTEE AMENDMENT
       Bill No. SB 2116
       
       
       
       
       
       
                                Barcode 746456                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: AD/CR          .                                
             05/06/2011 08:58 PM       .                                
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       The Conference Committee on SB 2116 recommended the following:
       
    1         Senate Conference Committee Amendment (with title
    2  amendment)
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Subsection (10) is added to section 27.511,
    7  Florida Statutes, to read:
    8         27.511 Offices of criminal conflict and civil regional
    9  counsel; legislative intent; qualifications; appointment;
   10  duties.—
   11         (10) Each office of criminal conflict and civil regional
   12  counsel may create a direct-support organization.
   13         (a) The direct-support organization must be registered in
   14  this state as a nonprofit corporation under chapter 617. The
   15  direct-support organization shall be exempt from the filing fees
   16  under s. 617.0122.
   17         (b) The direct-support organization shall be organized and
   18  operated to conduct programs and activities; raise funds;
   19  request and receive grants, gifts, and bequests of moneys;
   20  acquire, receive, hold, invest, and administer, in its own name,
   21  securities, funds, objects of value, or other property, real or
   22  personal; and make expenditures to or for the direct or indirect
   23  benefit of the office of criminal conflict and civil regional
   24  counsel.
   25         (c) The direct-support organization shall operate under a
   26  written contract with the regional counsel. The written contract
   27  must, at a minimum, provide for:
   28         1. Approval of the articles of incorporation and bylaws of
   29  the organization by the regional counsel.
   30         2. Submission of an annual budget for the approval by the
   31  regional counsel.
   32         3. The reversion without penalty to the office of criminal
   33  conflict and civil regional counsel, or to the state if the
   34  office ceases to exist, of all moneys and property held in trust
   35  by the organization for the office if the organization ceases to
   36  exist or if the contract is terminated.
   37         4. The fiscal year of the organization, which must begin
   38  July 1 of each year and end June 30 of the following year.
   39         5. The disclosure of material provisions of the contract
   40  and the distinction between the regional counsel and the
   41  organization to donors of gifts, contributions, or bequests, as
   42  well as on all promotional and fundraising publications.
   43         (d) If the regional counsel determines that the direct
   44  support organization is operating in a manner that is
   45  inconsistent with the goals and purposes of the office of
   46  criminal conflict and civil regional counsel or is not acting in
   47  the best interest of the state, the regional counsel may
   48  terminate the contract, and thereafter the organization may not
   49  use the name of the office.
   50         (e) The regional counsel shall appoint a board of directors
   51  for the direct-support organization. The regional counsel may
   52  designate employees of the office of criminal conflict and civil
   53  regional counsel to serve on the board of directors. Members of
   54  the board shall serve at the pleasure of the regional counsel.
   55         (f) The regional counsel:
   56         1. May authorize the use of facilities and property other
   57  than money which are owned by the office of criminal conflict
   58  and civil regional counsel to be used by the direct-support
   59  organization.
   60         2. May authorize the use of personnel services provided by
   61  employees of the office.
   62         3. May prescribe the conditions by which the direct-support
   63  organization may use property, facilities, or personnel services
   64  of the office.
   65         4. May not authorize the use of property, facilities, or
   66  personnel services of the direct-support organization if the
   67  organization does not provide equal employment opportunities to
   68  all persons, regardless of race, color, religion, sex, age, or
   69  national origin.
   70  
   71  For the purposes of this paragraph, the term “personnel
   72  services” includes full-time personnel and part-time personnel
   73  as well as payroll processing.
   74         (g) Moneys of the direct-support organization may be held
   75  in a depository account in the name of the organization which is
   76  separate from the accounts of the office, but which is subject
   77  to the provisions of the contract with the regional counsel.
   78         (h) The direct-support organization shall provide for an
   79  annual financial audit in accordance with s. 215.981.
   80         (i) The direct-support organization may not exercise any
   81  power under s. 617.0302(12) or (16). A state employee may not
   82  receive compensation from the organization for service on the
   83  board of directors or for services rendered to the organization.
   84         Section 2. Paragraph (a) of subsection (2) of section
   85  27.52, Florida Statutes, is amended to read:
   86         27.52 Determination of indigent status.—
   87         (2) DETERMINATION BY THE CLERK.—The clerk of the court
   88  shall determine whether an applicant seeking appointment of a
   89  public defender is indigent based upon the information provided
   90  in the application and the criteria prescribed in this
   91  subsection.
   92         (a)1. An applicant, including an applicant who is a minor
   93  or an adult tax-dependent person, is indigent if the applicant’s
   94  income is equal to or below 200 percent of the then-current
   95  federal poverty guidelines prescribed for the size of the
   96  household of the applicant by the United States Department of
   97  Health and Human Services or if the person is receiving
   98  Temporary Assistance for Needy Families-Cash Assistance,
   99  poverty-related veterans’ benefits, or Supplemental Security
  100  Income (SSI).
  101         1.2.a. There is a presumption that the applicant is not
  102  indigent if the applicant owns, or has equity in, any intangible
  103  or tangible personal property or real property or the expectancy
  104  of an interest in any such property having a net equity value of
  105  $2,500 or more, excluding the value of the person’s homestead
  106  and one vehicle having a net value not exceeding $5,000.
  107         2.b. Notwithstanding the information that the applicant
  108  provides, the clerk may shall conduct a review of the property
  109  records for the county in which the applicant resides and the
  110  motor vehicle title records of the state to identify any
  111  property interests of the applicant under this paragraph
  112  subparagraph. The clerk may shall evaluate and consider the
  113  results of the review in making a determination under this
  114  subsection. If the review is conducted, the clerk shall maintain
  115  the results of the review in a file with the application and
  116  provide the file to the court if the applicant seeks review
  117  under subsection (4) of the clerk’s determination of indigent
  118  status.
  119         Section 3. Subsection (12) of section 27.5304, Florida
  120  Statutes, is amended to read:
  121         27.5304 Private court-appointed counsel; compensation.—
  122         (12) The Legislature recognizes that on rare occasions an
  123  attorney may receive a case that requires extraordinary and
  124  unusual effort.
  125         (a) If counsel seeks compensation that exceeds the limits
  126  prescribed by law under this section and the General
  127  Appropriations Act, he or she must file a motion with the chief
  128  judge for an order approving payment of attorney’s fees in
  129  excess of these limits.
  130         1. Before Prior to filing the motion, the counsel shall
  131  deliver a copy of the intended billing, together with supporting
  132  affidavits and all other necessary documentation, to the Justice
  133  Administrative Commission.
  134         2. The Justice Administrative Commission shall review the
  135  billings, affidavit, and documentation for completeness and
  136  compliance with contractual and statutory requirements. If the
  137  Justice Administrative Commission objects to any portion of the
  138  proposed billing, the objection and reasons therefor shall be
  139  communicated in writing to the private court-appointed counsel.
  140  The counsel may thereafter file his or her motion, which must
  141  specify whether the commission objects to any portion of the
  142  billing or the sufficiency of documentation, and shall attach
  143  the commission’s letter stating its objection.
  144         (b) Following receipt of the motion to exceed the fee
  145  limits, the chief judge or a single designee for all such cases,
  146  shall hold an evidentiary hearing.
  147         1. At the hearing, the attorney seeking compensation must
  148  prove by competent and substantial evidence that the case
  149  required extraordinary and unusual efforts. The chief judge or
  150  designee shall consider criteria such as the number of
  151  witnesses, the complexity of the factual and legal issues, and
  152  the length of trial. The fact that a trial was conducted in a
  153  case does not, by itself, constitute competent substantial
  154  evidence of an extraordinary and unusual effort. In a criminal
  155  case, relief under this section may not be granted if the number
  156  of work hours does not exceed 75 or the number of the state’s
  157  witnesses deposed does not exceed 20.
  158         2. The chief judge or designee shall enter a written order
  159  detailing his or her findings and identifying the extraordinary
  160  nature of the time and efforts of the attorney in the case which
  161  warrant exceeding the flat fee established by this section and
  162  the General Appropriations Act.
  163         (c) A copy of the motion and attachments shall be served on
  164  the Justice Administrative Commission at least 5 business days
  165  before prior to the date of a hearing. The Justice
  166  Administrative Commission shall have standing to appear before
  167  the court, including at the hearing under paragraph (b), to
  168  contest any motion for an order approving payment of attorney’s
  169  fees, costs, or related expenses and may participate in a
  170  hearing on the motion by use of telephonic or other
  171  communication equipment unless ordered otherwise. The Justice
  172  Administrative Commission may contract with other public or
  173  private entities or individuals to appear before the court for
  174  the purpose of contesting any motion for an order approving
  175  payment of attorney’s fees, costs, or related expenses. The fact
  176  that the Justice Administrative Commission has not objected to
  177  any portion of the billing or to the sufficiency of the
  178  documentation is not binding on the court.
  179         (d) If the chief judge or a single designee finds that
  180  counsel has proved by competent and substantial evidence that
  181  the case required extraordinary and unusual efforts, the chief
  182  judge or designee shall order the compensation to be paid to the
  183  attorney at a percentage above the flat fee rate, depending on
  184  the extent of the unusual and extraordinary effort required. The
  185  percentage must shall be only the rate necessary to ensure that
  186  the fees paid are not confiscatory under common law. The
  187  percentage may not exceed 200 percent of the established flat
  188  fee, absent a specific finding that 200 percent of the flat fee
  189  in the case would be confiscatory. If the chief judge or
  190  designee determines that 200 percent of the flat fee would be
  191  confiscatory, he or she shall order the amount of compensation
  192  using an hourly rate not to exceed $75 per hour for a noncapital
  193  case and $100 per hour for a capital case. However, the
  194  compensation calculated by using the hourly rate shall be only
  195  that amount necessary to ensure that the total fees paid are not
  196  confiscatory.
  197         (e) Any order granting relief under this subsection must be
  198  attached to the final request for a payment submitted to the
  199  Justice Administrative Commission.
  200         (f) For criminal cases only, the payment of fees when the
  201  court orders payment in excess of the flat fee established by
  202  law, shall be paid as follows:
  203         1. The flat fee shall be paid from funds appropriated to
  204  the Justice Administrative Commission in the General
  205  Appropriations Act.
  206         2. The amount ordered by the court in excess of the flat
  207  fee shall be paid by the Justice Administrative Commission in a
  208  special category designated for that purpose in the General
  209  Appropriations Act.
  210         3. If, during the fiscal year, all funds designated for
  211  payment of the amount ordered by the court in excess of the flat
  212  fee are spent, the amount of payments in excess of the flat fee
  213  shall be made from the due process funds, or other funds as
  214  necessary, appropriated to the state court system in the General
  215  Appropriations Act. Funds from the state court system must be
  216  used in a manner approved by the Chief Justice and administered
  217  by the Trial Court Budget Commission.
  218         (g)(f) The Justice Administrative Commission shall provide
  219  to the Office of the State Courts Administrator data concerning
  220  the number of cases approved for compensation in excess of the
  221  limitation and the amount of these awards by circuit and by
  222  judge. The office of the State Courts Administrator shall report
  223  the data quarterly in an electronic format to the chairs
  224  President of the Senate and, the Speaker of the House of
  225  Representatives appropriations committees, the Chief Justice of
  226  the Supreme Court, and the chief judge of each circuit.
  227         Section 4. Section 39.8297, Florida Statutes, is created to
  228  read:
  229         39.8297County funding for guardian ad litem personnel.—
  230         (1) A county and the executive director of the Statewide
  231  Guardian Ad Litem Office may enter into an agreement under which
  232  the county agrees to fund personnel positions to assist in the
  233  operation of the guardian ad litem program.
  234         (2) The agreement, at a minimum, must provide that:
  235         (a) Funding for the positions is provided on at least a
  236  fiscal-year basis.
  237         (b) The personnel whose employment is funded under the
  238  agreement are hired, supervised, managed, and fired by personnel
  239  of the Statewide Guardian Ad Litem Office. The office shall
  240  supervise the personnel whose employment is funded under the
  241  agreement; be responsible for compliance with all requirements
  242  of federal and state employment laws, including, but not limited
  243  to, Title VII of the Civil Rights Act of 1964, Title I of the
  244  Americans with Disabilities Act, 42 U.S.C. s. 1983, the Family
  245  Medical Leave Act, the Fair Labor Standards Act, chapters 447
  246  and 760, and ss. 112.3187, 440.105, and 440.205; and fully
  247  indemnify the county from any liability under such laws, as
  248  authorized by s. 768.28(19), to the extent such liability is the
  249  result of the acts or omissions of the guardian ad litem program
  250  or its agents or employees.
  251         (c) The county is the employer for the purposes of s.
  252  440.10 and chapter 443.
  253         (d) Employees funded by the county under this section and
  254  other county employees may be aggregated for purposes of a
  255  flexible benefits plan pursuant to s. 125 of the Internal
  256  Revenue Code of 1986.
  257         (e) The positions terminate upon the expiration of, or
  258  substantial breach of, the agreement or upon the expiration of
  259  county funding for the positions.
  260         (3) Positions funded under this section do not count
  261  against any formula or similar process used by the Statewide
  262  Guardian Ad Litem Office to determine personnel needs or levels
  263  of a judicial circuit’s Guardian ad Litem program.
  264         (4) This section does not obligate the state to fund any
  265  personnel positions.
  266         Section 5. Paragraph (b) of subsection (13) of section
  267  318.18, Florida Statutes, is amended to read:
  268         318.18 Amount of penalties.—The penalties required for a
  269  noncriminal disposition pursuant to s. 318.14 or a criminal
  270  offense listed in s. 318.17 are as follows:
  271         (13)
  272         (b) A county may impose a surcharge under subparagraph
  273  (a)1., subparagraph(a)2., or subparagraph(a)3., but may not
  274  impose more than one surcharge under this subsection. A county
  275  may elect to impose a different authorized surcharge but may not
  276  impose more than one surcharge at a time. The clerk of court
  277  shall report, no later than 30 days after the end of the
  278  quarter, the amount of funds collected under this subsection
  279  during each quarter of the fiscal year. The clerk shall submit
  280  the report, in an electronic a format developed by the Florida
  281  Clerks of Court Operations Corporation Office of State Courts
  282  Administrator, to the chief judge of the circuit and the Florida
  283  Clerks of Court Operations Corporation. The corporation shall
  284  submit the report in an electronic format to, the Governor, the
  285  President of the Senate, the Speaker of the House of
  286  Representatives, and the board of county commissioners.
  287         Section 6. This act shall take effect July 1, 2011.
  288  
  289  ================= T I T L E  A M E N D M E N T ================
  290         And the title is amended as follows:
  291         Delete everything before the enacting clause
  292  and insert:
  293                        A bill to be entitled                      
  294         An act relating to the state judicial system; amending
  295         s. 27.511, F.S.; authorizing each office of criminal
  296         conflict and civil regional counsel to create a
  297         direct-support organization; prescribing requirements
  298         related to the creation and operation of the direct
  299         support organization; amending s. 27.52, F.S.;
  300         providing the clerk with the discretion to conduct a
  301         review of the county’s property records to confirm
  302         indigency; amending s. 27.5304, F.S.; providing for
  303         the payment of attorney’s fees that exceed the limits
  304         prescribed by law; creating s. 39.8297, F.S.;
  305         providing for county funding of additional guardian ad
  306         litem personnel; requiring an agreement between the
  307         county and the Statewide Guardian Ad Litem Office;
  308         specifying responsibility for such positions; amending
  309         s. 318.18, F.S.; requiring the clerk of court and the
  310         Florida Clerks of Court Operations Corporation to
  311         submit reports on local traffic assessments in an
  312         electronic format; providing an effective date.