October 18, 2019
Print This PagePrint This Page

  *
Session:
Bill #:
Session:
Chamber: View Search Tips
Search Term:
Year: View Search Tips
Search Term:
       Florida Senate - 2010                                    SB 1714
       
       
       
       By Senator Lawson
       
       
       
       
       6-00717-10                                            20101714__
    1                        A bill to be entitled                      
    2         An act relating to litigation; amending s. 39.401,
    3         F.S.; prohibiting a person from taking a child alleged
    4         to be dependant into custody except in cases involving
    5         an immediate threat to the health or safety of the
    6         child; providing additional exceptions; amending s.
    7         39.702, F.S.; requiring a citizen review panel to be
    8         established in each judicial circuit; amending s.
    9         39.809, F.S.; providing for recommendations by citizen
   10         review panels in hearings or trials on petitions for
   11         termination of parental rights; limiting continuances
   12         in such cases; providing exceptions; providing that
   13         hearings or trials involving termination of parental
   14         rights are open to the public; providing an exception;
   15         requiring that reports and recommended orders from
   16         citizen review panels accompany the written orders in
   17         certain proceedings; creating s. 46.061, F.S.;
   18         providing that in negligence cases, judgment must be
   19         entered on the basis of percentage of fault and not
   20         joint and several liability; defining the term
   21         “negligence cases”; providing for the application of
   22         joint and several liability to certain cases; creating
   23         s. 46.071, F.S.; providing that certain privileges and
   24         immunities are not valid defenses in certain actions
   25         under statute or in other specified actions; providing
   26         for construction; creating s. 46.081, F.S.; providing
   27         for assignability of claims; providing that claims or
   28         rights in injury may be given as a divided part or
   29         interest; providing for standing of parties having
   30         executed an assignment or executed a giving of
   31         interest; providing for construction of provisions;
   32         amending s. 57.105, F.S.; revising requirements
   33         concerning motions to obtain sanctions for raising
   34         unsupported claims or defenses; providing for
   35         construction of provisions; providing that the section
   36         creates a substantive right to attorney’s fees;
   37         providing definitions; providing intent; amending s.
   38         59.041, F.S.; providing requirements for court
   39         opinions relating to claims of harmless error;
   40         providing that neither the court file nor the
   41         appellate record requires a transcript or statement of
   42         proceedings for a proper, full examination of the case
   43         before the court; deleting a provision for liberal
   44         construction of harmless error provisions; amending s.
   45         59.06, F.S.; revising provision relating to motions
   46         for dismissal or summary judgment; providing that an
   47         order sustaining a motion for dismissal or summary
   48         judgment without leave to amend or with prejudice or
   49         absent an allowance for some other further action
   50         expressly rendered by the court is an order sufficient
   51         to allow an interlocutory appeal to be made within a
   52         specified period; amending s. 454.18, F.S.; revising
   53         provisions relating to persons allowed to practice
   54         law; providing for lay representation in certain
   55         proceedings; providing for challenges to such
   56         representation; providing for application; amending s.
   57         454.23, F.S.; prohibiting specified acts by attorneys;
   58         providing criminal penalties; amending s. 768.81,
   59         F.S.; providing for apportionment of damages to
   60         nonparties; providing for construction; amending s.
   61         839.24, F.S.; prohibiting violations concerning
   62         certain procedural rules and laws; providing
   63         penalties; amending s. 843.0855, F.S.; prohibiting
   64         certain acts relating to obstruction of justice and
   65         deprivation of rights under color of law during court
   66         proceedings; providing penalties; providing for
   67         construction; amending ss. 924.051 and 924.33, F.S.;
   68         providing requirements for court opinions in specified
   69         cases; providing that neither the court file nor the
   70         appellate record requires a transcript or statement of
   71         proceedings in order for a proper, full examination of
   72         the case before the court; creating s. 939.051, F.S.;
   73         providing sanctions for persons found to have abused
   74         the judicial system; providing for motions for
   75         sanctions; providing for construction; repealing s.
   76         924.395, F.S., relating to sanctions; amending s.
   77         985.35, F.S.; requiring the Department of Juvenile
   78         Justice to adopt rules governing the procedures that
   79         may be used to restrain a child upon his or her
   80         arrival at the courthouse; prohibiting the use of
   81         instruments of restraint on a child after the child
   82         arrives at the courthouse; prohibiting subjecting a
   83         child to extended periods of isolation; providing
   84         specified exemptions; amending s. 985.483, F.S.;
   85         conforming a cross-reference; creating s. 985.602,
   86         F.S.; prohibiting the use of restraints on a child;
   87         providing exceptions; providing an effective date.
   88  
   89  Be It Enacted by the Legislature of the State of Florida:
   90  
   91         Section 1. Subsection (1) of section 39.401, Florida
   92  Statutes, is amended to read:
   93         39.401 Taking a child alleged to be dependent into custody;
   94  law enforcement officers and authorized agents of the
   95  department.—
   96         (1) Except in cases involving an immediate threat to the
   97  health or safety of a child, a person, including a law
   98  enforcement officer, a duly authorized person, or any other
   99  officer of the court or of the state, may not take a child may
  100  only be taken into custody unless the child is taken into
  101  custody:
  102         (a) Pursuant to the provisions of this part, based upon
  103  sworn testimony, either before or after a petition is filed
  104  resulting in a court order issued after a finding of probable
  105  cause by the court authorizing taking a child into custody; or
  106         (b) By a law enforcement officer, or an authorized agent of
  107  the department, if the officer or authorized agent has probable
  108  cause resulting in a court order issued supporting to support a
  109  finding:
  110         1. That the child has been abused, neglected, or abandoned,
  111  or is suffering from or is in imminent danger of illness or
  112  injury as a result of abuse, neglect, or abandonment;
  113         2. That the parent or legal custodian of the child has
  114  materially violated a condition of placement imposed by the
  115  court; or
  116         3. That the child has no parent, legal custodian, or
  117  responsible adult relative immediately known and available to
  118  provide supervision and care.
  119         Section 2. Subsection (1) of section 39.702, Florida
  120  Statutes, is amended to read:
  121         39.702 Citizen review panels.—
  122         (1) Citizen review panels shall may be established in each
  123  judicial circuit and shall be authorized by an administrative
  124  order executed by the chief judge of each circuit. The court
  125  shall administer an oath of office to each citizen review panel
  126  member which shall authorize the panel member to participate in
  127  citizen review panels and make recommendations to the court
  128  pursuant to the provisions of this section and s. 39.809.
  129         Section 3. Section 39.809, Florida Statutes, is amended to
  130  read:
  131         39.809 Adjudicatory hearing or trial.—
  132         (1) In a hearing or trial on a petition for termination of
  133  parental rights, the court shall consider, assisted by a report
  134  and a recommended order from the citizen review panel, the
  135  elements required for termination. Each of these elements must
  136  be established by clear and convincing evidence before the
  137  petition is granted.
  138         (2) The adjudicatory hearing must be held within 120 45
  139  days after the advisory hearing, but reasonable continuances for
  140  the purpose of investigation, discovery, or procuring counsel or
  141  witnesses may, when necessary, be granted. Continuances may not
  142  extend beyond 1 year after the advisory hearing unless there are
  143  compelling reasons or extraordinary circumstances,
  144  notwithstanding s. 39.0136.
  145         (3) The adjudicatory hearing or trial must be conducted by
  146  the judge without a jury, unless a demand for a jury is made by
  147  either party, applying the rules of evidence in use in civil
  148  cases and adjourning the case from time to time as necessary.
  149  For purposes of the adjudicatory hearing or trial, to avoid
  150  unnecessary duplication of expense, the judge may consider in
  151  court testimony previously given at any properly noticed
  152  hearing, without regard to the availability or unavailability of
  153  the witness at the time of the actual adjudicatory hearing or
  154  trial, if the recorded testimony itself is made available to the
  155  judge. Consideration of such testimony does not preclude the
  156  witness being subpoenaed to answer supplemental questions.
  157         (4) All hearings or trials involving termination of
  158  parental rights are open confidential and closed to the public,
  159  except upon the written motion to the court by the parents or
  160  guardian of the child or children who are the subject of the
  161  hearing or trial that it be made confidential and closed.
  162  Hearings or trials involving more than one child may be held
  163  simultaneously when the children involved are related to each
  164  other or were involved in the same case. The child and the
  165  parents may be examined separately and apart from each other.
  166         (5) The judge shall enter a written order with the findings
  167  of fact and conclusions of law. The report and recommended order
  168  from the citizen review panel must accompany the written order.
  169         Section 4. Section 46.061, Florida Statutes, is created to
  170  read:
  171         46.061Joint and several liability.—
  172         (1)(a)In a negligence case, the court shall enter judgment
  173  against each party and nonparty liable on the basis of that
  174  party’s percentage of fault under s. 768.81 and not, initially,
  175  on the basis of the doctrine of joint and several liability.
  176         (b)As used in this section, the term “negligence case”
  177  includes, but is not limited to, civil actions for damages based
  178  upon theories of negligence, strict liability, products
  179  liability, and professional malpractice whether couched in terms
  180  of contract or tort or breach of warranty and like theories. In
  181  determining whether a case falls within the definition of a
  182  negligence case, the court shall look to the substance of the
  183  action and not the terms used by the parties to characterize the
  184  case.
  185         (2)The doctrine of joint and several liability shall apply
  186  to any action brought by a party to recover actual economic
  187  damages resulting from pollution, to any action based upon an
  188  intentional tort, or to any cause of action as to which
  189  application of the doctrine of joint and several liability is
  190  specifically provided by chapter 403, chapter 498, chapter 517,
  191  chapter 542, or chapter 895.
  192         Section 5. Section 46.071, Florida Statutes, is created to
  193  read:
  194         46.071Privilege and immunity defenses.—
  195         (1)Litigation privilege, judicial, qualified, or absolute
  196  immunity, and similar defenses or privileges are not valid
  197  common law defenses in actions under statutes that provide for
  198  rights and claims in injury, tort, or contract liability for
  199  acts that may be or are committed, directly or indirectly,
  200  involving judicial or administrative proceedings.
  201         (2)Litigation privilege, judicial, qualified, or absolute
  202  immunity, and the like are not viable or valid defenses in
  203  actions on claims and rights for abuse of process, malicious
  204  prosecution, and fraud upon the court, also known as extrinsic
  205  fraud.
  206         (3)This section shall be strictly construed, enforced, and
  207  complied with.
  208         Section 6. Section 46.081, Florida Statutes, is created to
  209  read:
  210         46.081Assignment of or interest in claims and rights.—
  211         (1)All claims or rights in injury, tort, contract, or
  212  statute, whether of a commercial or personal nature, are wholly,
  213  or partly assignable, and any fiduciary or confidential
  214  relationship is waived by implication in such an executed
  215  assignment.
  216         (2)All claims or rights in injury, tort, contract, or
  217  statute, whether of a commercial or personal nature, may be
  218  given as a divided or a part interest, and any fiduciary or
  219  confidential relationship is waived by implication in such an
  220  executed giving of interest.
  221         (3)Parties having executed an assignment or executed a
  222  giving of interest have standing in all matters applicable to
  223  the claims or rights.
  224         (4)This section shall be strictly construed, enforced, and
  225  complied with.
  226         Section 7. Section 57.105, Florida Statutes, is amended to
  227  read:
  228         57.105 Attorney’s fee; sanctions for raising unsupported
  229  claims or defenses; service of motions; damages for delay of
  230  litigation.—
  231         (1) Upon the court’s initiative or motion of any party, the
  232  court shall award a reasonable attorney’s fee to be paid to the
  233  prevailing party in equal amounts by the losing party and the
  234  losing party’s attorney on any claim or defense at any time
  235  during a civil proceeding or action in which the court finds
  236  that the losing party or the losing party’s attorney knew or
  237  should have known that a claim or defense when initially
  238  presented to the court or at any time before trial:
  239         (a) Was not supported by the material facts necessary to
  240  establish the claim or defense; or
  241         (b) Would not be supported by the application of then
  242  existing law to those material facts.
  243  
  244  However, the losing party’s attorney is not personally
  245  responsible if he or she has acted in good faith, based on the
  246  representations of his or her client as to the existence of
  247  those material facts. If the court awards attorney’s fees to a
  248  claimant pursuant to this subsection, the court shall also award
  249  prejudgment interest.
  250         (2) Paragraph (1)(b) does not apply if the court determines
  251  that the claim or defense was initially presented to the court
  252  as a good faith argument for the extension, modification, or
  253  reversal of existing law or the establishment of new law, as it
  254  applied to the material facts, with a reasonable expectation of
  255  success.
  256         (3) At any time in any civil proceeding or action in which
  257  the moving party proves by a preponderance of the evidence that
  258  any action taken by the opposing party, including, but not
  259  limited to, the filing of any pleading or part thereof, the
  260  assertion of or response to any discovery demand, the assertion
  261  of any claim or defense, or the response to any request by any
  262  other party, was taken primarily for the purpose of unreasonable
  263  delay, the court shall award damages to the moving party for its
  264  reasonable expenses incurred in obtaining the order, which may
  265  include attorney’s fees, and other loss resulting from the
  266  improper delay.
  267         (4) A party is entitled to an award of sanctions under this
  268  section only if a motion is by a party seeking sanctions under
  269  this section must be served by a party seeking sanctions under
  270  this section. The motion but may not be filed with or presented
  271  to the court unless, within 21 days after service of the motion,
  272  the challenged paper, claim, defense, contention, allegation, or
  273  denial is not withdrawn or appropriately corrected. Any motion
  274  filed with the court which does not comply with this subsection
  275  is null and void. This subsection is substantive and may not be
  276  waived except in writing. This subsection does not apply to
  277  sanctions ordered upon the court’s initiative.
  278         (5) In administrative proceedings under chapter 120, an
  279  administrative law judge shall award a reasonable attorney’s fee
  280  and damages to be paid to the prevailing party in equal amounts
  281  by the losing party and a losing party’s attorney or qualified
  282  representative in the same manner and upon the same basis as
  283  provided in subsections (1)-(4). Such award shall be a final
  284  order subject to judicial review pursuant to s. 120.68. If the
  285  losing party is an agency as defined in s. 120.52(1), the award
  286  to the prevailing party shall be against and paid by the agency.
  287  A voluntary dismissal by a nonprevailing party does not divest
  288  the administrative law judge of jurisdiction to make the award
  289  described in this subsection.
  290         (6) The provisions of This section must be strictly
  291  enforced and complied with and is are supplemental to other
  292  sanctions or remedies available under law or under court rules.
  293         (7) If a contract contains a provision allowing attorney’s
  294  fees to a party when he or she is required to take any action to
  295  enforce the contract, the court may also allow reasonable
  296  attorney’s fees to the other party when that party prevails in
  297  any action, whether as plaintiff or defendant, with respect to
  298  the contract. This subsection applies to any contract entered
  299  into on or after October 1, 1988.
  300         (8)(a)This section creates substantive rights to the award
  301  of attorney’s fees and any procedural provisions are directly
  302  related to the definition of those rights. Any procedural
  303  aspects of this section are intended to implement the
  304  substantive provisions of the law.
  305         (b)For purposes of this section, the term:
  306         1.“Attorney” means a lawyer and, where applicable, a lay,
  307  qualified, or designated representative appearing for a party.
  308         2.“Party” means any person represented by a attorney or
  309  appearing pro se.
  310         (c)It is the intent of the Legislature that the award of
  311  attorney fees, costs, damages, and sanctions under this section
  312  apply and are a right to any party, lawyer, or representative
  313  equally whether the person is or is not a lawyer.
  314         Section 8. Section 59.041, Florida Statutes, is amended to
  315  read:
  316         59.041 Harmless error; effect.—A No judgment may not shall
  317  be set aside or reversed, or new trial granted by any court of
  318  the state in any cause, civil or criminal, on the ground of
  319  misdirection of the jury or the improper admission or rejection
  320  of evidence or for error as to any matter of pleading or
  321  procedure, unless first, contrary to binding precedent or stare
  322  decisis, and if not, secondly, in the opinion of the court to
  323  which application is made, after an examination of the entire
  324  case it shall appear that the error complained of has resulted
  325  in a miscarriage of justice or manifest injustice. The opinion
  326  of the appellate court must be supported by at least one binding
  327  authority for each point for review which must be cited in the
  328  final order or opinion, absent the setting of any new precedent.
  329  Except in the review of criminal cases, neither the court file
  330  nor the appellate record requires a transcript or statement of
  331  proceedings for a proper and full examination of the case before
  332  the court. This section shall be liberally construed.
  333         Section 9. Subsection (1) of section 59.06, Florida
  334  Statutes, is amended to read:
  335         59.06 Matters reviewable on appeal.—
  336         (1) WHAT MAY BE ASSIGNED AS ERROR.—All judgments and orders
  337  made in any action wherein the trial court:
  338         (a) May allow or refuse to allow any motion:
  339         1. For a new trial or rehearing,
  340         2. For leave to amend pleadings,
  341         3. For leave to file new or additional pleadings,
  342         4. To amend the record, or
  343         5. For continuance of the action; or
  344         (b) Shall sustain or overrule any motion to dismiss the
  345  action for summary judgment or dismissal of the action or a
  346  pleading may be assigned as error upon any appeal from the final
  347  judgment or order in the action. For purposes of this
  348  subsection, an order sustaining or overruling a motion without
  349  leave to amend, with prejudice, or absent an allowance for some
  350  other further action expressly rendered by the court or rule is
  351  an order sufficient to allow an interlocutory appeal to be made
  352  to the circuit court appellate division within 30 days after the
  353  order is rendered. The appellate court shall hear and determine
  354  the matter so assigned under like rules as in other actions.
  355         Section 10. Section 454.18, Florida Statutes, is amended to
  356  read:
  357         454.18 Officers and persons authorized or unauthorized not
  358  allowed to practice.—
  359         (1)A No sheriff or full-time deputy sheriff may not
  360  practice law in this state.
  361         (2)A clerk of any court, or full-time deputy clerk of any
  362  court may not thereof, shall practice law in this state.,
  363         (3)A nor shall any person who is not of good moral
  364  character, or who has been convicted of an infamous crime may
  365  not be entitled to practice law in this state.
  366         (4)Any person who is not licensed or otherwise authorized
  367  may not practice law in this state.
  368         (5)Any person who has been knowingly disbarred and who has
  369  not been lawfully reinstated or is knowingly under suspension
  370  from the practice of law by the Florida Supreme Court may not
  371  practice law in this state. A person may not be denied the right
  372  to practice on account of sex, race, or color. And
  373         (6) Any person, whether an attorney or not, or whether
  374  within the exceptions mentioned above or not:,
  375         (a) May conduct his or her own cause in any court of this
  376  state, or before any public board, committee, or officer,
  377  subject to the lawful rules and discipline of such court, board,
  378  committee, or officer.
  379         (b)Has a qualified right to lay representation or to be
  380  represented by a person of his or her choice as prescribed by:
  381         1.Chapter 120, concerning a qualified representative.
  382         2.Chapter 44, concerning a designated representative.
  383         3.Section 709.08, concerning an attorney in fact.
  384         4.Decisions or rules of the Florida Supreme Court
  385  concerning representation by a realty property manager.
  386         5.Decisions or rules of the Florida Supreme Court
  387  concerning a nonlawyer using approved forms.
  388         6.Decisions or rules of the Florida Supreme Court
  389  concerning representation in county court or small claims court
  390  civil proceedings.
  391         7.Rule 5-15, Florida Rules Relating to Admissions to the
  392  Bar.
  393         8.Judicial discretion under the inherent authority
  394  doctrine.
  395         9.Federal law, or any other clearly expressed rule,
  396  statute, or court or administrative decision or order under
  397  other federal or state law and authority.
  398         (7)(a)Any party, counsel of record, judicial or quasi
  399  judicial officer, whether required or not, absent federal
  400  preemption, may inquire of and challenge the competence and
  401  character of the lay representative upon notice and hearing. The
  402  matters in such hearing to be considered shall be in accordance
  403  with Rules 28-106.106 and 28-106.107, Florida Administrative
  404  Code, paragraph (8)(b), and as applicable as possible where the
  405  involvement of the representative pertains to civil or criminal
  406  proceedings.
  407         (b)A finding that the lay representative is inadequate in
  408  such matters upon disposition of hearing, the lay representative
  409  shall be disqualified in conducting the cause; otherwise, the
  410  cause shall proceed authorizing and qualifying the lay
  411  representative to maintain the cause.
  412         (c)Upon rendition of a finding that the lay representative
  413  is disqualified from any further direct or indirect
  414  participation in the cause absent remedies of paragraph (d) or
  415  paragraph (e), the disqualified lay representative may be found
  416  in contempt for lack of standing on the cause, reported to The
  417  Florida Bar’s unlicensed practice of law division, or state
  418  attorney for prosecution under s. 454.23. This paragraph may not
  419  be construed or executed in violation of the disqualified lay
  420  representative’s right to the protection from double jeopardy.
  421         (d)Review of the determination disqualifying the lay
  422  representative shall be by petition for certiorari.
  423         (e)Notwithstanding paragraphs (b) and (c), if the
  424  disqualified lay representative has a valid interest in the
  425  cause or by assignment or some other basis in law, the
  426  disqualified lay representative may appear pro se or through
  427  counsel only by joinder, to intervene, or by substitution as
  428  allowed by law; otherwise, an appearance shall be without
  429  standing or the unauthorized practice of law.
  430         (8)(a) The provisions of this section restricting the
  431  practice of law by a sheriff or clerk, or full-time deputy
  432  thereof, do not apply in a case where such person is
  433  representing the office or agency in the course of his or her
  434  duties as an attorney at law and, as to lay representation,
  435  shall be strictly complied with and enforced.
  436         (b)The officers and persons listed in subsections (1),
  437  (2), (3), and (5) shall not be otherwise authorized to practice
  438  law under paragraph (6)(b) or subsection (7) absent a federal
  439  law preempting such provision.
  440         (9)A person may not be denied the right to practice law on
  441  account of sex, race, or color.
  442         (10)This section has retroactive and prospective
  443  application in law.
  444         Section 11. Section 454.23, Florida Statutes, is amended to
  445  read:
  446         454.23 Penalties.—
  447         (1) Any person not licensed and admitted to The Florida Bar
  448  or otherwise authorized as prescribed by s. 454.18(6) to
  449  practice law in this state who practices law in this state or
  450  holds himself or herself out to the public as qualified to
  451  practice law in this state, or who willfully pretends to be, or
  452  willfully takes or uses any name, title, addition, or
  453  description implying that he or she is qualified, or recognized
  454  by law as qualified, to practice law in this state, commits a
  455  felony of the third degree, punishable as provided in s.
  456  775.082, s. 775.083, or s. 775.084.
  457         (2)Any attorney duly admitted or authorized to practice in
  458  this state who willfully or intentionally violates, or causes
  459  any person to violate, the rules and discipline of any court,
  460  tribunal, or officer in any matter of order or procedure in this
  461  state, not in conflict with the constitution or laws of this
  462  state, commits a misdemeanor of the first degree, punishable as
  463  provided in s. 775.082 or s. 775.083.
  464         (3)Any attorney duly admitted or authorized to practice in
  465  this state who willfully or intentionally violates the oath of
  466  admission to The Florida Bar, or commits or causes any act in
  467  violation of 18 U.S.C. s. 241 or 18 U.S.C. s. 242 under federal
  468  law before any court, tribunal, or officer in this state,
  469  commits a felony of the third degree, punishable as provided in
  470  s. 775.082, s. 775.083, or s. 775.084.
  471         Section 12. Subsection (3) of section 768.81, Florida
  472  Statutes, is amended to read:
  473         768.81 Comparative fault.—
  474         (3) APPORTIONMENT OF DAMAGES.—In cases to which this
  475  section applies, the court shall enter judgment against each
  476  party and nonparty liable on the basis of such party’s
  477  percentage of fault and not, initially, on the basis of the
  478  doctrine of joint and several liability.
  479         (a) In order to allocate any or all fault to a nonparty, a
  480  defendant must affirmatively plead the fault of a nonparty and,
  481  absent a showing of good cause, identify the nonparty, if known,
  482  or describe the nonparty as specifically as practicable, either
  483  by preliminary or joinder motion, or in the initial responsive
  484  pleading when the answer and defenses are first due presented,
  485  or through third-party practice such as interpleader,
  486  contribution, indemnification, or subrogation, subject to
  487  amendment any time before trial in accordance with the Florida
  488  Rules of Civil Procedure. Absent a voluntary appearance, some
  489  form of service of process must be made on the nonparty thereby
  490  subjecting the nonparty to the jurisdiction of the court.
  491         (b) In order to allocate any or all fault to a nonparty and
  492  include the named or unnamed nonparty on the verdict form for
  493  purposes of apportioning damages, a defendant must prove at
  494  trial, by a preponderance of the evidence, the fault of the
  495  nonparty in causing the plaintiff’s injuries; otherwise, the
  496  defendant shall be fully liable for the allocation of fault of
  497  the nonparty alleged.
  498         (c)A nonparty brought into the case who has been, in any
  499  way, absolved by a party, is immune, or may invoke a statute of
  500  limitations or statute of repose. Such avoidance or defense must
  501  be made known to the court with reasonable diligence by motion
  502  or pleading of a party or the nonparty, and, if proven, shall be
  503  reflected in the judgment with the determined percentage of
  504  fault as to liability and damages being nonexecutable against
  505  the nonparty. Otherwise, the judgment shall be held fully
  506  executable against a nonparty for the allocation of fault
  507  determined.
  508         (d)This section shall be strictly construed, enforced, and
  509  complied with.
  510         Section 13. Section 839.24, Florida Statutes, is amended to
  511  read:
  512         839.24 Penalty for Failure to perform duty required of
  513  officer; penalties.—A sheriff, judicial officer, quasi judicial
  514  officer county court judge, prosecuting officer, court reporter,
  515  stenographer, interpreter, or other officer required to perform
  516  any ministerial or nondiscretionary duty under any provision of
  517  the Florida Rules of Court or chapter 120 the criminal procedure
  518  law who willfully or negligently fails or corruptly refuses to
  519  perform his or her ministerial or nondiscretionary duty commits
  520  shall be guilty of a misdemeanor of the first second degree,
  521  punishable as provided in s. 775.082 or s. 775.083. This section
  522  must be strictly enforced by law enforcement agencies and state
  523  attorneys without discretion.
  524         Section 14. Subsection (4) of section 843.0855, Florida
  525  Statutes, is amended to read:
  526         843.0855 Criminal actions under color of law or through use
  527  of simulated legal process.—
  528         (4)(a) Any person who falsely under color of law attempts
  529  in any way to influence, intimidate, or hinder a public officer
  530  or law enforcement officer in the discharge of his or her
  531  official duties by means of, but not limited to, threats of or
  532  actual physical abuse or harassment, or through the use of
  533  simulated legal process, commits a felony of the third degree,
  534  punishable as provided in s. 775.082 or s. 775.083.
  535         (b)Any public servant or employee who under color of law
  536  in any manner intentionally obstructs or attempts to obstruct
  537  the due execution of the law, or with the intent to intimidate,
  538  hinder, deprive, or interrupt any officer, beverage enforcement
  539  agent, or other person or party in the legal performance of his
  540  or her duty or the exercise of his or her rights under the
  541  constitution or laws of this state or the United States; or in
  542  connection with or relating to any legal process, whether such
  543  intent is effected or not, commits a felony of the third degree,
  544  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  545  This paragraph must be strictly enforced by law enforcement
  546  agents and state attorneys.
  547         (c)Any public official or employee who under color of law
  548  in any manner intentionally renders any ruling, order, or
  549  opinion, or any action or inaction adverse or contrary to the
  550  doctrines of stare decisis, binding precedent, the supremacy
  551  clause of the United States Constitution, or his or her oath of
  552  office; or in connection with or relating to any legal process
  553  affecting persons or property, when clearly made apprised of
  554  such evidence or information, commits a felony of the second
  555  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  556  775.084, unless the official or employee has the authority to
  557  overrule or recede from such rule of law, or distinguishes such
  558  rule of law, or sets forth some other intervening or superseding
  559  evidence or information in the ruling, order or opinion, or
  560  action or inaction. This paragraph must be strictly enforced by
  561  law enforcement and state attorneys without discretion.
  562         (d)Any public official or employee or person who commits
  563  or causes any act in violation of 18 U.S.C. s. 241 or 18 U.S.C.
  564  s. 242; or in connection with or relating to any legal process
  565  affecting persons or property commits a felony of the second
  566  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  567  775.084. This paragraph must be strictly enforced by law
  568  enforcement and state attorneys without discretion.
  569         Section 15. Subsection (3) of section 924.051, Florida
  570  Statutes, is amended to read:
  571         924.051 Terms and conditions of appeals and collateral
  572  review in criminal cases.—
  573         (3) Subject to s. 59.041, an appeal may not be taken from a
  574  judgment or order of a trial court unless a prejudicial error is
  575  alleged and is properly preserved or, if not properly preserved,
  576  would constitute fundamental error. Subject to s. 59.041, a
  577  judgment or sentence may be reversed on appeal only when an
  578  appellate court determines after a review of the complete record
  579  that prejudicial error occurred and was properly preserved in
  580  the trial court or, if not properly preserved, would constitute
  581  fundamental error. The opinion of the court must be supported by
  582  at least one binding authority for each point for review that
  583  must be cited in the rendered final order or opinion, absent the
  584  setting of any new precedent. Except for in the review of
  585  criminal cases, neither the court file nor the appellate record
  586  requires a transcript or statement of proceedings for a proper,
  587  full examination of the case before the court.
  588         Section 16. Section 924.33, Florida Statutes, is amended to
  589  read:
  590         924.33 When judgment not to be reversed or modified.
  591  Subject to s. 59.041, A No judgment may not shall be reversed
  592  unless the appellate court is of the opinion, after an
  593  examination of all the appeal papers, that error was committed
  594  that injuriously affected the substantial rights of the
  595  appellant. It shall not be presumed that error injuriously
  596  affected the substantial rights of the appellant. The opinion of
  597  the court must be supported by at least one binding authority
  598  for each point for review that must be cited in the rendered
  599  final order or opinion, absent the setting of any new precedent.
  600  Except in the review of criminal cases, neither the court file
  601  nor the appellate record requires a transcript or statement of
  602  proceedings for a proper, full examination of the case before
  603  the court.
  604         Section 17. Section 939.051, Florida Statutes, is created
  605  to read:
  606         939.051Sanctions for unfounded offense, defense, or delay;
  607  service of motions.—
  608         (1)The Legislature strongly encourages the courts, through
  609  their inherent powers and pursuant to this section, to impose
  610  sanctions against any person, lawyer, or nonlawyer, including
  611  the state, within the court’s jurisdiction who is found at any
  612  time in any trial court or appellate court proceeding to have
  613  abused the judicial system in any way, including, but not
  614  limited to, the following:
  615         (a)Abused a petition for extraordinary relief or
  616  postconviction motion, or an appeal therefrom;
  617         (b)Abused or caused unreasonable delay in any pretrial
  618  proceeding;
  619         (c)Raised a claim that a court has found to be frivolous
  620  or procedurally barred or that should have been preserved by
  621  objection in the trial court or raised on a direct appeal;
  622         (d)Improperly withheld or misleadingly used evidence or
  623  testimony;
  624         (e)Adversely affected the orderly administration of
  625  justice; or
  626         (f)Partook in dilatory tactics, sandbagging, or any other
  627  improper practices.
  628         (2)Sanctions that the court may and should consider, when
  629  applicable and appropriate, include, but are not limited to:
  630         (a)Dismissal of a pleading or case.
  631         (b)Disciplinary sanctions.
  632         (c)A fine.
  633         (d)Imposition of costs, fees, expenses, or damages.
  634         (e)Any other sanction that is available to the court under
  635  its inherent powers.
  636         (3)A motion seeking sanctions under this section shall be
  637  filed by the state, a defendant, whether a lawyer or nonlawyer,
  638  if pro se, otherwise by his or her representing lawyer. The
  639  motion must clearly express facts demonstrating conduct as
  640  described in subsection (1), be verified, served on all the
  641  parties in the case, and filed with the court within 10 days
  642  after being subject to and apprised of the misconduct involved.
  643  Any motion filed with the court that does not comply with this
  644  subsection is void. This subsection is substantive and its
  645  requirements may not be waived except in writing. This
  646  subsection does not apply to sanctions ordered upon the court’s
  647  initiative.
  648         (4)Sanctions imposed against the state under paragraph
  649  (2)(d) shall be awarded and approved by the Chief Financial
  650  Officer in accordance with s. 939.13.
  651         (5)This section is supplemental to other sanctions or
  652  remedies available under law or under court rules.
  653         (6)This section must be strictly enforced and complied
  654  with.
  655         Section 18. Section 924.395, Florida Statutes, is repealed.
  656         Section 19. Section 985.35, Florida Statutes, is amended to
  657  read:
  658         985.35 Adjudicatory hearings; withheld adjudications;
  659  orders of adjudication.—
  660         (1) The adjudicatory hearing must be held as soon as
  661  practicable after the petition alleging that a child has
  662  committed a delinquent act or violation of law is filed and in
  663  accordance with the Florida Rules of Juvenile Procedure; but
  664  reasonable delay for the purpose of investigation, discovery, or
  665  procuring counsel or witnesses shall be granted. If the child is
  666  being detained, the time limitations in s. 985.26(2) and (3)
  667  apply. The department shall adopt by rule procedures for
  668  restraining a child upon his or her arrival at the courthouse.
  669  The rules must prohibit the use of mechanical devices and
  670  unreasonable restraints. In addition, a child may not be subject
  671  to extended periods of isolation.
  672         (2) Adjudicatory hearings shall be conducted without a jury
  673  by the court, applying in delinquency cases the rules of
  674  evidence in use in criminal cases; adjourning the hearings from
  675  time to time as necessary; and conducting a fundamentally fair
  676  hearing in language understandable, to the fullest extent
  677  practicable, to the child before the court.
  678         (a) In a hearing on a petition alleging that a child has
  679  committed a delinquent act or violation of law, the evidence
  680  must establish the findings beyond a reasonable doubt.
  681         (b) The child is entitled to the opportunity to introduce
  682  evidence and otherwise be heard in the child’s own behalf and to
  683  cross-examine witnesses.
  684         (c) A child charged with a delinquent act or violation of
  685  law must be afforded all rights against self-incrimination.
  686  Evidence illegally seized or obtained may not be received to
  687  establish the allegations against the child.
  688         (3)Instruments of restraint, such as handcuffs, chains,
  689  irons, or straitjackets, may not be used on a child during any
  690  court proceeding and must be removed when the child appears
  691  before the court unless the court finds that:
  692         (a)Restraints are necessary to prevent physical harm to
  693  the child or another person;
  694         (b)A less restrictive alternative is not available which
  695  would prevent physical harm, including, but not limited to, the
  696  presence of personnel of the department, a law enforcement
  697  officer, or a bailiff;
  698         (c)The child has a history of disruptive behavior in the
  699  courtroom which places others in potentially harmful situations
  700  or presents a substantial risk of inflicting bodily harm on
  701  others as evidenced by recent behavior;
  702         (d)The child is likely to attempt to escape during a
  703  transfer or a hearing; or
  704         (e)The child is charged with a capital offense. The
  705  department must comply with the Protective Action Response
  706  policy adopted under s. 985.645(2) whenever mechanical
  707  restraints are used.
  708         (4)(3) If the court finds that the child named in a
  709  petition has not committed a delinquent act or violation of law,
  710  it shall enter an order so finding and dismissing the case.
  711         (5)(4) If the court finds that the child named in the
  712  petition has committed a delinquent act or violation of law, it
  713  may, in its discretion, enter an order stating the facts upon
  714  which its finding is based but withholding adjudication of
  715  delinquency.
  716         (a) Upon withholding adjudication of delinquency, the court
  717  may place the child in a probation program under the supervision
  718  of the department or under the supervision of any other person
  719  or agency specifically authorized and appointed by the court.
  720  The court may, as a condition of the program, impose as a
  721  penalty component restitution in money or in kind, community
  722  service, a curfew, urine monitoring, revocation or suspension of
  723  the driver’s license of the child, or other nonresidential
  724  punishment appropriate to the offense, and may impose as a
  725  rehabilitative component a requirement of participation in
  726  substance abuse treatment, or school or other educational
  727  program attendance.
  728         (b) If the child is attending public school and the court
  729  finds that the victim or a sibling of the victim in the case was
  730  assigned to attend or is eligible to attend the same school as
  731  the child, the court order shall include a finding pursuant to
  732  the proceedings described in s. 985.455, regardless of whether
  733  adjudication is withheld.
  734         (c) If the court later finds that the child has not
  735  complied with the rules, restrictions, or conditions of the
  736  community-based program, the court may, after a hearing to
  737  establish the lack of compliance, but without further evidence
  738  of the state of delinquency, enter an adjudication of
  739  delinquency and shall thereafter have full authority under this
  740  chapter to deal with the child as adjudicated.
  741         (6)(5) If the court finds that the child named in a
  742  petition has committed a delinquent act or violation of law, but
  743  elects not to proceed under subsection (5) (4), it shall
  744  incorporate that finding in an order of adjudication of
  745  delinquency entered in the case, briefly stating the facts upon
  746  which the finding is made, and the court shall thereafter have
  747  full authority under this chapter to deal with the child as
  748  adjudicated.
  749         (7)(6) Except as the term “conviction” is used in chapter
  750  322, and except for use in a subsequent proceeding under this
  751  chapter, an adjudication of delinquency by a court with respect
  752  to any child who has committed a delinquent act or violation of
  753  law shall not be deemed a conviction; nor shall the child be
  754  deemed to have been found guilty or to be a criminal by reason
  755  of that adjudication; nor shall that adjudication operate to
  756  impose upon the child any of the civil disabilities ordinarily
  757  imposed by or resulting from conviction or to disqualify or
  758  prejudice the child in any civil service application or
  759  appointment, with the exception of the use of records of
  760  proceedings under this chapter as provided in s. 985.045(4).
  761         (8)(7) Notwithstanding any other provision of law, an
  762  adjudication of delinquency for an offense classified as a
  763  felony shall disqualify a person from lawfully possessing a
  764  firearm until the such person reaches 24 years of age.
  765         Section 20. Subsection (2) of section 985.483, Florida
  766  Statutes, is amended to read:
  767         985.483 Intensive residential treatment program for
  768  offenders less than 13 years of age.—
  769         (2) DETERMINATION.—After a child has been adjudicated
  770  delinquent under s. 985.35(6) s. 985.35(5), the court shall
  771  determine whether the child is eligible for an intensive
  772  residential treatment program for offenders less than 13 years
  773  of age under subsection (1). If the court determines that the
  774  child does not meet the criteria, ss. 985.435, 985.437, 985.439,
  775  985.441, 985.445, 985.45, and 985.455 shall apply.
  776         Section 21. Section 985.602, Florida Statutes, is created
  777  to read:
  778         985.602Use of restraints during court proceedings
  779  prohibited; exceptions.—
  780         (1)Instruments of restraint, such as handcuffs, chains,
  781  irons, or straitjackets, may not be used on a child during any
  782  court proceeding and must be removed when the child appears
  783  before the court unless the court finds that:
  784         (a)Restraints are necessary to prevent physical harm to
  785  the child or another person;
  786         (b)A less restrictive alternative is not available which
  787  would prevent physical harm, including, but not limited to, the
  788  presence of personnel of the department, a law enforcement
  789  officer, or a bailiff;
  790         (c)The child has a history of disruptive behavior in the
  791  courtroom which places others in potentially harmful situations
  792  or presents a substantial risk of inflicting bodily harm on
  793  others as evidenced by recent behavior;
  794         (d)The child is likely to attempt to escape during a
  795  transfer or a hearing; or
  796         (e)The child is charged with a capital offense.
  797         (2)The department must comply with the Protective Action
  798  Response policy adopted under s. 985.645(2) whenever mechanical
  799  restraints are used.
  800         Section 22. This act shall take effect July 1, 2010.

Site Map
Session:   Bills ·   Calendars ·   Bound Journals ·   Citator ·   Search ·   Appropriations ·   Redistricting ·   Bill Information Reports
Committee Publications
Historical Information
Statutes:   Introduction ·   View Statutes ·   Search Statutes
Flsenate.gov
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes.    Copyright © 2000-2019 State of Florida.     Privacy Statement     Contact Us     Get Acrobat Reader