Florida Senate - 2024 CS for SB 116
By the Committee on Criminal Justice; and Senator Burgess
591-02985-24 2024116c1
1 A bill to be entitled
2 An act relating to child maintenance restitution;
3 creating s. 775.088, F.S.; defining the term “child
4 maintenance restitution”; authorizing a court to order
5 a defendant to pay child maintenance restitution to
6 the surviving parent or guardian of a minor if the
7 defendant is convicted of violating specified
8 provisions of law and the deceased victim of the
9 offense was the parent or guardian of the child;
10 requiring monthly payments; providing an exception;
11 requiring the court to determine an amount that is
12 reasonable and necessary based on specified relevant
13 factors if it sentences the defendant to pay child
14 maintenance restitution; providing for the resolution
15 of disputes as to the proper amount of child
16 maintenance restitution; providing for the collection,
17 disbursement, and enforcement of child maintenance
18 restitution; providing requirements for the issuance
19 of income deduction orders with an order for
20 restitution; specifying requirements for a notice that
21 is required to accompany income deduction orders;
22 providing for enforcement of income deduction orders;
23 prohibiting a person from discharging, refusing to
24 employ, or taking disciplinary action against an
25 employee subject to child maintenance restitution;
26 providing requirements for payors; providing civil
27 penalties; providing for payments after a defendant’s
28 incarceration; specifying circumstances under which
29 child maintenance restitution may not be ordered or
30 under which child maintenance restitution must be an
31 offset by a judgment award; providing that a court may
32 modify an order of child maintenance restitution;
33 providing for jurisdiction of the defendant; providing
34 an effective date.
35
36 Be It Enacted by the Legislature of the State of Florida:
37
38 Section 1. Section 775.088, Florida Statutes, is created to
39 read:
40 775.088 Child maintenance restitution.—
41 (1) As used in this section, the term “child maintenance
42 restitution” means a court-ordered obligation for monetary
43 support for the care, maintenance, training, and education of a
44 child younger than 18 years of age whose parent or guardian is a
45 deceased victim of an offense specified in subsection (2).
46 (2) In addition to any punishment, the court may order a
47 defendant convicted of a violation of s. 316.193(3)(c)3., s.
48 782.04, s. 782.07(1), or s. 782.071(1), or any offense resulting
49 in the death of a parent or guardian, to make child maintenance
50 restitution to the surviving parent or guardian of a minor child
51 if the deceased victim of the offense was the parent or guardian
52 of such child. Such obligation must be paid monthly, unless
53 otherwise ordered by the court, until such child reaches 18
54 years of age.
55 (3) If a sentencing court orders the defendant to pay child
56 maintenance restitution, the court must determine an amount that
57 is reasonable and necessary for the support of each child of the
58 deceased victim after considering all relevant factors,
59 including, but not limited to, all of the following:
60 (a) The financial needs and resources of the child.
61 (b) The financial needs and resources of the surviving
62 parent or guardian of the child, including the state if the
63 child is in the custody of the Department of Children and
64 Families.
65 (c) The standard of living to which the child is
66 accustomed.
67 (d) The physical and emotional condition of the child and
68 the child’s educational needs.
69 (e) The child’s physical and legal custody arrangements.
70 (f) The reasonable work-related child care expenses of the
71 surviving parent or guardian.
72 (4) Any dispute as to the proper amount of child
73 maintenance restitution must be resolved by the court by the
74 preponderance of the evidence. The court may consider hearsay
75 evidence for this purpose, provided that it finds that the
76 hearsay evidence has a minimal indicia of reliability. The
77 burden of demonstrating an amount that is reasonable and
78 necessary for the support of the victim’s child or children is
79 on the state attorney.
80 (5) The court may order the clerk of the court to collect,
81 enforce, and dispense child maintenance restitution payments.
82 (6)(a) Issuance of income deduction order with an order for
83 child maintenance restitution.—
84 1. Upon the entry of an order for restitution, the court
85 must enter a separate order for income deduction if one has not
86 been entered.
87 2. The income deduction order must direct a payor to deduct
88 from all income due and payable to the defendant the amount
89 required by the court to meet the defendant’s obligation.
90 3. The income deduction order must be effective as long as
91 the order for restitution upon which it is based is effective or
92 until further order of the court.
93 4. When the court orders the income deduction, the court
94 shall furnish to the defendant a statement of his or her rights,
95 remedies, and duties in regard to the income deduction order.
96 The statement must include all of the following:
97 a. All fees or interest imposed.
98 b. The total amount of income to be deducted for each pay
99 period.
100 c. A statement that the income deduction order applies to
101 current and subsequent payors and periods of employment.
102 d. A statement that a copy of the income deduction order
103 will be served on the defendant’s payor or payors.
104 e. A statement that the defendant is required to notify the
105 clerk of the court within 7 days after changes in the
106 defendant’s address or payors, or the addresses of his or her
107 payors.
108 (b) Enforcement of income deduction orders.—
109 1. The clerk of the court or the defendant’s probation
110 officer shall serve an income deduction order and the notice
111 described in subparagraph 4. to each of the defendant’s payors,
112 unless the defendant has applied for a hearing to contest the
113 enforcement of the income deduction order.
114 2.a. Service by or upon any person who is a party to a
115 proceeding under this paragraph must be made in the manner
116 prescribed in the Florida Rules of Civil Procedure for service
117 upon parties.
118 b. Service upon the defendant’s payor or successor payor
119 under this paragraph must be made by prepaid certified mail,
120 return receipt requested, or in the manner prescribed in chapter
121 48.
122 3. Within 15 days after having an income deduction order
123 entered against him or her, the defendant may apply for a
124 hearing to contest the enforcement of the income deduction order
125 on the ground of mistake of fact regarding the amount of
126 restitution owed. The timely request for a hearing stays the
127 service of an income deduction order on all payors of the
128 defendant until a hearing is held and a determination is made as
129 to whether the enforcement of the income deduction order is
130 proper.
131 4. The notice to each payor may contain only that
132 information necessary for the payor to comply with the income
133 deduction order. The notice must:
134 a. Require the payor to deduct from the defendant’s income
135 the amount specified in the income deduction order and to pay
136 that amount to the clerk of the court;
137 b. Instruct the payor to implement the income deduction
138 order no later than the first payment date that occurs more than
139 14 days after the date the income deduction order was served on
140 the payor;
141 c. Instruct the payor to forward within 2 days after each
142 payment date to the clerk of the court the amount deducted from
143 the defendant’s income and a statement as to whether the amount
144 totally or partially satisfies the periodic amount specified in
145 the income deduction order;
146 d. Specify that, if a payor fails to deduct the proper
147 amount from the defendant’s income, the payor is liable for the
148 amount the payor should have deducted plus costs, interest, and
149 reasonable attorney fees;
150 e. State that the income deduction order and the notice to
151 payor are binding on the payor until further notice by the court
152 or until the payor no longer provides income to the defendant;
153 f. Instruct the payor that, when he or she no longer
154 provides income to the defendant, the payor must notify the
155 clerk of the court and must also provide the defendant’s last
156 known address and the name and address of the defendant’s new
157 payor, if known, and that, if the payor violates this sub
158 subparagraph, the payor is subject to a civil penalty not to
159 exceed $250 for the first violation or $500 for any subsequent
160 violation;
161 g. State that the payor may not discharge, refuse to
162 employ, or take disciplinary action against the defendant
163 because of an income deduction order and that a violation of
164 this sub-subparagraph subjects the payor to a civil penalty not
165 to exceed $250 for the first violation or $500 for any
166 subsequent violation;
167 h. Inform the payor that, when he or she receives income
168 deduction orders requiring that the income of two or more
169 defendants be deducted and sent to the same clerk of the court,
170 the payor may combine the amounts that are to be paid to the
171 depository in a single payment as long as he or she identifies
172 the portion of the payment attributable to each defendant; and
173 i. Inform the payor that if the payor receives more than
174 one income deduction order against the same defendant, he or she
175 must contact the court for further instructions.
176 5. The clerk of the court shall enforce income deduction
177 orders against the defendant’s successor payor who is located in
178 this state in the same manner prescribed in this subsection for
179 the enforcement of an income deduction order against an original
180 payor.
181 6. A person may not discharge, refuse to employ, or take
182 disciplinary action against an employee because of the
183 enforcement of an income deduction order. An employer who
184 violates this subparagraph is subject to a civil penalty not to
185 exceed $250 for the first violation or $500 for any subsequent
186 violation.
187 7. When a payor no longer provides income to a defendant,
188 the payor must notify the clerk of the court and must provide
189 the defendant’s last known address and the name and address of
190 the defendant’s new payor, if known. A payor who violates this
191 subparagraph is subject to a civil penalty not to exceed $250
192 for the first violation or $500 for a subsequent violation.
193 (7) A defendant who is ordered to pay child maintenance
194 restitution and is incarcerated and unable to pay such
195 restitution may have up to 1 year after release from
196 incarceration to begin payment. Such defendant must enter into a
197 payment plan with the clerk of the court to address any
198 arrearage. If a defendant’s child maintenance restitution
199 payments are set to terminate but the defendant’s obligation is
200 not paid in full, such payments must continue until the entire
201 arrearage is paid.
202 (8)(a) If the surviving parent or guardian of the child
203 brings a civil action against the defendant before the
204 sentencing court orders child maintenance restitution and the
205 surviving parent or guardian obtains a judgment in a civil suit,
206 child maintenance restitution may not be ordered under this
207 section.
208 (b) If the court orders the defendant to make child
209 maintenance restitution under this section and the surviving
210 parent or guardian subsequently brings a civil action and
211 obtains a judgment, the child maintenance restitution order must
212 be offset by the amount of the judgment awarded in the civil
213 action.
214 (9) The court may modify an order of child maintenance
215 restitution upon finding that such modification is reasonable
216 and necessary, based on a substantial change in circumstance.
217 (10) The court may retain jurisdiction over a defendant
218 whom the court has ordered to pay child maintenance restitution
219 until such restitution order is satisfied or until the court
220 orders otherwise.
221 Section 2. This act shall take effect July 1, 2024.