F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 79 2024
1 A bill to be entitled
2 An act relating to child maintenance restitution;
3 providing a short title; creating s. 775.088, F.S.;
4 defining the term "child maintenance restitution";
5 authorizing a court to order a defendant to pay child
6 maintenance restitution to the surviving parent or
7 guardian of a minor if the defendant is convicted of
8 violating specified provisions of law and the deceased
9 victim of the offense was the parent or guardian of a
10 child; requiring monthly payments; providing an
11 exception; requiring the court to determine an amount
12 that is reasonable and necessary based on specified
13 relevant factors if it sentences the defendant to pay
14 child maintenance restitution; providing for the
15 resolution of disputes as to the proper amount of
16 child maintenance restitution; providing for the
17 collection, disbursement, and enforcement of child
18 maintenance restitution; providing requirements for
19 the issuance of income deduction orders with an order
20 for restitution; specifying requirements for a notice
21 that is required to accompany income deduction orders;
22 providing for enforcement of income deduction orders;
23 authorizing payors to collect a fee for income
24 deduction orders; prohibiting a person from
25 discharging, refusing to employ, or taking
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26 disciplinary action against an employee subject to
27 child maintenance restitution; providing civil
28 penalties; providing requirements for payors;
29 providing civil penalties; providing for payments
30 after a defendant's incarceration; providing
31 circumstances under which child maintenance
32 restitution may not be ordered or under which there
33 must be an offset by a judgment award; providing that
34 a court may modify an order of child maintenance
35 restitution; providing for jurisdiction of the
36 defendant; providing an effective date.
37
38 Be It Enacted by the Legislature of the State of Florida:
39
40 Section 1. This act may be cited as "Bentley's Law."
41 Section 2. Section 775.088, Florida Statutes, is created
42 to read:
43 775.088 Child maintenance restitution.—
44 (1) "Child maintenance restitution" means a court -ordered
45 obligation for monetary support for the care, maintenance,
46 training, and education of a child younger than 18 years of age
47 whose parent or guardian is a deceased victim of an offense
48 specified in subsection (2).
49 (2) In addition to any punishment, the court may order a
50 defendant convicted of a violation of s. 316.193(3)(c)3. or s.
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51 327.35(3)(c)3. to make child maintenance restitution to the
52 surviving parent or guardian of a minor child, if the deceased
53 victim of the offense was the parent or guardian of suc h child.
54 Such obligation must be paid monthly, unless otherwise ordered
55 by the court, until such child reaches 18 years of age.
56 (3) If a sentencing court orders the defendant to pay
57 child maintenance restitution, the court must determine an
58 amount that is reasonable and necessary for the support of each
59 child of the deceased victim after considering all relevant
60 factors, including, but not limited to, all of the following:
61 (a) The financial needs and resources of the child.
62 (b) The financial needs and resources of the surviving
63 parent or guardian of the child, including the state if the
64 child is in the custody of the Department of Children and
65 Families.
66 (c) The standard of living to which the child is
67 accustomed.
68 (d) The physical and emotional condition of the child and
69 the child's educational needs.
70 (e) The child's physical and legal custody arrangements.
71 (f) The reasonable work-related child care expenses of the
72 surviving parent or guardian.
73 (4) Any dispute as to the proper amount of child
74 maintenance restitution must be resolved by the court by the
75 preponderance of the evidence. The court may consider hearsay
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76 evidence for this purpose, provided that it finds that the
77 hearsay evidence has a minimal indicia of reliability. The
78 burden of demonstrating an amount that is reasonable and
79 necessary for the support of the victim's child or children is
80 on the state attorney.
81 (5) The court may order the clerk of the court to collect,
82 enforce, and dispense child maintenance restitution payments.
83 (6)(a) Issuance of income deduction order with an order
84 for restitution.—
85 1. Upon the entry of an order for restitution, the court
86 shall enter a separate order for income deduction if one has not
87 been entered.
88 2. The income deduction order shall direct a payor to
89 deduct from all income due and payable to the defendant the
90 amount required by the court to meet the defendant's obligation.
91 3. The income deduction order must be effective as long as
92 the order for restitution upon which it is based is effective or
93 until further order of the court.
94 4. When the court orders the income deduction, the court
95 shall furnish to the defendant a statement of his or her rights,
96 remedies, and duties in regard to the income deduction order.
97 The statement must include all of the following:
98 a. All fees or interest imposed.
99 b. The total amount of income to be deducted for each pay
100 period.
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101 c. A statement that the income deduction order applies to
102 current and subsequent payors and periods of employment.
103 d. A statement that a copy of the income deduction order
104 will be served on the defendant's payor or payors.
105 e. A statement that the defendant is required to notify
106 the clerk of the court within 7 days after changes in the
107 defendant's address or payors, or the addresses of his or her
108 payors.
109 (b) Enforcement of income deduction orders.—
110 1. The clerk of the court or the defendant's probation
111 officer shall serve an income deduction order and the notice
112 described in subparagraph 4. to each of the defendant's payors,
113 unless the defendant has applied for a hearing to contest the
114 enforcement of the income deduction order.
115 2.a. Service by or upon any person who is a party to a
116 proceeding under this paragraph must be made in the manner
117 prescribed in the Florida Rules of Civil Procedure for service
118 upon parties.
119 b. Service upon the defendant's payor or successor payor
120 under this paragraph must be made by prepaid certified mail,
121 return receipt requested, or in the manner prescribed in chapter
122 48.
123 3. Within 15 days after having an income deduction order
124 entered against him or her, the defendant may apply for a
125 hearing to contest the enforcement of the income deduction order
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126 on the ground of mistake of fact regarding the amount o f
127 restitution owed. The timely request for a hearing stays the
128 service of an income deduction order on all payors of the
129 defendant until a hearing is held and a determination is made as
130 to whether the enforcement of the income deduction order is
131 proper.
132 4. The notice to each payor may contain only that
133 information necessary for the payor to comply with the income
134 deduction order. The notice must:
135 a. Require the payor to deduct from the defendant's income
136 the amount specified in the income deduction order and to pay
137 that amount to the clerk of the court.
138 b. Instruct the payor to implement the income deduction
139 order no later than the first payment date that occurs more than
140 14 days after the date the income deduction order was served on
141 the payor.
142 c. Instruct the payor to forward within 2 days after each
143 payment date to the clerk of the court the amount deducted from
144 the defendant's income and a statement as to whether the amount
145 totally or partially satisfies the periodic amount specified in
146 the income deduction order.
147 d. Specify that, if a payor fails to deduct the proper
148 amount from the defendant's income, the payor is liable for the
149 amount the payor should have deducted plus costs, interest, and
150 reasonable attorney fees.
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151 e. Provide that the payor may collect up to $5 from the
152 defendant's income to reimburse the payor for administrative
153 costs for the first income deduction and up to $2 for each
154 deduction thereafter.
155 f. State that the income deduction order and the notice to
156 payor are binding on the payor until further notice by the court
157 or until the payor no longer provides income to the defendant.
158 g. Instruct the payor that, when he or she no longer
159 provides income to the defendant, the payor must notify the
160 clerk of the court and must also provide the defendant's last
161 known address and the name and address of the defendant's new
162 payor, if known, and that, if the payor violates this sub-
163 subparagraph, the payor is subject to a civil penalty not to
164 exceed $250 for the first violation or $500 for any subsequent
165 violation.
166 h. State that the payor may not discharge, refuse to
167 employ, or take disciplinary action against the defendant
168 because of an income deduction order and that a violation of
169 this sub-subparagraph subjects the payor to a civil penalty not
170 to exceed $250 for the first violation or $500 for any
171 subsequent violation.
172 i. Inform the payor that, when he or she receives income
173 deduction orders requiring that the income of two or more
174 defendants be deducted and sent to the same clerk of the court,
175 the payor may combine the amounts that are to be paid to the
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176 depository in a single payment as long as he or she identifies
177 the portion of the payment attributable to each defendant.
178 j. Inform the payor that if the payor receives more than
179 one income deduction order against the same defendant, including
180 an income deduction order or notice for child support, the payor
181 must allocate payments equally for all such orders or notices if
182 there is not enough disposable income to fully satisfy each
183 order or notice.
184 5. The clerk of the court shall enforce income deduction
185 orders against the defendant's successor payor who is located in
186 this state in the same manner prescribed in this subsection for
187 the enforcement of an income deduction order against an original
188 payor.
189 6. A person may not discharge, refuse to employ, or take
190 disciplinary action against an employee because of the
191 enforcement of an income deduction order. An employer who
192 violates this subparagraph is subject to a civil penalty not to
193 exceed $250 for the first violation or $500 for any subsequent
194 violation.
195 7. When a payor no longer provides income to a defendant,
196 the payor must notify the clerk of the court and must provide
197 the defendant's last known address and the name and address of
198 the defendant's new payor, if known. A payor who violates this
199 subparagraph is subject to a civil penalty not to exceed $250
200 for the first violation or $500 for a subsequent violation.
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201 (7) A defendant who is ordered to pay child maintenance
202 restitution and is incarcerated and unable to pay such
203 restitution may have up to 1 year after release from
204 incarceration to begin payment. Such defendant must enter into a
205 payment plan with the clerk of the court to address any
206 arrearage. If a defendant's child maintenance restitution
207 payments are set to terminate but the defendant's obligati on is
208 not paid in full, such payments must continue until the entire
209 arrearage is paid.
210 (8)(a) If the surviving parent or guardian of the child
211 brings a civil action against the defendant before the
212 sentencing court orders child maintenance restitution a nd the
213 surviving parent or guardian obtains a judgment in a civil suit,
214 child maintenance restitution may not be ordered under this
215 section.
216 (b) If the court orders the defendant to make child
217 maintenance restitution under this section and the surviving
218 parent or guardian subsequent