~upreme C!Court of jflortba - Supreme Court of Florida...~upreme C!Court of jflortba Office of the Clerk 500 South Duval Street Tallahassee, Florida 32399-1927 THOMAS D. HALL PHONE

~ u p r e m e C!Court of jflortba Office of the Clerk

500 South Duval Street

Tallahassee, Florida 32399-1927

THOMAS D. HALL PHONE NUMBER: (850) 488-0125 CLERK www. floridasupremecourt.org

SUSAN DAVIS MORLEY CHIEF DEPUTY CLERK

KRYSGODWIN May 20,2013 STAFF ATTORNEY

Ms. Gwynne A. Young

President

The Florida Bar

651 East Jefferson Street

Tallahassee, FL 32399-2300

Mr. John F. Harkness, Jr.

Executive Director

The Florida Bar

651 East Jefferson Street

Tallahassee, FL 32399-2300

Re: 2013 Legislation Potentially Affecting Court Rules and Jury Instructions

Dear Ms. Young and Mr. Harkness:

This letter addresses legislation passed during the 20 13 Regular Session that may necessitate changes to court rules. Staff of the Office of the State Courts Administrator (OSCA) prepared the enclosed table, which identifies as specifically as possible court rules potentially affected by recently enacted legislation and identifies the effective date of each measure. Action by the Governor may still be required for these measures to become law. If a measure has been approved by the Governor or become law without his signature, as of the date on the table, the table includes the assigned chapter law.

Appendix C-1

Electronically Filed 10/29/2013 09:22:43 AM ET

RECEIVED, 10/29/2013 09:23:42, Thomas D. Hall, Clerk, Supreme Court

http:floridasupremecourt.org

Ms. Gwynne A. Young Mr. John F. Harkness, Jr. May 20,2013 Page:3

Please do not hesitate to contact me if you have questions.

TDH/ewm Enclosure cc: The Honorable Ricky Polston, Chief Justice

The Honorable James M. Barton II, Chair, Standard Jury Instructions Committee (Civil)

The Honorable Jonathan D. Gerber, Chair, Standard Jury Instructions Committee (Contract and Business Cases)

The Honorable Joseph A. Bulone, Chair, Standard Jury Instructions Committee (Criminal)

Michael Robert Ufferman, Chair, Appellate Court Rules Committee The Honorable Richard Allen Nielsen, Chair, Civil Procedure Rules

Committee Thomas D. Shults, Chair, Code and Rules ofEvidence Committee Mark Caliel, Chair, Criminal Procedure Rules Committee Matthew Bums Capstraw, Chair, Family Law· Rules Committee James Raymond George, Chair, Florida Probate Rules Committee Alexandra V. Rieman, Chair, Judicial Administration Rules Committee The Honorable Daniel Paul Dawson, Chair, Juvenile Court Rules Committee Thomas Robert Thompson, Chair, Small Claims Rules Committee David Ashley Haenel, Chair, Traffic Court Rules Committee Paul Hill, General Counsel, The Florida Bar Jodi B. Jennings, Director, Legal Publications, The Florida Bar Deborah J. Meyer, Director, Central Staff, Supreme Court ofFlorida Lisa Goodner, State Courts Administrator Laura Rush, General Counsel, OSCA Bart Schneider, Senior Attorney, OSCA Eric Maclure, Director, Community and Intergovernmental Relations,

OSCA

Appendix C-2

Appendix C-3

Appendix C-3

Appendix C-4

Appendix C-5

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Gubernatorial Action on Bills Concluding

Governor Scott is nearing completion of his review of bills from the 2013 legislative session. The House and Senate have presented to the Governor all of the 283 bills that require gubernatorial action, and, as of Monday morning, July 1, three bills remain pending in the Governor’s Office. (The three pending bills are local bills, on which the Governor must act by July 2.) Thus far, the Governor has approved 272 bills and vetoed eight. Below is a table showing action on bills of interest to the State Courts System.

House Releases Bill Summaries The House has released its 2013 Session Summary, which is “intended to provide Florida legislators and their constituents with a summary of the bills that passed both legislative chambers.” It is a useful resource for high-level descriptions of enacted bills. As reported in the last Update, the Senate released its bill summaries previously.

Legislature Announces Schedule of Interim Meetings The Senate President and House Speaker have been traveling to locations around the state on a “Work Plan Florida Tour,” to discuss outcomes from the 2013 session related to their joint policy priorities. Information on the tour schedule is maintained on the Senate and House websites. Most recently, the presiding officers traveled to Northwest Florida on June 13 and 14, after visiting Central Florida in May. Although the 2013 legislative session may still be fresh on people’s minds, the Legislature is already looking ahead to the next session. The Senate and House released the weekly schedule of interim committee meetings, at which legislators begin their initial work on policy and budget development. Interim meetings are planned for the:

Week of September 23,

Week of October 7,

Week of November 4,

Week of December 9,

Week of January 6,

Week of January 13,

Week of February 3,

Week of February 10, and

Week of February 17. Typically more detailed information on times and dates for each round of committee meetings will be released about a week in advance.

Appendix C-6

http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Session&CommitteeId=&Session=2013&DocumentType=End%20of%20Session%20Summaries&FileName=2013%20EOS%20Final%20Version.pdfhttp://www.flsenate.gov/Committees/BillSummaries/2013/http://flsenate.gov/topics/WorkPlanFloridahttp://flsenate.gov/topics/WorkPlanFlorida/tourhttp://www.myfloridahouse.gov/contentViewer.aspx?Category=WebSite&File=work_plan_florida.htm

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The 2014 Regular Session convenes on Tuesday, March 4, 2014.

Status of Gubernatorial Action on Bills of Interest to State Courts This table addresses the status of several key bills enacted by the Legislature during the 2013 Regular Session that affect, or may be of interest to, the State Courts System (SCS). Chapter law numbers for bills approved on Friday, June 28, were not available as of “press time” for the Update. The table includes the effective date for each measure, which in several cases is July 1.

Policy Brief Description Gov. Approved?

Bills Addressing Budget and Judicial/Court Administration

General Appropriations Act

Appropriating funds for fiscal year 2013-14 to the State Courts System and other state agencies/entities. SB 1500 (effective 7/1/13 except as otherwise provided)

Yes (with vetoes) Ch. 2013-40, Laws of Fla.

Foreclosure Funding Appropriating nonrecurring funds from Florida’s share of the National Mortgage Settlement; providing $16 million to the courts for human resources, such as senior judge days, general magistrates, and case managers, to assist with foreclosure cases; providing approximately $5.3 million to the courts for technology to assist trial courts in viewing documents, producing orders, and managing foreclosure cases electronically; providing $9.7 million to the clerks to assist the courts with foreclosure cases; providing $10 million for the Attorney General’s Office to contract with regional legal aid providers for services to low-income and moderate-income homeowners facing foreclosure. SB 1852 (effective upon the deposit of $200,080,474 into the General Revenue Fund from the escrow account created as a result of the consent judgment entered into by the Attorney General on April 4, 2012, in the case of United States of America, et al. v. Bank of America Corp., et al., No. 12-0361-RMC, in the United States District Court for the District of Columbia)

Yes Ch. 2013-106, Laws of Fla.

Clerks of Court – Budget

Removing the clerks of court from the annual General Appropriations Act approved by the full Legislature; authorizing the Legislative Budget Commission to approve court-related budgets for the clerks on a


Appendix C-7

http://www.flsenate.gov/Session/Bill/2013/1500http://laws.flrules.org/files/Ch_2013-040.pdfhttp://laws.flrules.org/files/Ch_2013-040.pdfhttp://www.nationalmortgagesettlement.com/http://www.flsenate.gov/Session/Bill/2013/1852http://laws.flrules.org/files/Ch_2013-106.pdfhttp://laws.flrules.org/files/Ch_2013-106.pdfhttp://laws.flrules.org/2013/44http://laws.flrules.org/2013/44

3


county fiscal year basis; providing for the clerks, after remitting certain revenues to the state which are designated for other entities, to retain locally revenues collected from fees, fines, costs, and charges generated through operation of the courts system; providing for each clerk to remit to the state monthly any revenue exceeding one-twelfth of the clerk’s approved budget. SB 1512 (effective 7/1/13 except as otherwise provided)

Clerks of Court – Administrative Duties

Revising and clarifying administrative duties of clerks of court; specifying that the ability of a court to convert a criminal financial obligation into community service under s. 938.30, F.S., is subject to the same process and conditions applicable to community service based on the inability to pay a civil traffic penalty. SB 556 (effective 7/1/13)


Terms of Court Repealing long-standing statutory provisions for terms of court; substituting language recognizing the authority of the Supreme Court to establish, by rule, new terms of court, to authorize the district courts of appeal and circuit courts to independently set their own terms, or to dispense with terms of court altogether; limiting the period of time for recall of a mandate to 120 days of issuance; requiring circuit court chief judges to regularly order convening of grand juries for terms of six months. HB 7017 (effective 1/1/14)


Costs of Prosecution Adding the costs of prosecution and representation to the list of costs a clerk of the court is required to withhold from the return of a cash bond posted on behalf of a criminal defendant. HB 311 (effective 7/1/13)


Bills Affecting or of Interest to the State Courts System by Topic

FAMILY

Alimony Requiring various court findings related to the award of alimony to be made in writing; providing that the length of an award of durational alimony may not

Vetoed

Appendix C-8

http://www.flsenate.gov/Session/Bill/2013/1512http://www.flsenate.gov/Session/Bill/2013/0556http://laws.flrules.org/files/Ch_2013-109.pdfhttp://laws.flrules.org/files/Ch_2013-109.pdfhttp://www.flsenate.gov/Session/Bill/2013/7017http://laws.flrules.org/files/Ch_2013-025.pdfhttp://laws.flrules.org/files/Ch_2013-025.pdfhttp://www.flsenate.gov/Session/Bill/2013/0311http://laws.flrules.org/files/Ch_2013-112.pdfhttp://laws.flrules.org/files/Ch_2013-112.pdfhttp://www.flgov.com/wp-content/uploads/2013/05/SB718.pdf

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exceed 50 percent of the length of the marriage, unless the party seeking alimony proves by a preponderance of the evidence circumstances justifying the need for a longer award; limiting certain alimony awards as a percentage of the obligor’s gross monthly income; specifying that the obligor’s retirement is considered a substantial change in circumstances as a matter of law; and applying the alimony changes to alimony judgments and some alimony orders entered before the effective date of the act. SB 718

Independent Living Authorizing young adults to remain in the foster care system and under court jurisdiction until age 21. SB 1036 (effective 1/1/14)


Dependent Children/ Normalcy

Authorizing a caregiver to approve or disapprove a dependent child’s participation in activities based on the caregiver’s own assessment using a reasonable and prudent parent standard. HB 215 (effective 7/1/13)


Termination of Parental Rights

Providing that parental rights may be terminated if the court determines by clear and convincing evidence that the child was conceived during an act of sexual battery committed in violation of s. 794.011, F.S., or a similar law of another jurisdiction. SB 964 (effective 7/1/13 and applies to all unlawful acts of sexual battery occurring before, on, or after that date)


CIVIL

Jurisdiction of Courts

Providing that a court may assert personal jurisdiction over a nonresident who enters into a contract that complies with Florida’s choice-of-law statute; providing that the initiation of arbitration in this state, or the making of a written contract to arbitrate which provides for arbitration in this state, constitutes a consent to exercise in personam jurisdiction by the courts of this state in any action arising out of the arbitration and any resulting order or award.


Appendix C-9

http://www.flsenate.gov/Session/Bill/2013/0718http://www.flsenate.gov/Session/Bill/2013/1036http://laws.flrules.org/files/Ch_2013-178.pdfhttp://laws.flrules.org/files/Ch_2013-178.pdfhttp://www.flsenate.gov/Session/Bill/2013/0215http://laws.flrules.org/files/Ch_2013-021.pdfhttp://laws.flrules.org/files/Ch_2013-021.pdfhttp://www.flsenate.gov/Session/Bill/2013/0964http://laws.flrules.org/files/Ch_2013-132.pdfhttp://laws.flrules.org/files/Ch_2013-132.pdfhttp://laws.flrules.org/files/Ch_2013-164.pdfhttp://laws.flrules.org/files/Ch_2013-164.pdf

5


SB 186 (effective 7/1/13)

Deceptive and Unfair Trade Practices

Requiring an individual who alleges a deceptive and unfair trade practice by a motor vehicle dealer to first give a demand letter to the dealer; providing that if the dealer pays the claim and an additional surcharge within 30 days, the individual may not file suit. HB 55 (effective 7/1/13)


Design Professionals

Prescribing conditions under which a design professional employed by a business entity or an agent of the business entity may not be held individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract. SB 286 (effective 7/1/13)


False Claims Act Authorizing the Department of Legal Affairs to issue subpoenas for specified purposes under the act before the institution of civil proceedings; authorizing a person served with a subpoena to petition for an order of the court modifying or setting aside the subpoena; providing for the petition to be filed in the circuit court of the Second Judicial Circuit in and for Leon County. HB 935 (effective 7/1/13 except as otherwise provided)


Landlord and Tenant

Revising the Florida Residential Landlord and Tenant Act to, among other changes, specify that the right to attorney fees may not be waived in a lease agreement but that attorney fees may not be awarded in a claim for personal injury damages based on a breach of duty under s. 83.51, F.S.; providing that weekends and legal holidays do not stay the 24-hour notice period for restoration of possession to the landlord. HB 77 (effective 7/1/13)


REAL PROPERTY, PROBATE, AND TRUST LAW

Foreclosures Enacting provisions designed to facilitate the disposition of foreclosure cases. Specifically, the bill requires additional documentation at the time an action is brought to establish authority to foreclosure on the property, reduces the statute of limitation for bringing a deficiency action, limits the relief the court can award to monetary damages when


Appendix C-10

http://www.flsenate.gov/Session/Bill/2013/0186http://www.flsenate.gov/Session/Bill/2013/0055http://laws.flrules.org/2013/186http://laws.flrules.org/2013/186http://www.flsenate.gov/Session/Bill/2013/0286http://laws.flrules.org/files/Ch_2013-028.pdfhttp://laws.flrules.org/files/Ch_2013-028.pdfhttp://www.flsenate.gov/Session/Bill/2013/0935http://laws.flrules.org/files/Ch_2013-104.pdfhttp://laws.flrules.org/files/Ch_2013-104.pdfhttp://www.flsenate.gov/Session/Bill/2013/0077http://laws.flrules.org/files/Ch_2013-136.pdfhttp://laws.flrules.org/files/Ch_2013-136.pdfhttp://laws.flrules.org/files/Ch_2013-137.pdfhttp://laws.flrules.org/files/Ch_2013-137.pdf

6


a final judgment of foreclosure is challenged and the property has been purchased by an unrelated buyer, and revises the existing expedited show-cause proceeding for foreclosure actions to, among other things, allow all lienholders to participate. HB 87 (effective 6/7/13)

Filing False Documents

Creating a criminal offense of filing, with the intent to defraud or harass another, a document in an official record which contains materially false, fictitious, or fraudulent statements or representations that affect the owner’s interest in real property; directing the court under certain circumstances to declare the instrument null and void; authorizing the court to enjoin the person from filing any instrument in an official record absent prior review and approval for filing by a circuit or county court judge. SB 112 (effective 10/1/13)

Yes

Estates Revising the probate code and the trust code based on input from the Real Property, Probate, and Trust Law Section of The Florida Bar. SB 492 (effective 10/1/13)


Deeds and Wills Expanding an existing five-year limitation period to cure defective deeds or wills that are missing required seals or signatures of witnesses, by allowing the same period to cure such defects in any instrument, including a power of attorney, used in connection with the transfer of title to real property. SB 736 (effective 10/1/13)

Yes

General Assignments

Streamlining certain procedures that govern an assignment for the benefit of creditors. HB 833 (effective 6/28/13)

Yes

EVIDENCE

Expert Witness Testimony

Moving Florida to the federal standard, prescribed in Daubert v. Merrell Dow, governing the admission of expert witness testimony. HB 7015 (effective 7/1/13)


MEDICAL/NURSING HOME NEGLIGENCE

Medical Negligence Authorizing a health care provider to disclose certain Yes

Appendix C-11

http://www.flsenate.gov/Session/Bill/2013/0087http://www.flsenate.gov/Session/Bill/2013/0112http://www.flsenate.gov/Session/Bill/2013/0492http://laws.flrules.org/files/Ch_2013-172.pdfhttp://laws.flrules.org/files/Ch_2013-172.pdfhttp://www.flsenate.gov/Session/Bill/2013/0736http://www.flsenate.gov/Session/Bill/2013/0833http://www.flsenate.gov/Session/Bill/2013/7015http://laws.flrules.org/files/Ch_2013-107.pdfhttp://laws.flrules.org/files/Ch_2013-107.pdf

7


Actions patient information to the provider’s attorney during a consultation if the provider reasonably expects to be deposed, to be called as a witness, or to receive formal or informal discovery requests in a medical negligence action, presuit investigation of medical negligence, or administrative proceeding; allowing an insurer for the defendant to recommend attorneys who do not represent the defendant in the matter to the provider if the provider contacts the insurer relating to potential involvement in the matter. SB 1792 (effective 7/1/13)

Ch. 2013-108, Laws of Fla.

ALTERNATIVE DISPUTE RESOLUTION

Arbitration Revising the arbitration code to comport with a 2000 model act; providing for increased judicial involvement in arbitration proceedings. SB 530 (effective 7/1/13)

Yes

Jurisdiction of Courts

See discussion of SB 186, under “Civil” section above, for provisions relating to jurisdiction arising from arbitration agreements.

CRIMINAL

Pretrial Detention Authorizing a judge to order pretrial detention if the defendant has ever been sentenced as a prison releasee reoffender, habitual violent felony offender, three-time violent felony offender, or violent career criminal; requiring a court considering whether to release a defendant on bail to determine whether the defendant is subject to registration as a sexual offender or sexual predator and, if so, to hold the defendant without bail until the first appearance. HB 7035 (effective 7/1/13)


Search and Seizure; Drones

Prohibiting law enforcement from using a drone to gather evidence or other information except in specified circumstances (e.g., with a search warrant); authorizing an aggrieved party to bring a civil cause of action against law enforcement to obtain “all appropriate relief” to prevent or remedy a violation of the law; prohibiting admission in a criminal prosecution of evidence obtained in violation of the law. SB 92 (effective 7/1/13)


Appendix C-12

http://www.flsenate.gov/Session/Bill/2013/1792http://laws.flrules.org/files/Ch_2013-108.pdfhttp://laws.flrules.org/files/Ch_2013-108.pdfhttp://www.flsenate.gov/Session/Bill/2013/0530http://www.flsenate.gov/Session/Bill/2013/7035http://laws.flrules.org/files/Ch_2013-214.pdfhttp://laws.flrules.org/files/Ch_2013-214.pdfhttp://www.flsenate.gov/Session/Bill/2013/0092http://laws.flrules.org/files/Ch_2013-033.pdfhttp://laws.flrules.org/files/Ch_2013-033.pdf

8


Death Penalty/Capital Postconviction Proceedings

Enacting statutory provisions restricting conditions under which counsel may withdraw from representation due to a conflict, requiring reports on pending cases, and requiring the Governor to issue death warrants when specified proceedings are completed. HB 7083 (effective 7/1/13)

Yes (See detailed approval letter.) Ch. 2013-216, Laws of Fla.

Human Trafficking Authorizing a victim of human trafficking to petition the court for the expunction of a conviction for an offense committed while he or she was a victim of human trafficking, which offense was committed as a part of the human trafficking scheme or at the direction of an operator of the scheme. HB 1325, with companion public-records exemption (HB 1327) (effective 1/1/14 except as otherwise provided)

Yes Ch. 2013-98 and ch. 2013-99, Laws of Fla.

MENTAL HEALTH

Mental Health Treatment

Providing, among other provisions, for the dismissal of charges against certain persons who remain incompetent to proceed in three years rather than five years (unless the charge is related to certain prescribed offenses). SB 1420

Vetoed

Purchase of a Firearm/Mentally Ill Persons

Providing conditions under which a person who voluntary seeks treatment, after a Baker Act evaluation finds he or she is an imminent danger to himself or herself or others, may be prohibited from purchasing a firearm. HB 1355 (effective 7/1/13)

Yes

TRAFFIC

Texting and Driving Prohibiting texting while operating a moving motor vehicle. SB 52 (effective 10/1/13)


Red Light Cameras Prohibiting issuance of a traffic citation under the red-light camera law for certain right turns on red (i.e., if the driver came to a complete stop after crossing the stop line and before turning right if permissible at a red light, but failed to stop before crossing over the stop line or other point at which a stop is required);


Appendix C-13

http://www.flsenate.gov/Session/Bill/2013/7083http://www.flgov.com/wp-content/uploads/2013/06/Transmittal-Letter-HB-7083.pdfhttp://laws.flrules.org/files/Ch_2013-216.pdfhttp://laws.flrules.org/files/Ch_2013-216.pdfhttp://www.flsenate.gov/Session/Bill/2013/1325http://www.flsenate.gov/Session/Bill/2013/1327http://laws.flrules.org/files/Ch_2013-098.pdfhttp://laws.flrules.org/files/Ch_2013-099.pdfhttp://laws.flrules.org/files/Ch_2013-099.pdfhttp://www.flsenate.gov/Session/Bill/2013/1420http://www.flgov.com/wp-content/uploads/2013/06/Veto-Letter-SB-1420.pdfhttp://www.flsenate.gov/Session/Bill/2013/1355http://www.flsenate.gov/Session/Bill/2013/0052http://laws.flrules.org/files/Ch_2013-058.pdfhttp://laws.flrules.org/files/Ch_2013-058.pdfhttp://laws.flrules.org/files/Ch_2013-160.pdfhttp://laws.flrules.org/files/Ch_2013-160.pdf

9


allowing a person issued a notice of violation for a red light camera violation to elect to receive a local-government hearing within 60 days of the notice of violation; authorizing local governments to use a currently appointed code enforcement board or special magistrate to serve as the local hearing officer; providing for appeal to the circuit court. HB 7125 (effective 7/1/13)

Judicial Branch Approved Legislative Agenda

Supreme Court Marshal

Providing the marshal with statewide authority to bear arms and make arrests in the performance of official duties for the Supreme Court. HB 571 (effective 5/30/13)


Driver License Photographs

Providing explicit statutory authority for judges and court-related employees to access driver license photographs maintained by the Department of Highway Safety and Motor Vehicles. SB 628 (effective 7/1/13)


E-Warrants Authorizing judges to approve search and arrest warrants using electronic signatures. HB 953 (effective 7/1/13)

Yes

Appendix C-14

http://www.flsenate.gov/Session/Bill/2013/7125http://www.flsenate.gov/Session/Bill/2013/0571http://laws.flrules.org/files/Ch_2013-086.pdfhttp://laws.flrules.org/files/Ch_2013-086.pdfhttp://www.flsenate.gov/Session/Bill/2013/0628http://laws.flrules.org/files/Ch_2013-067.pdfhttp://laws.flrules.org/files/Ch_2013-067.pdfhttp://www.flsenate.gov/Session/Bill/2013/0953

May 20, 2013 Letter from Thomas D. HallJuly 1, 2013 Legislative Update, The Office of Community and Intergovernmental Relations