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.