Bill Text: FL S1508 | 2011 | Regular Session | Introduced
Bill Title: Costs of Prosecution
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S1508 Detail]
Download: Florida-2011-S1508-Introduced.html
Florida Senate - 2011 SB 1508 By Senator Wise 5-01179-11 20111508__ 1 A bill to be entitled 2 An act relating to costs of prosecution; amending s. 3 28.246, F.S.; requiring the clerk of the court to 4 distribute the funds received from a defendant 5 according to a specified order of priority when the 6 defendant makes a partial payment to the clerk of 7 costs of prosecution; requiring that a portion of the 8 costs of prosecution be remitted to the State 9 Attorneys Revenue Trust Fund; amending s. 903.286, 10 F.S.; requiring that the clerk of the court withhold 11 from the return of a cash bond sufficient funds to pay 12 unpaid costs, including the costs of prosecution; 13 amending s. 938.27, F.S.; imposing certain costs on 14 persons whose cases are disposed of under a pretrial 15 intervention program or pretrial substance abuse 16 intervention program; requiring the court to impose 17 the costs of prosecution and investigation on the 18 defendant; prohibiting the court from converting such 19 costs to court-ordered community service; clarifying 20 the types of cases from which the clerk of the court 21 must collect and dispense cost payments; requiring 22 that the clerk of the court separately record each 23 assessment and payment of costs of prosecution and 24 provide a monthly report to the state attorney of such 25 assessments and payments; requiring the clerk of the 26 court to assign the first of any fees collected as 27 payment for costs of prosecution; amending s. 985.032, 28 F.S.; requiring that a juvenile who is adjudicated 29 delinquent or has adjudication of delinquency withheld 30 be assessed costs of prosecution; reenacting s. 31 34.191(1), F.S., relating to the disposition of fines 32 and forfeitures, to incorporate the amendment made to 33 s. 28.246, F.S., in a reference thereto; providing an 34 effective date. 35 36 Be It Enacted by the Legislature of the State of Florida: 37 38 Section 1. Section 28.246, Florida Statutes, is amended to 39 read: 40 28.246 Payment of court-related fees, charges, costs of 41 prosecution, and costs; partial payments; distribution of 42 funds.— 43 (1) The clerk of the circuit court shall report the 44 following information to the Legislature and the Florida Clerks 45 of Court Operations Corporation on a form developed by the 46 Department of Financial Services: 47 (a) The total amount of mandatory fees, service charges, 48 and costs; the total amount actually assessed; the total amount 49 discharged, waived, or otherwise not assessed; and the total 50 amount collected. 51 (b) The amount of discretionary fees, service charges, and 52 costs assessed; the total amount discharged; and the total 53 amount collected. 54 (c) The total amount of mandatory fines and other monetary 55 penalties; the total amount assessed; the total amount 56 discharged, waived, or otherwise not assessed; and the total 57 amount collected. 58 (d) The amount of discretionary fines and other monetary 59 penalties assessed; the amount discharged; and the total amount 60 collected. 61 62 If provided to the clerk of court by the judge, the clerk, in 63 reporting the amount assessed, shall separately identify the 64 amount assessed pursuant to s. 938.30 as community service; 65 assessed by reducing the amount to a judgment or lien; satisfied 66 by time served; or other. The form developed by the Chief 67 Financial Officer shall include separate entries for recording 68 these amounts. The clerk shall submit the report on an annual 69 basis 60 days after the end of the county fiscal year. 70 (2) The clerk of the circuit court shall establish and 71 maintain a system of accounts receivable for court-related fees, 72 charges, and costs. 73 (3) Court costs, fines, and other dispositional assessments 74 shall be enforced by order of the courts, collected by the 75 clerks of the circuit and county courts, and disbursed in 76 accordance with authorizations and procedures as established by 77 general law. 78 (4) The clerk of the circuit court shall accept partial 79 payments for court-related fees, service charges, costs, and 80 fines in accordance with the terms of an established payment 81 plan. An individual seeking to defer payment of fees, service 82 charges, costs, or fines imposed by operation of law or order of 83 the court under any provision of general law shall apply to the 84 clerk for enrollment in a payment plan. The clerk shall enter 85 into a payment plan with an individual who the court determines 86 is indigent for costs. A monthly payment amount, calculated 87 based upon all fees and all anticipated costs, is presumed to 88 correspond to the person’s ability to pay if the amount does not 89 exceed 2 percent of the person’s annual net income, as defined 90 in s. 27.52(1), divided by 12. The court may review the 91 reasonableness of the payment plan. 92 (5) When receiving partial payment of fees, service 93 charges, court costs, costs of prosecution, and fines, clerks 94 shall distribute funds according to the following order of 95 priority: 96 (a) That portion of fees, service charges, court costs, and 97 fines to be remitted to the state for deposit into the General 98 Revenue Fund, and that portion of the costs of prosecution to be 99 remitted to the state shall be deposited into the State 100 Attorneys Revenue Trust Fund. 101 (b) That portion of fees, service charges, court costs, 102 costs of prosecution, and fines which are required to be 103 retained by the clerk of the court or deposited into the Clerks 104 of the Court Trust Fund within the Justice Administrative 105 Commission. 106 (c) That portion of fees, service charges, court costs, 107 costs of prosecution, and fines payable to state trust funds, 108 allocated on a pro rata basis among the various authorized funds 109 if the total collection amount is insufficient to fully fund all 110 such funds as provided by law. 111 (d) That portion of fees, service charges, court costs, 112 costs of prosecution, and fines payable to counties, 113 municipalities, or other local entities, allocated on a pro rata 114 basis among the various authorized recipients if the total 115 collection amount is insufficient to fully fund all such 116 recipients as provided by law. 117 118 To offset processing costs, clerks may impose either a per-month 119 service charge pursuant to s. 28.24(26)(b) or a one-time 120 administrative processing service charge at the inception of the 121 payment plan pursuant to s. 28.24(26)(c). 122 (6) A clerk of court shall pursue the collection of any 123 fees, service charges, fines, costs of prosecution, court costs, 124 and liens for the payment of attorney’s fees and costs pursuant 125 to s. 938.29 which remain unpaid after 90 days by referring the 126 account to a private attorney who is a member in good standing 127 of The Florida Bar or collection agent who is registered and in 128 good standing pursuant to chapter 559. In pursuing the 129 collection ofsuchunpaid financial obligations through a 130 private attorney or collection agent, the clerk of the court 131 must have attempted to collect the unpaid amount through a 132 collection court, collections docket, or other collections 133 process, if any, established by the court, find this to be cost 134 effective and follow any applicable procurement practices. The 135 collection fee, including any reasonable attorney’s fee, paid to 136 any attorney or collection agent retained by the clerk may be 137 added to the balance owed in an amount not to exceed 40 percent 138 of the amount owed at the time the account is referred to the 139 attorney or agent for collection. The clerk shall give the 140 private attorney or collection agent the application for the 141 appointment of court-appointed counsel regardless of whether the 142 court file is otherwise confidential from disclosure. 143 Section 2. Section 903.286, Florida Statutes, is amended to 144 read: 145 903.286 Return of cash bond; requirement to withhold unpaid 146 fines, fees, court costs; cash bond forms.— 147 (1) Notwithstanding s. 903.31(2), the clerk of the court 148 shall withhold from the return of a cash bond posted on behalf 149 of a criminal defendant by a person other than a bail bond agent 150 licensed pursuant to chapter 648 sufficient funds to pay any 151 unpaid costs of prosecution, court fees, court costs, and 152 criminal penalties. If sufficient funds are not available to pay 153 all unpaid costs of prosecution, court fees, court costs, and 154 criminal penalties, the clerk of the court shall immediately 155 obtain payment from the defendant or enroll the defendant in a 156 payment plan pursuant to s. 28.246. 157 (2) All cash bond forms used in conjunction with the 158 requirements of s. 903.09 must prominently display a notice 159 explaining that all funds are subject to forfeiture and 160 withholding by the clerk of the court for the payment of costs 161 of prosecution, court fees, court costs, and criminal penalties 162 on behalf of the criminal defendant regardless of who posted the 163 funds. 164 Section 3. Section 938.27, Florida Statutes, is amended to 165 read: 166 938.27 Judgment for costs on conviction.— 167 (1) In all criminal and violation-of-probation or 168 community-control cases, convicted persons and persons whose 169 cases are disposed of pursuant to s. 948.08(6) or s. 948.16(1) 170 are liable for payment of the costs of prosecution, including 171 investigative costs incurred by law enforcement agencies, by 172 fire departments for arson investigations, and by investigations 173 of the Department of Financial Services or the Office of 174 Financial Regulation of the Financial Services Commission, if 175 requested by such agencies. The court shall include these costs 176 in every judgment rendered against the convicted person. For 177 purposes of this section, “convicted” means a determination of 178 guilt, or of violation of probation or community control, which 179 is a result of a plea, trial, or violation proceeding, 180 regardless of whether adjudication is withheld. 181 (2)(a) Notwithstanding any other law, court rule, or 182 administrative order, the court shall impose the costs of 183 prosecution and investigation on the defendant. Costs of 184 prosecution and investigation may not be converted to any form 185 of court-ordered community service in lieu of this financial 186 obligation. 187 (b)(a)The court shall impose the costs of prosecution and 188 investigation notwithstanding the defendant’s present ability to 189 pay. The court shall require the defendant to pay the costs 190 within a specified period or in specified installments. 191 (c)(b)The end of such period or the last such installment 192 mayshallnot be later than: 193 1. The end of the period of probation or community control, 194 if probation or community control is ordered; 195 2. Five years after the end of the term of imprisonment 196 imposed, if the court does not order probation or community 197 control; or 198 3. Five years after the date of sentencing in any other 199 case. 200 201 However, in no event shall the obligation to pay any unpaid 202 amounts expire if not paid in full within the period specified 203 in this paragraph. 204 (d)(c)If not otherwise provided by the court under this 205 section, costs shall be paid immediately. 206 (3) If a defendant is placed on probation or community 207 control, payment of any costs under this section shall be a 208 condition of such probation or community control. The court may 209 revoke probation or community control if the defendant fails to 210 pay these costs. 211 (4) Any dispute as to the proper amount or type of costs 212 shall be resolved by the court by the preponderance of the 213 evidence. The burden of demonstrating the amount of costs 214 incurred is on the state attorney. The burden of demonstrating 215 the financial resources of the defendant and the financial needs 216 of the defendant is on the defendant. The burden of 217 demonstrating such other matters as the court deems appropriate 218 is upon the party designated by the court as justice requires. 219 (5) Any default in payment of costs may be collected by any 220 means authorized by law for enforcement of a judgment. 221 (6) The clerk of the court shall collect and dispense cost 222 payments in any case, regardless of whether the disposition of 223 the case takes place before the judge in open court or in any 224 other manner provided by law. 225 (a) The clerk of the court shall separately record each 226 assessment and payment of costs of prosecution. Costs of 227 prosecution must be assessed with respect to each case number 228 before the court. 229 (b) The clerk shall provide a monthly report to the state 230 attorney of the assessments and payments recorded. 231 (7) Investigative costs that are recovered shall be 232 returned to the appropriate investigative agency that incurred 233 the expense. Such costs include actual expenses incurred in 234 conducting the investigation and prosecution of the criminal 235 case; however, costs may also include the salaries of permanent 236 employees. Any investigative costs recovered on behalf of a 237 state agency must be remitted to the Department of Revenue for 238 deposit in the agency operating trust fund, and a report of the 239 payment must be sent to the agency, except that any 240 investigative costs recovered on behalf of the Department of Law 241 Enforcement shall be deposited in the department’s Forfeiture 242 and Investigative Support Trust Fund under s. 943.362. 243 (8) Costs for the state attorney shall be set in all cases 244 at no less than $50 per case when a misdemeanor or criminal 245 traffic offense is charged and no less than $100 per case when a 246 felony offense is charged, including a proceeding in which the 247 underlying offense is a violation of probation or community 248 control. The court may set a higher amount upon a showing of 249 sufficient proof of higher costs incurred. Costs recovered on 250 behalf of the state attorney under this section shall be 251 deposited into the State Attorneys Revenue Trust Fund to be used 252 during the fiscal year in which the funds are collected, or in 253 any subsequent fiscal year, for actual expenses incurred in 254 investigating and prosecuting criminal cases, which may include 255 the salaries of permanent employees, or for any other purpose 256 authorized by the Legislature. Notwithstanding any law, court 257 rule, or administrative order, the clerk shall assign the first 258 of any fees or costs paid by a defendant as payment of the costs 259 of prosecution. 260 Section 4. Section 985.032, Florida Statutes, is amended to 261 read: 262 985.032 Legal representation for delinquency cases; costs 263 of prosecution.— 264 (1) For cases arising under this chapter, the state 265 attorney shall represent the state. 266 (2) A juvenile who is adjudicated delinquent or who has 267 adjudication of delinquency withheld shall be assessed costs of 268 prosecution as provided by s. 938.27. 269 Section 5. For the purpose of incorporating the amendment 270 made by this act to section 28.246, Florida Statutes, in a 271 reference thereto, subsection (1) of section 34.191, Florida 272 Statutes, is reenacted to read: 273 34.191 Fines and forfeitures; dispositions.— 274 (1) All fines and forfeitures arising from offenses tried 275 in the county court shall be collected and accounted for by the 276 clerk of the court and, other than the charge provided in s. 277 318.1215, disbursed in accordance with ss. 28.2402, 34.045, 278 142.01, and 142.03 and subject to the provisions of s. 28.246(5) 279 and (6). Notwithstanding the provisions of this section, all 280 fines and forfeitures arising from operation of the provisions 281 of s. 318.1215 shall be disbursed in accordance with that 282 section. 283 Section 6. This act shall take effect July 1, 2011.