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.