Bill Text: FL S1714 | 2010 | Regular Session | Introduced

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Bill Title: Litigation [SPSC]

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-04-16 - Withdrawn from Judiciary; Criminal Justice; Children, Families, and Elder Affairs -SJ 00635; Withdrawn from further consideration -SJ 00635 [S1714 Detail]

Download: Florida-2010-S1714-Introduced.html

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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         46.061 Joint 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         46.071 Privilege 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         46.081 Assignment 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         939.051 Sanctions 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         985.602 Use 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.