Constitutional and Statutory Provisions Involved, Petition No. 12-7747

No: 12-7747 IN THE SUPREME COURT OF THE UNITED STATES ____________________ NEIL J. GILLESPIE, ET AL - PETITIONERS VS.
THIRTEENTH JUDICIAL CIRCUIT, FLORIDA, ET AL - RESPONDENTS ________________________ PETITION FOR A WRIT OF CERTIORARI ______________________ SEPARATE VOLUME APPENDIX CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
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Provisions of the Constitution of the United States Involved

U.S. Const. art. I, 8 U.S. Const. amend. I U.S. Const. amend. IV U.S. Const. amend. V U.S. Const. amend. VI U.S. Const. amend. VII U.S. Const. amend. VIII U.S. Const. amend. IX U.S. Const. amend. X U.S. Const. amend. XI U.S. Const. amend. XIV
Statutes of the United States Involved 2.

3. 15 USC Chapter 1 - 15 USC 1-38, Monopolies and Combinations in Restraint of Trade; 1-7 Sherman Act, 12-27, Clayton Act 15 USC Chapter 2 - Federal Trade Commission (FTC); Promotion of Export Trade and Prevention of Unfair Methods of Competition; Subchapter 1 45, Section 5, FTC Act
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15 USC Chapter 41 - Consumer Credit Protection; Subchapter 1, Part B Credit Transactions 15 USC 1640 Civil Liability (Truth in Lending Act - TILA) 18 USC Chapter 63 - Mail Fraud and Other Fraud (inadvertently omitted from page 3, Constitutional and Statutory Provisions, but cited in the petition, pp. 12-20) 18 USC 1341 - Frauds and swindles 18 USC 1343 - Fraud by wire, radio, or television 18 USC 1344 - Bank fraud 18 USC 1346 - Definition of scheme or artifice to defraud 18 USC Chapter 73 - Obstruction of Justice (inadvertently omitted from page 3, Constitutional and Statutory Provisions, but cited in the petition, pp. 12-20) 18 USC 1512 - Tampering with a witness, victim, or an informant 18 USC 1513 - Retaliating against a witness, victim, or an informant 18 USC Chapter 95 - Racketeering 18 USC 1951, The Hobbs Act 18 USC Chapter 96 - RICO 18 USC 1961-68, Racketeer Influenced and Corrupt Organizations Act 18 USC Chapter 119 - Wire and Electronic Communications Interception and Interception of Oral Communications 18 USC 2511 - Interception and disclosure of wire, oral, or electronic communications prohibited 28 USC Chapter 151 - Declaratory Judgments 28 USC 2201-2202 Declaratory Judgment Act 29 USC Chapter 16 - Vocational Rehabilitation and Other Rehabilitation Services 29 USC 701 et seq. The Rehabilitation Act of 1973, Sections 504 and 508 42 USC Chapter 114 - Protection and Advocacy for Individuals with Mental Illness 42 USC 10801 et seq., Protection and Advocacy for Mentally Ill Individuals Act 42 USC Chapter 126 - Equal Opportunities for Individuals with Disabilities Act 42 USC 12101 et seq., The Americans with Disabilities Act (ADA) Title II, Public Services (courts etc., State of Florida) Title III, Public Accommodations and Services by Private Entities Title IV, Miscellaneous Provisions, state immunity, retaliation, atty. fees, etc. 42 USC Chapter 21 - CIVIL RIGHTS, Subchapter I 42 USC 1981, Equal rights under the law
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42 USC Chapter 21 - CIVIL RIGHTS, Subchapter I 42 USC 1982, Property rights of citizens 42 USC Chapter 21 - CIVIL RIGHTS, Subchapter I 42 USC 1983, Civil action for deprivation of rights 42 USC Chapter 21 - CIVIL RIGHTS, Subchapter I 42 USC 1985, Conspiracy to interfere with civil rights 42 USC Chapter 21 - CIVIL RIGHTS, Subchapter I 42 USC 1986, Action for neglect to prevent 42 USC Chapter 21 - CIVIL RIGHTS, Subchapter I 42 USC 1988, Proceedings in vindication of civil rights
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UNITED STATES CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const. art. I, 8, The Commerce Clause (and dormant doctrine) [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; U.S. Const. amend. I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. amend. IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation U.S. Const. amend. VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VII In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. U.S. Const. amend. VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. amend. IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. U.S. Const. amend. X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. U.S. Const. amend. XI The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XIV Citizenship Clause, Due Process Clause, Equal Protection Clause Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
No: _______________________ IN THE SUPREME COURT OF THE UNITED STATES ____________________ NEIL J. GILLESPIE, ET AL - PETITIONERS VS. THIRTEENTH JUDICIAL CIRCUIT, FLORIDA, ET AL - RESPONDENTS ________________________ PETITION FOR A WRIT OF CERTIORARI ______________________ SEPARATE VOLUME APPENDIX CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
State of Florida Provisions Involved 1.

Provisions of the Constitution of the State of Florida Involved
Fla. Const. art. 1, 17. Excessive punishments Fla. Const. art. 1, 21. Access to courts
Fla. Const. art. 1, 2. Basic rights Fla. Const. art. 1, 9. Due process
Florida Rules of Court Involved

The Rules Regulating The Florida Bar Fla. Sup.Ct. Manual Internal Operating P The Florida Code of Judicial Conduct Florida Rules of Civil Procedure Florida Rules of Appellate Procedure Florida Rules of Judicial Administration
Florida Statutes Involved

2. 3. 4. Fla. Stat. 784.048(2) Stalking (criminal harassment) Fla. Stat. 768.16 to 768.26, The Florida Wrongful Death Act. Fla. Stat. 825.01 et seq., Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults
Provisions of the Constitution of the State of Florida Involved

Fla. Const. art. 1, 2. Basic rights. All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
Fla. Const. art. 1, 9. Due process. No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.
Fla. Const. art. 1, 17. Excessive punishments. Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively.
Fla. Const. art. 1, 21. Access to courts. The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
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The 2012 Florida Statutes

Title XLVI CRIMES Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE View Entire Chapter
784.048 Stalking; definitions; penalties. (1) As used in this section, the term: (a) Harass means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. (b) Course of conduct means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests. (c) Credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section. (d) Cyberstalk means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose. (2) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (4) A person who, after an injunction for protection against repeat violence, sexual violence, or dating violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that persons property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (5) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a child under 16 years of age commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (6) A law enforcement officer may arrest, without a warrant, any person that he or she has probable cause to believe has violated this section. (7) A person who, after having been sentenced for a violation of s. 794.011, s. 800.04, or s. 847.0135(5) and
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prohibited from contacting the victim of the offense under s. 921.244, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks the victim commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (8) The punishment imposed under this section shall run consecutive to any former sentence imposed for a conviction for any offense under s. 794.011, s. 800.04, or s. 847.0135(5). (9)(a) The sentencing court shall consider, as a part of any sentence, issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any such order be based upon the seriousness of the facts before the court, the probability of future violations by the perpetrator, and the safety of the victim and his or her family members or individuals closely associated with the victim. (b) The order may be issued by the court even if the defendant is sentenced to a state prison or a county jail or even if the imposition of the sentence is suspended and the defendant is placed on probation.
History.s. 1, ch. 92-208; s. 29, ch. 94-134; s. 29, ch. 94-135; s. 2, ch. 97-27; s. 23, ch. 2002-55; s. 1, ch. 2003-23; s. 3, ch. 2004-17; s. 3, ch. 2004-256; s. 17, ch. 2008-172; s. 2, ch. 2012-153.
Copyright 1995-2012 The Florida Legislature Privacy Statement Contact Us
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other breach of the applicable streetlight agreement or upon termination of the applicable streetlight agreement. In no event shall a public utility or electric utility be liable or held liable for civil damages for personal injury, wrongful death, or property damage under any circumstance affected or caused by the design, layout, quantity, or placement of streetlights or level of illumination resulting from the proper operation of a streetlight or series of streetlights. (5) In any civil action for damages arising out of personal injury, wrongful death, or property damage when a streetlight providers fault regarding the provision or maintenance of streetlights is at issue, if the streetlight provider responsible for providing or maintaining the streetlights is immune from liability pursuant to this section or is not a party to the litigation, such streetlight provider may not be named on the jury verdict form or be deemed or found in such action to be in any way at fault or responsible for the injury or death or damage that gave rise to the damages. (6) In no event shall a streetlight providers noncompliance with the provisions of subsection (3) create a presumption of negligence on the part of the streetlight provider in any civil action for damages arising out of personal injury, wrongful death, or property damage. (7) In the event that there is any conflict between this section and s. 768.81, or any other section of the Florida Statutes, this section shall control. Further, nothing in this section shall impact or waive any provision of s. 768.28.
History.s. 1, ch. 2005-272.
768.14 Suit by state; waiver of sovereign immunity. Suit by the state or any of its agencies or subdivisions to recover damages in tort shall constitute a waiver of sovereign immunity from liability and suit for damages in tort to the extent of permitting the defendant to counterclaim for damages resulting from the same transaction or occurrence.
History.s. 1, ch. 67-2204.
768.16
Wrongful Death Act. Sections 768.16-768.26 may be cited as the Florida Wrongful Death Act.
History.s. 1, ch. 72-35; s. 105, ch. 2003-1.
768.17 Legislative intent. It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.
History.s. 1, ch. 72-35; s. 106, ch. 2003-1.
768.18 Definitions. As used in ss. 768.16-768.26: (1) Survivors means the decedents spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the childs support. (2) Minor children means children under 25 years of age, notwithstanding the age of majority. (3) Support includes contributions in kind as well as money. (4) Services means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case. (5) Net accumulations means the part of the decedents expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. Net business or salary income is the part of the decedents probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedents personal expenses and support of survivors,
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excluding contributions in kind.

History.s. 1, ch. 72-35; s. 66, ch. 77-121; s. 40, ch. 77-468; s. 1, ch. 81-183; s. 3, ch. 89-61; s. 1, ch. 90-14; s. 1167, ch. 97-102; s. 107, ch. 2003-1.
768.19 Right of action. When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.
History.s. 1, ch. 72-35.
768.20 Parties. The action shall be brought by the decedents personal representative, who shall recover for the benefit of the decedents survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. The wrongdoers personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivors recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.
History.s. 1, ch. 72-35; s. 1168, ch. 97-102.
768.21 Damages. All potential beneficiaries of a recovery for wrongful death, including the decedents estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows: (1) Each survivor may recover the value of lost support and services from the date of the decedents injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivors relationship to the decedent, the amount of the decedents probable net income available for distribution to the particular survivor, and the replacement value of the decedents services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered. (2) The surviving spouse may also recover for loss of the decedents companionship and protection and for mental pain and suffering from the date of injury. (3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other. (4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors. (5) Medical or funeral expenses due to the decedents injury or death may be recovered by a survivor who has paid them. (6) The decedents personal representative may recover for the decedents estate the following: (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
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1. If the decedents survivors include a surviving spouse or lineal descendants; or 2. If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent. (b) Medical or funeral expenses due to the decedents injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5). (c) Evidence of remarriage of the decedents spouse is admissible. (7) All awards for the decedents estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims. (8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).
History.s. 1, ch. 72-35; s. 2, ch. 81-183; s. 1, ch. 85-260; s. 2, ch. 90-14; s. 1169, ch. 97-102; s. 1, ch. 2002-44; s. 66, ch. 2003-416.
768.22 Form of verdict. The amounts awarded to each survivor and to the estate shall be stated separately in the verdict.
768.23 Protection of minors and incompetents. The court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law.
768.24 Death of a survivor before judgment. A survivors death before final judgment shall limit the survivors recovery to lost support and services to the date of his or her death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor.
History.s. 1, ch. 72-35; s. 1170, ch. 97-102.
768.25 Court approval of settlements. While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.
768.26 Litigation expenses. Attorneys fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.
768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs. (1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employees office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action
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Title XLVI CRIMES Chapter 825 ABUSE, NEGLECT, AND EXPLOITATION OF ELDERLY PERSONS AND DISABLED ADULTS View Entire Chapter
CHAPTER 825 ABUSE, NEGLECT, AND EXPLOITATION OF ELDERLY PERSONS AND DISABLED ADULTS 825.101 825.102 825.1025 person. 825.103 825.104 825.105 825.106 Definitions. Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties. Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled Exploitation of an elderly person or disabled adult; penalties. Knowledge of victims age. Good faith assistance. Criminal actions involving elderly persons or disabled adults; speedy trial.
825.101 Definitions. As used in this chapter: (1) Business relationship means a relationship between two or more individuals or entities where there exists an oral or written contract or agreement for goods or services. (2) Caregiver means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or disabled adult. Caregiver includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities as defined in subsection (7). (3) Deception means: (a) Misrepresenting or concealing a material fact relating to: 1. Services rendered, disposition of property, or use of property, when such services or property are intended to benefit an elderly person or disabled adult; 2. Terms of a contract or agreement entered into with an elderly person or disabled adult; or 3. An existing or preexisting condition of any property involved in a contract or agreement entered into with an elderly person or disabled adult; or (b) Using any misrepresentation, false pretense, or false promise in order to induce, encourage, or solicit an elderly person or disabled adult to enter into a contract or agreement. (4) Disabled adult means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the persons ability to perform the normal activities of daily living. (5) Elderly person means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the persons own care or protection is impaired.
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(6) Endeavor means to attempt or try. (7) Facility means any location providing day or residential care or treatment for elderly persons or disabled adults. The term facility may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community. (8) Intimidation means the communication by word or act to an elderly person or disabled adult that the elderly person or disabled adult will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence. (9) Lacks capacity to consent means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the elderly persons or disabled adults person or property. (10) Obtains or uses means any manner of: (a) Taking or exercising control over property; or (b) Making any use, disposition, or transfer of property. (11) Position of trust and confidence with respect to an elderly person or a disabled adult means the position of a person who: (a) Is a parent, spouse, adult child, or other relative by blood or marriage of the elderly person or disabled adult; (b) Is a joint tenant or tenant in common with the elderly person or disabled adult; (c) Has a legal or fiduciary relationship with the elderly person or disabled adult, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator; (d) Is a caregiver of the elderly person or disabled adult; or (e) Is any other person who has been entrusted with or has assumed responsibility for the use or management of the elderly persons or disabled adults funds, assets, or property. (12) Property means anything of value and includes: (a) Real property, including things growing on, affixed to, and found in land. (b) Tangible or intangible personal property, including rights, privileges, interests, and claims. (c) Services. (13) Services means anything of value resulting from a persons physical or mental labor or skill, or from the use, possession, or presence of property, and includes: (a) Repairs or improvements to property. (b) Professional services. (c) Private, public, or governmental communication, transportation, power, water, or sanitation services. (d) Lodging accommodations. (e) Admissions to places of exhibition or entertainment. (14) Value means value determined according to any of the following: (a)1. The market value of the property at the time and place of the offense or, if the market value cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the offense. 2. In the case of a written instrument such as a check, draft, or promissory note, which does not have a readily ascertainable market value, the value is the amount due or collectible. The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by the loss of the instrument. 3. The value of a trade secret that does not have a readily ascertainable market value is any reasonable
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value representing the damage to the owner suffered by reason of losing advantage over those who do not know of or use the trade secret. (b) If the value of the property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100. (c) Amounts of value of separate properties involved in exploitation committed pursuant to one scheme or course of conduct, whether the exploitation involves the same person or several persons, may be aggregated in determining the degree of the offense.
History.s. 2, ch. 95-158; s. 1, ch. 96-322; s. 1, ch. 2002-195.
825.102 Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties. (1) Abuse of an elderly person or disabled adult means: (a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (b) An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or (c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult. A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) Aggravated abuse of an elderly person or disabled adult occurs when a person: (a) Commits aggravated battery on an elderly person or disabled adult; (b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages, an elderly person or disabled adult; or (c) Knowingly or willfully abuses an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult. A person who commits aggravated abuse of an elderly person or disabled adult commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (3)(a) Neglect of an elderly person or disabled adult means: 1. A caregivers failure or omission to provide an elderly person or disabled adult with the care, supervision, and services necessary to maintain the elderly persons or disabled adults physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult; or 2. A caregivers failure to make a reasonable effort to protect an elderly person or disabled adult from abuse, neglect, or exploitation by another person. Neglect of an elderly person or disabled adult may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or psychological injury, or a substantial risk of death, to an elderly person or disabled adult. (b) A person who willfully or by culpable negligence neglects an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) A person who willfully or by culpable negligence neglects an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
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825.1025 Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person. (1) As used in this section, sexual activity means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. (2)(a) Lewd or lascivious battery upon an elderly person or disabled person occurs when a person encourages, forces, or entices an elderly person or disabled person to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity, when the person knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent. (b) A person who commits lewd or lascivious battery upon an elderly person or disabled person commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (3)(a) Lewd or lascivious molestation of an elderly person or disabled person occurs when a person intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of an elderly person or disabled person when the person knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent. (b) A person who commits lewd or lascivious molestation of an elderly person or disabled person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (4)(a) Lewd or lascivious exhibition in the presence of an elderly person or disabled person occurs when a person, in the presence of an elderly person or disabled person: 1. Intentionally masturbates; 2. Intentionally exposes his or her genitals in a lewd or lascivious manner; or 3. Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, when the person knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent to having such act committed in his or her presence. (b) A person who commits a lewd or lascivious exhibition in the presence of an elderly person or disabled person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.s. 4, ch. 96-322; s. 1, ch. 2002-159.
825.103 Exploitation of an elderly person or disabled adult; penalties. (1) Exploitation of an elderly person or disabled adult means: (a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly persons or disabled adults funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who: 1. Stands in a position of trust and confidence with the elderly person or disabled adult; or 2. Has a business relationship with the elderly person or disabled adult; (b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly persons or disabled adults funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent; or (c) Breach of a fiduciary duty to an elderly person or disabled adult by the persons guardian or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property.
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(2)(a) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.s. 4, ch. 95-158; s. 5, ch. 96-322; s. 1, ch. 97-78; s. 29, ch. 2009-223.
825.104 Knowledge of victims age. It does not constitute a defense to a prosecution for any violation of this chapter that the accused did not know the age of the victim.
825.105 Good faith assistance. This chapter is not intended to impose criminal liability on a person who makes a good faith effort to assist an elderly person or disabled adult in the management of the funds, assets, or property of the elderly person or disabled adult, which effort fails through no fault of the person.
History.s. 6, ch. 95-158; s. 6, ch. 96-322.
825.106 Criminal actions involving elderly persons or disabled adults; speedy trial. In a criminal action in which an elderly person or disabled adult is a victim, the state may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the victim, may advance the trial on the docket. The motion may be filed and served with the information or charges or at any time thereafter.
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No: _______________________ IN THE SUPREME COURT OF THE UNITED STATES ____________________ NEIL J. GILLESPIE, ET AL - PETITIONERS VS. THIRTEENTH JUDICIAL CIRCUIT, FLORIDA, ET AL - RESPONDENTS ________________________ PETITION FOR A WRIT OF CERTIORARI ______________________ SEPARATE VOLUME APPENDIX CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This petition draws into question the constitutionality of certain Florida Statutes:
1. Constitutional challenge, Fla. Stat., sec. 454.021 Attorneys; admission to practice law; Supreme Court to govern and regulate. 2. Constitutional challenge, Fla. Stat., sec. 25.382 State courts system. 3. Constitutional challenge, Fla. Stat., sec. 43.20 Judicial Qualifications Commission. 4. Constitutional challenge, Fla. Stat., sec. 43.291 Judicial nominating commissions. 5. Constitutional challenge, Fla. Stat., sec. 38.01 et seq., Disqualification of judges 6. Constitutional challenge, Fla. Stat., sec. 57.105, award attorneys fees against pro se. 7. Constitutional challenge, Fla. Stat., sec. 27.52 appointment of counsel, to include disabled 8. Constitutional challenge, Fla. Stat., sec. 934.01 et seq., Security of Communications
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Title XXXII REGULATION OF PROFESSIONS AND OCCUPATIONS View Entire Chapter Chapter 454 ATTORNEYS AT LAW
454.021 Attorneys; admission to practice law; Supreme Court to govern and regulate. (1) Admissions of attorneys and counselors to practice law in the state is hereby declared to be a judicial function. (2) The Supreme Court of Florida, being the highest court of said state, is the proper court to govern and regulate admissions of attorneys and counselors to practice law in said state.
History.ss. 1, 2, 7, ch. 29796, 1955; s. 10, ch. 61-530.
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Title V JUDICIAL BRANCH Chapter 25 SUPREME COURT View Entire Chapter
25.382 State courts system. (1) As used in this section, state courts system means all officers, employees, and divisions of the Supreme Court, district courts of appeal, circuit courts, and county courts. (2) It is declared and determined that the officers, employees, committees, and divisions of the state courts system of the judicial branch are and shall continue to be officers, employees, committees, and divisions of the state courts system to perform such services as may be provided by the State Constitution, by law, by rules of practice and procedure adopted by the Supreme Court, or by administrative order of the Chief Justice, whichever is applicable. (3) The manner of selection of employees, the determination of qualifications and compensation, and the establishment of policies relating to the work of such employees, including hours of work, leave, and other matters, shall be determined by rule of the Supreme Court as provided in s. 2(a), Art. V of the State Constitution. (4) The Supreme Court shall ensure that clearly written policies, procedures, and goals for the recruitment, selection, promotion, and retention of minorities, including minority women, are established throughout all levels of the judicial system. An annual report shall be submitted to the Chief Justice outlining progress, problems, and corrective actions relating to the implementation of this plan.
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Select Year:

Title V JUDICIAL BRANCH Chapter 43 COURTS: GENERAL PROVISIONS View Entire Chapter
43.20 Judicial Qualifications Commission. (1) PURPOSE.The purpose of this section is to implement s. 12(b), Art. V of the State Constitution which provides for a Judicial Qualifications Commission. (2) MEMBERSHIP; TERMS.The commission shall consist of 13 members. The members of the commission shall serve for terms of 6 years. (3) VACANCIES.An appointment to fill a vacancy shall be for the remainder of the term. (4) SELECTION OF MEMBERS BY DISTRICT COURTS OF APPEAL JUDGES, CIRCUIT COURT JUDGES, COUNTY COURT JUDGES AND BOARD OF GOVERNORS OF THE FLORIDA BAR.The members appointed by the judges of the district courts of appeal, the circuit judges, the county court judges, and the Board of Governors of The Florida Bar shall be selected by not less than a majority of the membership of the respective appointing groups. (5) EXPENSES.The compensation of members and referees shall be the travel expense or transportation and per diem allowance provided by s. 112.061.
History.ss. 1, 2, 3, 4, ch. 67-163; s. 1, ch. 73-306; s. 34, ch. 81-259.
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Select Year:

Title V JUDICIAL BRANCH Chapter 43 COURTS: GENERAL PROVISIONS View Entire Chapter
43.291 Judicial nominating commissions. (1) Each judicial nominating commission shall be composed of the following members: (a) Four members of The Florida Bar, appointed by the Governor, who are engaged in the practice of law, each of whom is a resident of the territorial jurisdiction served by the commission to which the member is appointed. The Board of Governors of The Florida Bar shall submit to the Governor three recommended nominees for each position. The Governor shall select the appointee from the list of nominees recommended for that position, but the Governor may reject all of the nominees recommended for a position and request that the Board of Governors submit a new list of three different recommended nominees for that position who have not been previously recommended by the Board of Governors. (b) Five members appointed by the Governor, each of whom is a resident of the territorial jurisdiction served by the commission to which the member is appointed, of which at least two are members of The Florida Bar engaged in the practice of law. (2) A justice or judge may not be a member of a judicial nominating commission. A member of a judicial nominating commission may hold public office other than judicial office. A member of a judicial nominating commission is not eligible for appointment, during his or her term of office and for a period of 2 years thereafter, to any state judicial office for which that commission has the authority to make nominations. All acts of a judicial nominating commission must be made with a concurrence of a majority of its members. (3) Notwithstanding any other provision of this section, each current member of a judicial nominating commission appointed directly by the Board of Governors of The Florida Bar shall serve the remainder of his or her term, unless removed for cause. The terms of all other members of a judicial nominating commission are hereby terminated, and the Governor shall appoint new members to each judicial nominating commission in the following manner: (a) Two appointments for terms ending July 1, 2002, one of which shall be an appointment selected from nominations submitted by the Board of Governors of The Florida Bar pursuant to paragraph (1)(a); (b) Two appointments for terms ending July 1, 2003; and (c) Two appointments for terms ending July 1, 2004. Every subsequent appointment, except an appointment to fill a vacant, unexpired term, shall be for 4 years. Each expired term or vacancy shall be filled by appointment in the same manner as the member whose position is being filled. (4) In making an appointment, the Governor shall seek to ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered. The Governor shall also consider the adequacy of representation of each county within the judicial circuit. (5) A member of a judicial nominating commission may be suspended for cause by the Governor pursuant to uniform rules of procedure established by the Executive Office of the Governor consistent with s. 7 of Art.
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IV of the State Constitution. (6) A quorum of the judicial nominating commission is necessary to take any action or transact any business. For purposes of this section, a quorum consists of a majority of commission members currently appointed. (7) The Executive Office of the Governor shall provide all administrative support for each judicial nominating commission. The Executive Office of the Governor shall adopt rules necessary to administer this section.
History.s. 1, ch. 2001-282.
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Title V JUDICIAL BRANCH Chapter 38 JUDGES: GENERAL PROVISIONS CHAPTER 38 JUDGES: GENERAL PROVISIONS 38.01 38.02 38.03 38.04 38.05 38.06 38.07 38.08 38.09 38.10 38.12 38.13 38.22 38.23 Disqualification when judge party; effect of attempted judicial acts. Suggestion of disqualification; grounds; proceedings on suggestion and effect. Waiver of grounds of disqualification by parties. Sworn statement by judge holding himself or herself qualified. Disqualification of judge on own motion. Effect of acts where judge fails to disqualify himself or herself. Effect of orders entered prior to disqualification; petition for reconsideration. Effect of orders where petition for reconsideration not filed. Designation of judge to hear cause when order of disqualification entered. Disqualification of judge for prejudice; application; affidavits; etc. Resignation, death, or removal of judges; disposition of pending matters and papers. Judge ad litem; when may be selected in the circuit or county court. Power to punish contempts. Contempts defined. View Entire Chapter
38.01 Disqualification when judge party; effect of attempted judicial acts. Every judge of this state who appears of record as a party to any cause before him or her shall be disqualified to act therein, and shall forthwith enter an order declaring himself or herself to be disqualified in said cause. Any and all attempted judicial acts by any judge so disqualified in a cause, whether done inadvertently or otherwise, shall be utterly null and void and of no effect. No judge shall be disqualified from sitting in the trial of any suit in which any county or municipal corporation is a party by reason that such judge is a resident or taxpayer within such county or municipal corporation.
History.s. 2, ch. 16053, 1933; CGL 1936 Supp. 4155(1); s. 1, ch. 59-43; s. 205, ch. 95-147.
38.02 Suggestion of disqualification; grounds; proceedings on suggestion and effect. In any cause in any of the courts of this state any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in said cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to said cause, but such an order shall not be subject to collateral attack. Such suggestions shall be filed in the cause within 30 days after the party filing the suggestion, or the partys attorney, or attorneys, of record, or either of them, learned of such
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disqualification, otherwise the ground, or grounds, of disqualification shall be taken and considered as waived. If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of the suggestion, the grounds of his or her disqualification, and declaring himself or herself to be disqualified in said cause. If the truth of any such suggestion does not appear from the record in said cause, the judge may by order entered therein require the filing in the cause of affidavits touching the truth or falsity of such suggestion. If the judge finds that the suggestion is true, he or she shall forthwith enter an order reciting the ground of his or her disqualification and declaring himself or herself disqualified in the cause; if the judge finds that the suggestion is false, he or she shall forthwith enter the order so reciting and declaring himself or herself to be qualified in the cause. Any such order declaring a judge to be disqualified shall not be subject to collateral attack nor shall it be subject to review. Any such order declaring a judge qualified shall not be subject to collateral attack but shall be subject to review by the court having appellate jurisdiction of the cause in connection with which the order was entered.
History.s. 3, ch. 16053, 1933; CGL 1936 Supp. 4155(2); s. 1, ch. 26890, 1951; s. 6, ch. 63-559; s. 206, ch. 95-147.
38.03 Waiver of grounds of disqualification by parties. The parties to any cause, or their attorneys of record, may, by written stipulation filed in the cause, waive any of the grounds of disqualification named in s. 38.02 and such waiver shall be valid and binding as to orders previously entered as well as to future acts of the judge therein; provided, however, that nothing herein shall prevent a judge from disqualifying himself or herself of his or her own motion under s. 38.05.
History.s. 4, ch. 16053, 1933; CGL 1936 Supp. 4155(3); s. 207, ch. 95-147.
38.04 Sworn statement by judge holding himself or herself qualified. Whenever any judge shall enter an order under s. 38.02 declaring qualification to act in said cause, he or she shall contemporaneously therewith file therein a sworn statement that to the best of his or her knowledge and belief the ground or grounds of the disqualification named in the suggestion do not exist.
38.05 Disqualification of judge on own motion. Any judge may of his or her own motion disqualify himself or herself where, to the judges own knowledge, any of the grounds for a suggestion of disqualification, as named in s. 38.02, exist. The failure of a judge to so disqualify himself or herself under this section shall not be assignable as error or subject to review.
History.s. 6, ch. 16053, 1933; CGL 1936 Supp. 4155(5); s. 6, ch. 63-559; s. 209, ch. 95-147.
38.06 Effect of acts where judge fails to disqualify himself or herself. In any cause where the grounds for a suggestion of disqualification, as set forth in s. 38.02, appear of record in the cause, but no suggestion of disqualification is filed therein, the orders, judgments, and decrees entered therein by the judge shall be valid. Where, on a suggestion of disqualification the judge enters an order declaring himself or herself qualified, the orders, judgments, and decrees entered therein by the said judge shall not be void and shall not be subject to collateral attack.
38.07 Effect of orders entered prior to disqualification; petition for reconsideration. When orders have been entered in any cause by a judge prior to the entry of any order of disqualification under s. 38.02 or s. 38.05, any party to the cause may, within 30 days after the filing in the cause of the order of the chief judge of the circuit or the Chief Justice of the Supreme Court, as provided for in s. 38.09, petition the judge so designated for a reconsideration of the orders entered by the disqualified judge prior to the date of the entry of the order of disqualification. Such a petition shall set forth with particularity the matters of law or fact to be relied upon as grounds for the modification or vacation of the orders. Such a petition shall be granted as a matter of right. Upon the granting of the petition, notice of the time and place of the hearing thereon,
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together with a copy of the petition, shall be mailed by the attorney, or attorneys, of record for the petitioners to the other attorney or attorneys of record, or to the party or parties if they have no attorneys of record. This notice shall be mailed at least 8 days prior to the date fixed by the judge for the hearing. The judge before whom the cause is then pending may, after the hearing, affirm, approve, confirm, reenter, modify, or vacate the orders.
History.s. 8, ch. 16053, 1933; CGL 1936 Supp. 4155(7); s. 10, ch. 63-572; s. 30, ch. 81-259; s. 1, ch. 83-260.
38.08 Effect of orders where petition for reconsideration not filed. If no petition for reconsideration is filed, as provided for in s. 38.07, all orders entered by the disqualified judge prior to the entry of the order of disqualification shall be as binding and valid as if said orders had been duly entered by a qualified judge authorized to act in the cause. The fact that an order was entered by a judge who is subsequently disqualified under s. 38.02 or s. 38.05, shall not be assignable as error subject to review by the appropriate appellate court unless a petition for reconsideration as provided for in s. 38.07, was filed by the party urging the matter as error, and the judge before whom the cause was then pending refused to vacate or modify said order.
38.09 Designation of judge to hear cause when order of disqualification entered. Every judge of this state shall advise the chief judge of the circuit upon the entry of an order of disqualification. An order of assignment shall then be entered as provided by the Florida Rules of Judicial Administration. In the event any judge is disqualified as herein provided, upon application for any temporary writ of injunction or habeas corpus, the judge shall immediately enter an order of disqualification, whereupon the cause may be presented to any other judge of a court of the same jurisdiction as the court in which that cause is pending; and it shall be the duty of any such judge to hear and determine such matters until a substitute judge is so designated.
History.s. 10, ch. 16053, 1933; CGL 1936 Supp. 4155(9)81s. 11, ch. 63-572; s. 20, ch. 73-333; s. 2, ch. 83-260; s. 211, ch. 95-147.
38.10 Disqualification of judge for prejudice; application; affidavits; etc. Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. However, when any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has been assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. If such judge holds, rules, and adjudges that he or she does stand fair and impartial as between the parties and their respective interests, he or she shall cause such ruling to be entered on the minutes of the court and shall proceed to preside as judge in the pending cause. The ruling of such judge may be assigned as error and may be reviewed as are other rulings of the trial court.
History.s. 4, ch. 7852, 1919; RGS 2674; s. 1, ch. 9276, 1923; CGL 4341; s. 3, ch. 83-260; s. 212, ch. 95-147.
38.12 Resignation, death, or removal of judges; disposition of pending matters and papers. Upon the resignation, death, or impeachment of any judge, all matters pending before that judge shall be heard and determined by the judges successor, and parties making any motion before such judge shall suffer no
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detriment by reason of his or her resignation, death, or impeachment. All judges, upon resignation or impeachment, shall file all papers pending before them with the clerk of the court in which the cause is pending; and the executor or administrator of any judge who dies pending any matter before him or her shall file all papers found among the papers of his or her intestate or testator with the said clerk.
History.ss. 1, 2, ch. 3007, 1877; RS 971, 972; GS 1341, 1342; RGS 2529, 2530; CGL 4156, 4157; s. 4, ch. 73-334; s. 1331, ch. 95-147.
38.13 Judge ad litem; when may be selected in the circuit or county court. When, from any cause, the judge of a circuit or county court is disqualified from presiding in any civil case, the parties may agree upon an attorney at law, which agreement shall be entered upon the record of said cause, who shall be judge ad litem and shall preside over the trial of, and make orders in, said case as if he or she were the judge of the court. Nothing in this section shall prevent the parties from transferring the cause to another circuit or county court, as the case may be.
History.s. 1, ch. 3713, 1887; RS 974; GS 1344; RGS 2533; CGL 4160; s. 7, ch. 22858, 1945; s. 4, ch. 73-334; s. 213, ch. 95-147.
38.22 Power to punish contempts. Every court may punish contempts against it whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.
History.s. 1, Nov. 23, 1828; RS 975; GS 1345; RGS 2534; CGL 4161; s. 1, ch. 23004, 1945; s. 4, ch. 73-334.
38.23 Contempts defined. A refusal to obey any legal order, mandate or decree, made or given by any judge either in term time or in vacation relative to any of the business of said court, after due notice thereof, shall be considered a contempt, and punished accordingly. But nothing said or written, or published, in vacation, to or of any judge, or of any decision made by a judge, shall in any case be construed to be a contempt.
History.s. 2, Nov. 23, 1828; RS 976; GS 1346; RGS 2535; CGL 4162.
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Title VI CIVIL PRACTICE AND PROCEDURE Chapter 57 COURT COSTS View Entire Chapter
57.105 Attorneys fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation. (1) Upon the courts initiative or motion of any party, the court shall award a reasonable attorneys fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing partys attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. (2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorneys fees, and other loss resulting from the improper delay. (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded: (a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing partys attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. (c) Under paragraph (1)(b) against a represented party. (d) On the courts initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorneys fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing partys attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. (6) The provisions of this section are supplemental to other sanctions or remedies available under law or
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under court rules. (7) If a contract contains a provision allowing attorneys fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorneys fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.
History.s. 1, ch. 78-275; s. 61, ch. 86-160; ss. 1, 2, ch. 88-160; s. 1, ch. 90-300; s. 316, ch. 95-147; s. 4, ch. 99-225; s. 1, ch. 2002-77; s. 9, ch. 2003-94; s. 1, ch. 2010-129.
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Select Year:

Title V JUDICIAL BRANCH Chapter 27 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES View Entire Chapter
27.52 Determination of indigent status. (1) APPLICATION TO THE CLERK.A person seeking appointment of a public defender under s. 27.51 based upon an inability to pay must apply to the clerk of the court for a determination of indigent status using an application form developed by the Florida Clerks of Court Operations Corporation with final approval by the Supreme Court. (a) The application must include, at a minimum, the following financial information: 1. Net income, consisting of total salary and wages, minus deductions required by law, including courtordered support payments. 2. Other income, including, but not limited to, social security benefits, union funds, veterans benefits, workers compensation, other regular support from absent family members, public or private employee pensions, reemployment assistance or unemployment compensation, dividends, interest, rent, trusts, and gifts. 3. Assets, including, but not limited to, cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a boat or a motor vehicle or in other tangible property. 4. All liabilities and debts. 5. If applicable, the amount of any bail paid for the applicants release from incarceration and the source of the funds. The application must include a signature by the applicant which attests to the truthfulness of the information provided. The application form developed by the corporation must include notice that the applicant may seek court review of a clerks determination that the applicant is not indigent, as provided in this section. (b) An applicant shall pay a $50 application fee to the clerk for each application for court-appointed counsel filed. The applicant shall pay the fee within 7 days after submitting the application. If the applicant does not pay the fee prior to the disposition of the case, the clerk shall notify the court, and the court shall: 1. Assess the application fee as part of the sentence or as a condition of probation; or 2. Assess the application fee pursuant to s. 938.29. (c) Notwithstanding any provision of law, court rule, or administrative order, the clerk shall assign the first $50 of any fees or costs paid by an indigent person as payment of the application fee. A person found to be indigent may not be refused counsel or other required due process services for failure to pay the fee. (d) All application fees collected by the clerk under this section shall be transferred monthly by the clerk to the Department of Revenue for deposit in the Indigent Criminal Defense Trust Fund administered by the Justice Administrative Commission, to be used to as appropriated by the Legislature. The clerk may retain 2 percent of application fees collected monthly for administrative costs prior to remitting the remainder to the Department of Revenue. (e)1. The clerk shall assist a person who appears before the clerk and requests assistance in completing the application, and the clerk shall notify the court if a person is unable to complete the application after the
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clerk has provided assistance. 2. If the person seeking appointment of a public defender is incarcerated, the public defender is responsible for providing the application to the person and assisting him or her in its completion and is responsible for submitting the application to the clerk on the persons behalf. The public defender may enter into an agreement for jail employees, pretrial services employees, or employees of other criminal justice agencies to assist the public defender in performing functions assigned to the public defender under this subparagraph. (2) DETERMINATION BY THE CLERK.The clerk of the court shall determine whether an applicant seeking appointment of a public defender is indigent based upon the information provided in the application and the criteria prescribed in this subsection. (a) An applicant, including an applicant who is a minor or an adult tax-dependent person, is indigent if the applicants income is equal to or below 200 percent of the then-current federal poverty guidelines prescribed for the size of the household of the applicant by the United States Department of Health and Human Services or if the person is receiving Temporary Assistance for Needy Families-Cash Assistance, poverty-related veterans benefits, or Supplemental Security Income (SSI). 1. There is a presumption that the applicant is not indigent if the applicant owns, or has equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property having a net equity value of $2,500 or more, excluding the value of the persons homestead and one vehicle having a net value not exceeding $5,000. 2. Notwithstanding the information that the applicant provides, the clerk may conduct a review of the property records for the county in which the applicant resides and the motor vehicle title records of the state to identify any property interests of the applicant under this paragraph. The clerk may evaluate and consider the results of the review in making a determination under this subsection. If the review is 1conducted, the clerk shall maintain the results of the review in a file with the application and provide the file to the court if the applicant seeks review under subsection (4) of the clerks determination of indigent status. (b) Based upon its review, the clerk shall make one of the following determinations: 1. The applicant is not indigent. 2. The applicant is indigent. (c)1. If the clerk determines that the applicant is indigent, the clerk shall submit the determination to the office of the public defender and immediately file the determination in the case file. 2. If the public defender is unable to provide representation due to a conflict pursuant to s. 27.5303, the public defender shall move the court for withdrawal from representation and appointment of the office of criminal conflict and civil regional counsel. (d) The duty of the clerk in determining whether an applicant is indigent shall be limited to receiving the application and comparing the information provided in the application to the criteria prescribed in this subsection. The determination of indigent status is a ministerial act of the clerk and not a decision based on further investigation or the exercise of independent judgment by the clerk. The clerk may contract with third parties to perform functions assigned to the clerk under this section. (e) The applicant may seek review of the clerks determination that the applicant is not indigent in the court having jurisdiction over the matter at the next scheduled hearing. If the applicant seeks review of the clerks determination of indigent status, the court shall make a final determination as provided in subsection (4). (3) APPOINTMENT OF COUNSEL ON INTERIM BASIS.If the clerk of the court has not made a determination of indigent status at the time a person requests appointment of a public defender, the court shall make a preliminary determination of indigent status, pending further review by the clerk, and may, by court order, appoint a public defender, the office of criminal conflict and civil regional counsel, or private counsel on an
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interim basis. (4) REVIEW OF CLERKS DETERMINATION. (a) If the clerk of the court determines that the applicant is not indigent, and the applicant seeks review of the clerks determination, the court shall make a final determination of indigent status by reviewing the information provided in the application against the criteria prescribed in subsection (2) and by considering the following additional factors: 1. Whether the applicant has been released on bail in an amount of $5,000 or more. 2. Whether a bond has been posted, the type of bond, and who paid the bond. 3. Whether paying for private counsel in an amount that exceeds the limitations in s. 27.5304, or other due process services creates a substantial hardship for the applicant or the applicants family. 4. Any other relevant financial circumstances of the applicant or the applicants family. (b) Based upon its review, the court shall make one of the following determinations and, if the applicant is indigent, shall appoint a public defender, the office of criminal conflict and civil regional counsel, or, if appropriate, private counsel: 1. The applicant is not indigent. 2. The applicant is indigent. (5) INDIGENT FOR COSTS.A person who is eligible to be represented by a public defender under s. 27.51 but who is represented by private counsel not appointed by the court for a reasonable fee as approved by the court or on a pro bono basis, or who is proceeding pro se, may move the court for a determination that he or she is indigent for costs and eligible for the provision of due process services, as prescribed by ss. 29.006 and 29.007, funded by the state. (a) The person must file a written motion with the court and submit to the court: 1. The completed application prescribed in subsection (1). 2. In the case of a person represented by counsel, an affidavit attesting to the estimated amount of attorneys fees and the source of payment for these fees. (b) The person shall arrange for service of a copy of the motion and attachments on the Justice Administrative Commission. The commission has standing to appear before the court to contest any motion to declare a person indigent for costs and may participate in a hearing on the motion by use of telephonic or other communication equipment. (c) If the person did not apply for a determination of indigent status under subsection (1) in the same case and is not already liable for the application fee required under that subsection, he or she becomes liable for payment of the fee upon filing the motion with the court. (d) In reviewing the motion, the court shall consider: 1. Whether the applicant applied for a determination of indigent status under subsection (1) and the outcome of such application. 2. The extent to which the persons income equals or exceeds the income criteria prescribed in subsection (2). 3. The additional factors prescribed in subsection (4). 4. Whether the applicant is proceeding pro se. 5. When the applicant retained private counsel. 6. The amount of any attorneys fees and who is paying the fees. There is a presumption that the applicant is not indigent for costs if the amount of attorneys fees exceeds $5,000 for a noncapital case or $25,000 for a capital case in which the state is seeking the death penalty. To overcome this presumption, the applicant has the burden to show through clear and convincing evidence that the fees are reasonable based on the nature and complexity of the case. In determining the reasonableness of the fees, the court shall consider the amount that a private court-appointed attorney paid by the state would receive for providing representation for that
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type of case. (e) Based upon its review, the court shall make one of the following determinations: 1. The applicant is not indigent for costs. 2. The applicant is indigent for costs. (f) The provision of due process services based upon a determination that a person is indigent for costs under this subsection must be effectuated pursuant to a court order, a copy of which the clerk shall provide to counsel representing the person, or to the person directly if he or she is proceeding pro se, for use in requesting payment of due process expenses through the Justice Administrative Commission. Private counsel representing a person declared indigent for costs shall execute the Justice Administrative Commissions contract for counsel representing persons determined to be indigent for costs. Private counsel representing a person declared indigent for costs may not receive state funds, either directly or on behalf of due process providers, unless the attorney has executed the contract required under this paragraph. (g) Costs shall be reimbursed at the rates established under ss. 27.425 and 27.5305. To receive reimbursement of costs, either directly or on behalf of due process providers, private counsel representing a person declared indigent for costs shall comply with the procedures and requirements under this chapter governing billings by and compensation of private court-appointed counsel. (h) The court may not appoint an attorney paid by the state based on a finding that the defendant is indigent for costs if the defendant has privately retained and paid counsel. (i) A defendant who is found guilty of a criminal act by a court or jury or enters a plea of guilty or nolo contendere and who received due process services after being found indigent for costs under this subsection is liable for payment of due process costs expended by the state. 1. The attorney representing the defendant, or the defendant if he or she is proceeding pro se, shall provide an accounting to the court delineating all costs paid or to be paid by the state within 90 days after disposition of the case notwithstanding any appeals. 2. The court shall issue an order determining the amount of all costs paid by the state and any costs for which prepayment was waived under this section or s. 57.081. The clerk shall cause a certified copy of the order to be recorded in the official records of the county, at no cost. The recording constitutes a lien against the person in favor of the state in the county in which the order is recorded. The lien may be enforced in the same manner prescribed in s. 938.29. 3. If the attorney or the pro se defendant fails to provide a complete accounting of costs expended by the state and consequently costs are omitted from the lien, the attorney or pro se defendant may not receive reimbursement or any other form of direct or indirect payment for those costs if the state has not paid the costs. The attorney or pro se defendant shall repay the state for those costs if the state has already paid the costs. The clerk of the court may establish a payment plan under s. 28.246 and may charge the attorney or pro se defendant a one-time administrative processing charge under s. 28.24(26)(c). (6) DUTIES OF PARENT OR LEGAL GUARDIAN.A nonindigent parent or legal guardian of an applicant who is a minor or an adult tax-dependent person shall furnish the minor or adult tax-dependent person with the necessary legal services and costs incident to a delinquency proceeding or, upon transfer of such person for criminal prosecution as an adult pursuant to chapter 985, a criminal prosecution in which the person has a right to legal counsel under the Constitution of the United States or the Constitution of the State of Florida. The failure of a parent or legal guardian to furnish legal services and costs under this section does not bar the appointment of legal counsel pursuant to this section, s. 27.40, or s. 27.5303. When the public defender, the office of criminal conflict and civil regional counsel, a private court-appointed conflict counsel, or a private attorney is appointed to represent a minor or an adult tax-dependent person in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian shall be liable for payment of the fees, charges, and costs of the representation even if the person is a minor being tried as an adult.
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Liability for the fees, charges, and costs of the representation shall be imposed in the form of a lien against the property of the nonindigent parents or legal guardian of the minor or adult tax-dependent person. The lien is enforceable as provided in s. 27.561 or s. 938.29. (7) FINANCIAL DISCREPANCIES; FRAUD; FALSE INFORMATION. (a) If the court learns of discrepancies between the application or motion and the actual financial status of the person found to be indigent or indigent for costs, the court shall determine whether the public defender, office of criminal conflict and civil regional counsel, or private attorney shall continue representation or whether the authorization for any other due process services previously authorized shall be revoked. The person may be heard regarding the information learned by the court. If the court, based on the information, determines that the person is not indigent or indigent for costs, the court shall order the public defender, office of criminal conflict and civil regional counsel, or private attorney to discontinue representation and revoke the provision of any other authorized due process services. (b) If the court has reason to believe that any applicant, through fraud or misrepresentation, was improperly determined to be indigent or indigent for costs, the matter shall be referred to the state attorney. Twenty-five percent of any amount recovered by the state attorney as reasonable value of the services rendered, including fees, charges, and costs paid by the state on the persons behalf, shall be remitted to the Department of Revenue for deposit into the Grants and Donations Trust Fund within the Justice Administrative Commission. Seventy-five percent of any amount recovered shall be remitted to the Department of Revenue for deposit into the General Revenue Fund. (c) A person who knowingly provides false information to the clerk or the court in seeking a determination of indigent status under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.s. 3, ch. 63-409; s. 1, ch. 70-57; s. 4, ch. 73-334; s. 1, ch. 77-99; s. 1, ch. 77-378; s. 8, ch. 79-164; s. 3, ch. 80-376; s. 1, ch. 81-273; s. 139, ch. 95-147; s. 1, ch. 96-232; s. 4, ch. 97-107; s. 28, ch. 97-271; s. 6, ch. 98-280; s. 3, ch. 2001-122; s. 16, ch. 2003-402; s. 9, ch. 2004-265; s. 3, ch. 2005-236; s. 6, ch. 2007-62; s. 4, ch. 2008-111; s. 8, ch. 2010-162; s. 31, ch. 2012-30; s. 1, ch. 2012-100; s. 3, ch. 2012-123.
1Note.As amended by s. 3, ch. 2012-123. The amendment by s. 1, ch. 2012-100, used the words completed by the clerk
instead of the word conducted.
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Select Year:

Title XLVII View Entire Chapter Chapter 934 CRIMINAL PROCEDURE AND CORRECTIONS SECURITY OF COMMUNICATIONS CHAPTER 934 SECURITY OF COMMUNICATIONS 934.01 Legislative findings. 934.02 Definitions. 934.03 Interception and disclosure of wire, oral, or electronic communications prohibited. 934.04 Manufacture, distribution, or possession of wire, oral, or electronic communication intercepting devices prohibited. 934.05 Confiscation of wire, oral, or electronic communication intercepting devices. 934.06 Prohibition of use as evidence of intercepted wire or oral communications; exception. 934.07 Authorization for interception of wire, oral, or electronic communications. 934.08 Authorization for disclosure and use of intercepted wire, oral, or electronic communications. 934.09 Procedure for interception of wire, oral, or electronic communications. 934.10 Civil remedies. 934.15 Situations in which law enforcement officer may order telephone line cut, rerouted, or diverted. 934.21 Unlawful access to stored communications; penalties. 934.215 Unlawful use of a two-way communications device. 934.22 Voluntary disclosure of customer communications or records. 934.23 Required disclosure of customer communications or records. 934.24 Backup preservation; customer notification; challenges by customer. 934.25 Delayed notice. 934.26 Cost reimbursement. 934.27 Civil action: relief; damages; defenses. 934.28 Exclusivity of remedies and sanctions. 934.31 General prohibition on pen register and trap and trace device use; exception. 934.32 Application for an order for a pen register or a trap and trace device. 934.33 Issuance of an order for a pen register or a trap and trace device. 934.34 Assistance in installation and use of a pen register or a trap and trace device. 934.41 Alternative penalty. 934.42 Mobile tracking device authorization. 934.43 Criminal disclosure of subpoena, order, or authorization. 934.01 Legislative findings. On the basis of its own investigations and of published studies, the Legislature makes the following findings: (1) Wire communications are normally conducted through the use of facilities which form part of an intrastate network. The same facilities are used for interstate and intrastate communications. (2) In order to protect effectively the privacy of wire and oral communications, to protect the integrity of
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court and administrative proceedings, and to prevent the obstruction of intrastate commerce, it is necessary for the Legislature to define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings. (3) Organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice. (4) To safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurance that the interception is justified and that the information obtained thereby will not be misused.
934.02 Definitions. As used in this chapter: (1) Wire communication means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception including the use of such connection in a switching station furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate, or foreign communications or communications affecting intrastate, interstate, or foreign commerce. (2) Oral communication means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication. (3) Intercept means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. (4) Electronic, mechanical, or other device means any device or apparatus which can be used to intercept a wire, electronic, or oral communication other than: (a) Any telephone or telegraph instrument, equipment, or facility, or any component thereof: 1. Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or 2. Being used by a provider of wire or electronic communications service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of her or his duties. (b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal. (5) Person means any employee or agent of the State of Florida or political subdivision thereof, of the United States, or of any other state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation. (6) Investigative or law enforcement officer means any officer of the State of Florida or political subdivision thereof, of the United States, or of any other state or political subdivision thereof, who is empowered by law to conduct on behalf of the Government investigations of, or to make arrests for, offenses enumerated in this chapter or similar federal offenses, any attorney authorized by law to prosecute or participate in the prosecution of such offenses, or any other attorney representing the State of Florida or political subdivision thereof in any civil, regulatory, disciplinary, or forfeiture action relating to, based upon, or derived from such offenses.
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(7) Contents, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication. (8) Judge of competent jurisdiction means justice of the Supreme Court, judge of a district court of appeal, circuit judge, or judge of any court of record having felony jurisdiction of the State of Florida, irrespective of the geographic location or jurisdiction where the judge presides. (9) Aggrieved person means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed. (10) Law enforcement agency means an agency of the State of Florida or a political subdivision thereof or of the United States if the primary responsibility of the agency is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state and if its agents and officers are empowered by law to conduct criminal investigations and to make arrests. (11) Communication common carrier shall have the same meaning which is given the term common carrier in 47 U.S.C. s. 153(10). (12) Electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects intrastate, interstate, or foreign commerce, but does not include: (a) Any wire or oral communication; (b) Any communication made through a tone-only paging device; (c) Any communication from an electronic or mechanical device which permits the tracking of the movement of a person or an object; or (d) Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. (13) User means any person or entity who: (a) Uses an electronic communication service, and (b) Is duly authorized by the provider of such service to engage in such use. (14) Electronic communications system means any wire, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications. (15) Electronic communication service means any service which provides to users thereof the ability to send or receive wire or electronic communications. (16) Readily accessible to the general public means, with respect to a radio communication, that such communication is not: (a) Scrambled or encrypted; (b) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (c) Carried on a subcarrier or other signal subsidiary to a radio transmission; (d) Transmitted over a communications system provided by a common carrier, unless the communication is a tone-only paging system communication; or (e) Transmitted on frequencies allocated under part 25; subpart D, subpart E, or subpart F of part 74; or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio. (17) Electronic storage means: (a) Any temporary intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof. (b) Any storage of a wire or electronic communication by an electronic communication service for
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purposes of backup protection of such communication. (18) Aural transfer means a transfer containing the human voice at any point between and including the point of origin and the point of reception. (19) Remote computing service means the provision to the public of computer storage or processing services by means of an electronic communications system. (20) Pen register means a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication. The term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing or recording as an incident to billing or for communication services provided by such provider, and does not include any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business. (21) Trap and trace device means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication. (22) State means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any other possession or territory of the United States. (23) Subpoena means any administrative subpoena authorized by federal or Florida law, federal or Florida grand jury subpoena, or any criminal investigative subpoena as authorized by Florida statute which may be utilized on behalf of the government by an investigative or law enforcement officer. (24) Foreign intelligence information means information, whether or not concerning a United States person, as that term is defined in 50 U.S.C. s. 1801, which relates to: (a) The ability of the United States to protect against actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (b) Sabotage or international terrorism by a foreign power or an agent of a foreign power; (c) Clandestine intelligence activities by an intelligence service, a network of a foreign power, or an agent of a foreign power; or (d) With respect to a foreign power or foreign territory, the national defense or security of the United States or the conduct of the foreign affairs of the United States. (25) Protected computer means: (a) A computer for the exclusive use of a financial institution or governmental entity; (b) A computer that is not for the exclusive use of a financial institution or governmental entity, but that is used by or for a financial institution or governmental entity and with respect to which unlawful conduct can affect the use by or for the financial institution or governmental entity; or (c) A computer that is used in interstate or foreign commerce or communication, including a computer located outside the United States. (26) Computer trespasser means a person who accesses a protected computer without authorization and thus does not have a reasonable expectation of privacy with respect to any communication transmitted to, through, or from the protected computer. The term does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.
History.s. 2, ch. 69-17; s. 1, ch. 72-294; s. 1, ch. 74-249; s. 1, ch. 80-27; s. 1, ch. 88-184; s. 1, ch. 89-269; s. 1581, ch. 97-102; s. 8, ch. 2000-369; s. 1, ch. 2002-72; s. 125, ch. 2010-5.
934.03 Interception and disclosure of wire, oral, or electronic communications prohibited. (1) Except as otherwise specifically provided in this chapter, any person who:
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(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication; (b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when: 1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or 2. Such device transmits communications by radio or interferes with the transmission of such communication; (c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; (d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or (e) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede, or interfere with a duly authorized criminal investigation; shall be punished as provided in subsection (4). (2)(a)1. It is lawful under ss. 934.03-934.09 for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. 2. Notwithstanding any other law, a provider of wire, oral, or electronic communication service, or an officer, employee, or agent thereof, or landlord, custodian, or other person, may provide information, facilities, or technical assistance to a person authorized by law to intercept wire, oral, or electronic communications if such provider, or an officer, employee, or agent thereof, or landlord, custodian, or other person, has been provided with: a. A court order directing such assistance signed by the authorizing judge; or b. A certification in writing by a person specified in s. 934.09(7) that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. 3. A provider of wire, oral, or electronic communication service, or an officer, employee, or agent thereof, or landlord, custodian, or other person may not disclose the existence of any interception or the device used to accomplish the interception with respect to which the person has been furnished an order under ss. 934.03-934.09, except as may otherwise be required by legal process and then only after prior notice to the Governor, the Attorney General, the statewide prosecutor, or a state attorney, as may be appropriate. Any such disclosure renders such person liable for the civil damages provided under s. 934.10, and such person may be prosecuted under s. 934.43. An action may not be brought against any provider of wire, oral, or electronic communication service, or an officer, employee, or agent thereof, or landlord, custodian, or other person for
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providing information, facilities, or assistance in accordance with the terms of a court order under ss. 934.03-934.09. (b) It is lawful under ss. 934.03-934.09 for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his or her employment and in discharge of the monitoring responsibilities exercised by the commission in the enforcement of 47 U.S.C. ch. 5, to intercept a wire, oral, or electronic communication transmitted by radio or to disclose or use the information thereby obtained. (c) It is lawful under ss. 934.03-934.09 for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act. (d) It is lawful under ss. 934.03-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception. (e) It is unlawful to intercept any wire, oral, or electronic communication for the purpose of committing any criminal act. (f) It is lawful under ss. 934.03-934.09 for an employee of a telephone company to intercept a wire communication for the sole purpose of tracing the origin of such communication when the interception is requested by the recipient of the communication and the recipient alleges that the communication is obscene, harassing, or threatening in nature. The individual conducting the interception shall notify local police authorities within 48 hours after the time of the interception. (g) It is lawful under ss. 934.03-934.09 for an employee of: 1. An ambulance service licensed pursuant to s. 401.25, a fire station employing firefighters as defined by s. 633.30, a public utility, a law enforcement agency as defined by s. 934.02(10), or any other entity with published emergency telephone numbers; 2. An agency operating an emergency telephone number 911 system established pursuant to s. 365.171; or 3. The central abuse hotline operated pursuant to s. 39.201 to intercept and record incoming wire communications; however, such employee may intercept and record incoming wire communications on designated 911 telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only. It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested. For the purpose of this paragraph, the term public utility has the same meaning as provided in s. 366.02 and includes a person, partnership, association, or corporation now or hereafter owning or operating equipment or facilities in the state for conveying or transmitting messages or communications by telephone or telegraph to the public for compensation. (h) It shall not be unlawful under ss. 934.03-934.09 for any person: 1. To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public. 2. To intercept any radio communication which is transmitted: a. By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress; b. By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including any police or fire communications system, readily accessible to the general public; c. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens
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band, or general mobile radio services; or d. By any marine or aeronautical communications system. 3. To engage in any conduct which: a. Is prohibited by s. 633 of the Communications Act of 1934; or b. Is excepted from the application of s. 705(a) of the Communications Act of 1934 by s. 705(b) of that act. 4. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station of consumer electronic equipment to the extent necessary to identify the source of such interference. 5. To intercept, if such person is another user of the same frequency, any radio communication that is not scrambled or encrypted made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system. 6. To intercept a satellite transmission that is not scrambled or encrypted and that is transmitted: a. To a broadcasting station for purposes of retransmission to the general public; or b. As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, when such interception is not for the purposes of direct or indirect commercial advantage or private financial gain. 7. To intercept and privately view a private satellite video communication that is not scrambled or encrypted or to intercept a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted, if such interception is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain. (i) It shall not be unlawful under ss. 934.03-934.09: 1. To use a pen register or a trap and trace device as authorized under ss. 934.31-934.34 or under federal law; or 2. For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful, or abusive use of such service. (j) It is not unlawful under ss. 934.03-934.09 for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser which are transmitted to, through, or from a protected computer if: 1. The owner or operator of the protected computer authorizes the interception of the communications of the computer trespasser; 2. The person acting under color of law is lawfully engaged in an investigation; 3. The person acting under color of law has reasonable grounds to believe that the contents of the communications of the computer trespasser will be relevant to the investigation; and 4. The interception does not acquire communications other than those transmitted to, through, or from the computer trespasser. (3)(a) Except as provided in paragraph (b), a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. (b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication: 1. As otherwise authorized in paragraph (2)(a) or s. 934.08; 2. With the lawful consent of the originator or any addressee or intended recipient of such communication;
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3. To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or 4. Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency. (4)(a) Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41. (b) If the offense is a first offense under paragraph (a) and is not for any tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) was committed is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then: 1. If the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, and the conduct is not that described in subparagraph (2)(h)7., the person committing the offense is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. 2. If the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, the person committing the offense is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.s. 3, ch. 69-17; s. 1163, ch. 71-136; ss. 2, 3, ch. 74-249; s. 249, ch. 77-104; s. 1, ch. 78-376; s. 187, ch. 79-164; s. 2, ch. 80-27; s. 1, ch. 87-301; s. 2, ch. 88-184; s. 2, ch. 89-269; s. 1582, ch. 97-102; s. 18, ch. 99-168; ss. 7, 9, ch. 2000-369; s. 2, ch. 2002-72; s. 30, ch. 2010-117.
934.04 Manufacture, distribution, or possession of wire, oral, or electronic communication intercepting devices prohibited. (1) Except as otherwise specifically provided in this chapter, any person who intentionally: (a) Sends through the mail or otherwise sends or carries any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the illegal interception of wire, oral, or electronic communications as specifically defined by this chapter; or (b) Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the illegal interception of wire, oral, or electronic communications as specifically defined by this chapter; shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) It is not unlawful under this section for: (a) A provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service; or (b) An officer, agent, or employee of, or a person under contract with, bidding upon contracts with, or in the course of doing business with, the United States, a state, or a political subdivision thereof, in the normal course of the activities of the United States, a state, or a political subdivision thereof, to send through the mail; send or carry in intrastate, interstate, or foreign commerce; or manufacture, assemble, possess, or sell any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.
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934.05 Confiscation of wire, oral, or electronic communication intercepting devices. Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, or sold in violation of this chapter may be seized and forfeited to the state.
History.s. 5, ch. 69-17; s. 4, ch. 88-184.
934.06 Prohibition of use as evidence of intercepted wire or oral communications; exception. Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.
History.s. 6, ch. 69-17; s. 4, ch. 89-269.
934.07 Authorization for interception of wire, oral, or electronic communications. (1) The Governor, the Attorney General, the statewide prosecutor, or any state attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with ss. 934.03-934.09 an order authorizing or approving the interception of, wire, oral, or electronic communications by: (a) The Department of Law Enforcement or any law enforcement agency as defined in s. 934.02 having responsibility for the investigation of the offense as to which the application is made when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, aircraft piracy, arson, gambling, robbery, burglary, theft, dealing in stolen property, criminal usury, bribery, or extortion; any felony violation of ss. 790.161-790.166, inclusive; any violation of s. 787.06; any violation of chapter 893; any violation of the provisions of the Florida Anti-Fencing Act; any violation of chapter 895; any violation of chapter 896; any violation of chapter 815; any violation of chapter 847; any violation of s. 827.071; any violation of s. 944.40; or any conspiracy or solicitation to commit any violation of the laws of this state relating to the crimes specifically enumerated in this paragraph. (b) The Department of Law Enforcement, together with other assisting personnel as authorized and requested by the department under s. 934.09(5), for the investigation of the offense as to which the application is made when such interception may provide or has provided evidence of the commission of any offense that may be an act of terrorism or in furtherance of an act of terrorism or evidence of any conspiracy or solicitation to commit any such violation. (2)(a) If, during the course of an interception of communications by a law enforcement agency as authorized under paragraph (1)(a), the law enforcement agency finds that the intercepted communications may provide or have provided evidence of the commission of any offense that may be an act of terrorism or in furtherance of an act of terrorism, or evidence of any conspiracy or solicitation to commit any such violation, the law enforcement agency shall promptly notify the Department of Law Enforcement and apprise the department of the contents of the intercepted communications. The agency notifying the department may continue its previously authorized interception with appropriate minimization, as applicable, and may otherwise assist the department as provided in this section. (b) Upon its receipt of information of the contents of an intercepted communications from a law enforcement agency, the Department of Law Enforcement shall promptly review the information to determine whether the information relates to an actual or anticipated act of terrorism as defined in this section. If, after reviewing the contents of the intercepted communications, there is probable cause that the contents of the intercepted communications meet the criteria of paragraph (1)(b), the Department of Law Enforcement may
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make application for the interception of wire, oral, or electronic communications consistent with paragraph (1)(b). The department may make an independent new application for interception based on the contents of the intercepted communications. Alternatively, the department may request the law enforcement agency that provided the information to join with the department in seeking an amendment of the original interception order, or may seek additional authority to continue intercepting communications under the direction of the department. In carrying out its duties under this section, the department may use the provisions for an emergency interception provided in s. 934.09(7) if applicable under statutory criteria. (3) As used in this section, the term terrorism means an activity that: (a)1. Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or 2. Involves a violation of s. 815.06; and (b) Is intended to: 1. Intimidate, injure, or coerce a civilian population; 2. Influence the policy of a government by intimidation or coercion; or 3. Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.
History.s. 7, ch. 69-17; ss. 11, 20, 35, ch. 69-106; s. 42, ch. 73-334; s. 1, ch. 77-174; s. 15, ch. 77-342; s. 33, ch. 79-8; s. 5, ch. 88-184; s. 5, ch. 89-269; s. 14, ch. 91-33; s. 10, ch. 2000-369; s. 1, ch. 2001-359; s. 3, ch. 2002-72; s. 10, ch. 2012-97.
934.08 Authorization for disclosure and use of intercepted wire, oral, or electronic communications. (1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may disclose such contents to: (a) The Department of Legal Affairs for use in investigations or proceedings pursuant to s. 812.035, part II of chapter 501, chapter 542, or chapter 895, to any attorney authorized by law to investigate and institute any action on behalf of the State of Florida or political subdivision thereof, or to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer or person making or receiving the disclosure. (b) Any state or federal law enforcement official, state or federal intelligence official, state or federal protective services official, federal immigration official, state or federal defense official, or state or federal security official to the extent that the contents or evidence includes foreign intelligence or counterintelligence, as defined in 50 U.S.C. s. 401a, or foreign intelligence information, as defined in this chapter, in order to assist the official who receives that information in performing his or her official duties. Any state or federal official who receives information under this subsection may use that information only as necessary in conducting official duties and is subject to any limitations on the unauthorized disclosure of such information. (2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of her or his official duties. (3) Any person who has received, by any means authorized by this chapter, or by the laws of any other state or the United States, any information concerning a wire, oral, or electronic communication or evidence derived therefrom, intercepted in accordance with the provisions of this chapter, may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the state or of the United States; in any grand jury proceedings; in any proceeding pursuant to s. 812.035, part II of chapter 501, chapter 542, or chapter 895; in any investigation or
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proceeding in connection with the Judicial Qualifications Commission; or in any other proceeding or investigation held under the authority of the State of Florida or any political subdivision thereof, of the United States, or of any other state or political subdivision thereof, if such testimony is otherwise admissible. (4) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character, provided that a communication otherwise lawfully intercepted pursuant to this chapter is not privileged when such communication is in furtherance of the commission of a crime. (5) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof and evidence derived therefrom may be disclosed or used as provided in subsections (1) and (2). Such contents and any evidence derived therefrom may be used under subsection (3) when authorized or approved by a judge of competent jurisdiction when such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
History.s. 8, ch. 69-17; s. 2, ch. 72-294; s. 1, ch. 73-361; s. 6, ch. 88-184; s. 6, ch. 89-269; s. 1583, ch. 97-102; s. 6, ch. 2002-72.
934.09 Procedure for interception of wire, oral, or electronic communications. (1) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under ss. 934.03-934.09 shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicants authority to make such application. Each application shall include the following information: (a) The identity of the investigative or law enforcement officer making the application and the officer authorizing the application. (b) A full and complete statement of the facts and circumstances relied upon by the applicant to justify his or her belief that an order should be issued, including: 1. Details as to the particular offense that has been, is being, or is about to be committed. 2. Except as provided in subsection (11), a particular description of the nature and location of the facilities from which, or the place where, the communications are to be intercepted. 3. A particular description of the type of communications sought to be intercepted. 4. The identity of the person, if known, committing the offense and whose communications are to be intercepted. (c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. (d) A statement of the period of time for which the interception is required to be maintained and, if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter. (e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application. (f) When the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception or a reasonable explanation of the failure to obtain such results. (2) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
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(3) Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting, and outside such jurisdiction but within the State of Florida in the case of a mobile interception device authorized by the judge within such jurisdiction, if the judge determines on the basis of the facts submitted by the applicant that: (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit an offense as provided in s. 934.07. (b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception. (c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. (d) Except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person. (4) Each order authorizing or approving the interception of any wire, oral, or electronic communication shall specify: (a) The identity of the person, if known, whose communications are to be intercepted. (b) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted. (c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates. (d) The identity of the agency authorized to intercept the communications and of the person authorizing the application. (e) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. An order authorizing the interception of a wire, oral, or electronic communication shall, upon the request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. The obligation of a provider of wire, oral, or electronic communication service under such an order may include, but is not limited to, conducting an in-progress trace during an interception, or providing other assistance to support the investigation as may be specified in the order. Any provider of wire or electronic communication service, landlord, custodian, or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing such facilities or assistance. (5) No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization or in any event longer than 30 days. Such 30-day period begins on the day on which the agent or officer of the law enforcement agency first begins to conduct an interception under the order or 10 days after the order is entered, whichever occurs earlier. Extensions of an order may be granted but only upon application for an extension made in accordance with subsection (1) and upon the court making the findings required by subsection (3). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days. Every
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order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under ss. 934.03-934.09, and must terminate upon attainment of the authorized objective or in any event in 30 days. If the intercepted communication is in code or foreign language and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. An interception under ss. 934.03-934.09 may be conducted in whole or in part by government personnel or by an individual operating under a contract with the government, acting under the supervision of an agent or officer of the law enforcement agency authorized to conduct the interception. (6) Whenever an order authorizing interception is entered pursuant to ss. 934.03-934.09, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require. (7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer specially designated by the Governor, the Attorney General, the statewide prosecutor, or a state attorney acting under this chapter, who reasonably determines that: (a) An emergency exists that: 1. Involves immediate danger of death or serious physical injury to any person, the danger of escape of a prisoner, or conspiratorial activities threatening the security interest of the nation or state; and 2. Requires that a wire, oral, or electronic communication be intercepted before an order authorizing such interception can, with due diligence, be obtained; and (b) There are grounds upon which an order could be entered under this chapter to authorize such interception may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within 48 hours after the interception has occurred or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. If such application for approval is denied, or in any other case in which the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of s. 934.03(4), and an inventory shall be served as provided for in paragraph (8)(e) on the person named in the application. (8)(a) The contents of any wire, oral, or electronic communication intercepted by any means authorized by ss. 934.03-934.09 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be kept in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his or her directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge, or that judges successor in office, and in any event shall be kept for 10 years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of s. 934.08(1) and (2) for investigations. (b) The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under s. 934.08(3), as required by federal law. (c) Applications made and orders granted under ss. 934.03-934.09 shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. As required by federal law, such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and
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shall not be destroyed except on order of the issuing or denying judge, or that judges successor in office, and in any event shall be kept for 10 years. (d) Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge. (e) Within a reasonable time but not later than 90 days after the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his or her discretion to be in the interest of justice, an inventory which shall include notice of: 1. The fact of the entry of the order or the application. 2. The date of the entry and the period of authorized, approved, or disapproved interception, or the denial of the application. 3. The fact that during the period wire, oral, or electronic communications were or were not intercepted. The judge, upon the filing of a motion, may make available to such person or the persons counsel for inspection such portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the inventory required by this paragraph may be postponed. (9) As required by federal law, the contents of any intercepted wire, oral, or electronic communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a copy of the court order and accompanying application under which the interception was authorized or approved. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information. (10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that: 1. The communication was unlawfully intercepted; 2. The order of authorization or approval under which it was intercepted is insufficient on its face; or 3. The interception was not made in conformity with the order of authorization or approval. Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of ss. 934.03-934.09. The judge, upon the filing of such motion by the aggrieved person, may make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interest of justice. (b) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) or the denial of an application for an order of approval if the attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted. (c) The remedies and sanctions described in ss. 934.03-934.10 with respect to the interception of electronic communications are the only judicial remedies and sanctions for violations of those sections involving such communications. (11) The requirements of subparagraph (1)(b)2. and paragraph (3)(d) relating to the specification of the
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facilities from which, or the place where, the communication is to be intercepted do not apply if: (a) In the case of an application with respect to the interception of an oral communication: 1. The application is by an agent or officer of a law enforcement agency and is approved by the Governor, the Attorney General, the statewide prosecutor, or a state attorney. 2. The application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted. 3. The judge finds that such specification is not practical. (b) In the case of an application with respect to a wire or electronic communication: 1. The application is by an agent or officer of a law enforcement agency and is approved by the Governor, the Attorney General, the statewide prosecutor, or a state attorney. 2. The application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing that there is probable cause to believe that the persons actions could have the effect of thwarting interception from a specified facility or that the person whose communications are to be intercepted has removed, or is likely to remove, himself or herself to another judicial circuit within the state. 3. The judge finds that such showing has been adequately made. 4. The order authorizing or approving the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is or was reasonably proximate to the instrument through which such communication will be or was transmitted. Consistent with this paragraph, a judge of competent jurisdiction may authorize interception within this state, whether the interception is within or outside the courts jurisdiction, if the application for the interception makes a showing that some activity or conspiracy believed to be related to, or in furtherance of, the criminal predicate for the requested interception has occurred or will likely occur, or the communication to be intercepted or expected to be intercepted is occurring or will likely occur, in whole or in part, within the jurisdiction of the court where the order is being sought. (12) If an interception of a communication is to be carried out pursuant to subsection (11), such interception may not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order as provided under paragraph (11)(b) may petition the court to modify or quash the order on the ground that the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the state, shall decide such a petition expeditiously.
History.s. 9, ch. 69-17; s. 2, ch. 78-376; s. 7, ch. 88-184; s. 7, ch. 89-269; s. 1, ch. 94-101; s. 92, ch. 95-211; s. 1584, ch. 97-102; s. 11, ch. 2000-369; ss. 2, 3, ch. 2001-359; ss. 4, 5, ch. 2002-72.
934.10 Civil remedies. (1) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09 shall have a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use, such communications and shall be entitled to recover from any such person or entity which engaged in that violation such relief as may be appropriate, including: (a) Preliminary or equitable or declaratory relief as may be appropriate; (b) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (c) Punitive damages; and (d) A reasonable attorneys fee and other litigation costs reasonably incurred. (2) A good faith reliance on:
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(a) A court order, subpoena, or legislative authorization as provided in ss. 934.03-934.09, (b) A request of an investigative or law enforcement officer under s. 934.09(7), or (c) A good faith determination that Florida or federal law, other than 18 U.S.C. s. 2511(2)(d), permitted the conduct complained of shall constitute a complete defense to any civil or criminal, or administrative action arising out of such conduct under the laws of this state. (3) A civil action under this section may not be commenced later than 2 years after the date upon which the claimant first has a reasonable opportunity to discover the violation.
History.s. 10, ch. 69-17; s. 3, ch. 78-376; s. 8, ch. 88-184; s. 8, ch. 89-269; s. 12, ch. 2000-369.
934.15 Situations in which law enforcement officer may order telephone line cut, rerouted, or diverted. (1) The supervising law enforcement officer at the scene of an incident where there is reasonable cause to believe: (a) That a person is holding one or more hostages, (b) That a person has barricaded herself or himself and taken a position of confinement to avoid apprehension, (c) That there is the probability that a subject about to be arrested will resist with the use of weapons, or (d) That a person has barricaded herself or himself and is armed and is threatening suicide, may order law enforcement or telephone company personnel to cut, reroute, or divert telephone lines for the purpose of preventing telephone communications between the suspect and any person other than a law enforcement officer or the law enforcement officers designee, if such cutting, rerouting, or diverting of telephone lines is technically feasible and can be performed without endangering the lives of telephone company or other utility personnel. (2) The good faith reliance by a telephone company on an oral or written order to cut, reroute, or divert telephone lines given by a supervising law enforcement officer under subsection (1) constitutes a complete defense to any civil, criminal, or administrative action arising out of such an order.
History.ss. 1, 2, ch. 87-357; s. 1585, ch. 97-102.
934.21 Unlawful access to stored communications; penalties. (1) Except as provided in subsection (3), whoever: (a) Intentionally accesses without authorization a facility through which an electronic communication service is provided, or (b) Intentionally exceeds an authorization to access such facility, and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (2). (2) The punishment for an offense under subsection (1) is as follows: (a) If the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, the person is: 1. In the case of a first offense under this subsection, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 934.41. 2. In the case of any subsequent offense under this subsection, guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41. (b) In any other case, the person is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
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(3) Subsection (1) does not apply with respect to conduct authorized: (a) By the person or entity providing a wire or electronic communications service; (b) By a user of a wire or electronic communications service with respect to a communication of or intended for that user; or (c) In s. 934.09, s. 934.23, or s. 934.24.
History.s. 9, ch. 88-184; s. 9, ch. 89-269.
934.215 Unlawful use of a two-way communications device. Any person who uses a two-way communications device, including, but not limited to, a portable two-way wireless communications device, to facilitate or further the commission of any felony offense commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.s. 1, ch. 2001-114.
934.22 Voluntary disclosure of customer communications or records. (1) Except as provided in subsection (2) or subsection (3): (a) A provider of electronic communication service to the public may not knowingly divulge to: 1. Any person or entity the contents of a communication while in electronic storage by that service; or 2. Any governmental entity a record or other information pertaining to a subscriber to or customer of such service. (b) A provider of remote computing service to the public may not knowingly divulge to: 1. Any person or entity the contents of any communication that is carried or maintained on that service: a. On behalf of a subscriber or customer of such service and received by means of electronic transmission from, or created by means of computer processing of communications received by means of electronic transmission from, a subscriber or customer of such remote computing service; and b. Solely for the purpose of providing storage or computer processing services to its subscriber or customer, if the provider is not authorized to access the contents of any such communication for purposes of providing any service other than storage or computer processing; or 2. Any governmental entity a record or other information pertaining to a subscriber to or customer of such service. (2) A provider described in subsection (1) may divulge the contents of a communication: (a) To an addressee or intended recipient of such communication or an agent of such addressee or intended recipient. (b) As otherwise authorized in s. 934.03(2)(a), s. 934.07, or s. 934.23. (c) With the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of a remote computing service. (d) To a person employed or authorized, or whose facilities are used, to forward such communication to its destination. (e) As may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service. (f) To a law enforcement agency, if: 1. The contents were inadvertently obtained by the service provider; 2. The contents appear to pertain to the commission of a crime; or 3. The provider reasonably believes an emergency involving immediate danger of death or serious physical injury to another person requires disclosure of the contents without delay. (3)(a) A provider described in subsection (1) may disclose a record or other information pertaining to a subscriber to or customer of such service: 1. As is otherwise authorized in s. 934.23.
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2. With the lawful consent of the customer or subscriber. 3. As is necessary incident to rendering service or protecting the rights or property of the provider of that service. 4. To a governmental entity if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information. 5. To any person other than a governmental entity. (b) Notwithstanding paragraph (a), a provider may not disclose the contents of communications specified in paragraph (1)(a) or paragraph (1)(b).
History.s. 9, ch. 88-184; s. 7, ch. 2002-72.
934.23 Required disclosure of customer communications or records. (1) An investigative or law enforcement officer may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for 180 days or less only pursuant to a warrant issued by the judge of a court of competent jurisdiction. As used in this section, the term a court of competent jurisdiction means a court that has jurisdiction over the investigation or that is otherwise authorized by law. An investigative or law enforcement officer may require the disclosure by a provider of electronic communication services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than 180 days by the means available under subsection (2). (2) An investigative or law enforcement officer may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this subsection is made applicable by subsection (3): (a) Without required notice to the subscriber or customer if the investigative or law enforcement officer obtains a warrant issued by the judge of a court of competent jurisdiction; or (b) With prior notice, or with delayed notice pursuant to s. 934.25, from the investigative or law enforcement officer to the subscriber or customer if the investigative or law enforcement officer: 1. Uses a subpoena; or 2. Obtains a court order for such disclosure under subsection (5). (3) Subsection (2) is applicable with respect to any electronic communication that is held or maintained on a remote computing service: (a) On behalf of a subscriber or customer of such service and received by means of electronic transmission from, or created by means of computer processing of communications received by means of electronic transmission from, a subscriber or customer of such service. (b) Solely for the purposes of providing storage or computer processing services to a subscriber or customer, if the provider is not authorized to access the contents of any such communication for purposes of providing any service other than storage or computer processing. (4)(a) An investigative or law enforcement officer may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber or customer of such service, not including the contents of a communication, only when the investigative or law enforcement officer: 1. Obtains a warrant issued by the judge of a court of competent jurisdiction; 2. Obtains a court order for such disclosure under subsection (5); 3. Has the consent of the subscriber or customer to such disclosure; or 4. Seeks information under paragraph (b). (b) A provider of electronic communication service or remote computing service shall disclose to an investigative or law enforcement officer the name; address; local and long-distance telephone connection
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records, or records of session times or durations; length of service, including the starting date of service; types of services used; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment, including any credit card or bank account number of a subscriber to or customer of such service when the governmental entity uses a subpoena or obtains such information in the manner specified in paragraph (a) for obtaining information under that paragraph. (c) An investigative or law enforcement officer who receives records or information under this subsection is not required to provide notice to a subscriber or customer. (5) A court order for disclosure under subsection (2), subsection (3), or subsection (4) shall issue only if the investigative or law enforcement officer offers specific and articulable facts showing that there are reasonable grounds to believe the contents of a wire or electronic communication or the records of other information sought are relevant and material to an ongoing criminal investigation. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. (6) No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, or certification under ss. 934.21-934.28. (7)(a) A provider of wire or electronic communication services or a remote computing service, upon the request of an investigative or law enforcement officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. (b) Records referred to in paragraph (a) shall be retained for a period of 90 days, which shall be extended for an additional 90 days upon a renewed request by an investigative or law enforcement officer. (8) A provider of electronic communication service, a remote computing service, or any other person who furnished assistance pursuant to this section shall be held harmless from any claim and civil liability resulting from the disclosure of information pursuant to this section and shall be reasonably compensated for reasonable expenses incurred in providing such assistance.
History.s. 9, ch. 88-184; s. 10, ch. 89-269; s. 13, ch. 2000-369; s. 8, ch. 2002-72; s. 2, ch. 2003-71.
934.24 Backup preservation; customer notification; challenges by customer. (1) An investigative or law enforcement officer acting under s. 934.23(2)(b) may include in the subpoena or court order upon which such action is based a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of such subpoena or court order, such service provider must create such backup copy as soon as practicable consistent with its regular business practices and shall confirm to the investigative or law enforcement officer that such backup copy has been made. Such backup copy must be created within 2 business days after receipt by the service provider of the subpoena or court order. (2) Notice to the subscriber or customer must be made by the investigative or law enforcement officer within 3 days after the receipt of such confirmation, unless such notice is delayed pursuant to s. 934.25(1). (3) The service provider may not destroy the backup copy until the later of: (a) The actual receipt by the requesting investigative or law enforcement officer of the information; or (b) The resolution of any proceeding, including appeals thereof, concerning the governments subpoena or court order. (4) The service provider shall release the backup copy to the requesting investigative or law enforcement officer no sooner than 14 days after the investigative or law enforcement officers notice to the subscriber or
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customer if such service provider: (a) Has not received notice from the subscriber or customer that the subscriber or customer has challenged the investigative or law enforcement officers request, and (b) Has not initiated proceedings to challenge the request of the investigative or law enforcement officer. (5) An investigative or law enforcement officer may seek to require the creation of a backup copy under subsection (1) if in the sole discretion of such officer there is reason to believe that notification under s. 934.23 of the existence of the subpoena or court order may result in destruction of or tampering with evidence. This determination is not subject to challenge by the subscriber or customer or the service provider. (6) Within 14 days after notice by the investigative or law enforcement officer to the subscriber or customer under subsection (2), the subscriber or customer may file a motion to quash the subpoena or vacate the court order seeking contents of electronic communications, with copies served upon the investigative or law enforcement officer and with written notice of such challenge to the service provider. A motion to vacate a court order must be filed in the court which issued the order. A motion to quash a subpoena must be filed in the circuit court in the circuit from which the subpoena issued. Such motion or application must contain an affidavit or sworn statement: (a) Stating that the applicant is a subscriber or customer of the service from which the contents of electronic communications maintained for her or him have been sought, and (b) Stating the applicants reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of ss. 934.21-934.28 in some other respect. (7) Except as otherwise obtained under paragraph (3)(a), service must be made under this section upon an investigative or law enforcement officer by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the subscriber or customer has received pursuant to ss. 934.21-934.28. For the purposes of this subsection, the term delivering shall be construed in accordance with the definition of delivery as provided in Rule 1.080, Florida Rules of Civil Procedure. (8) If the court finds that the customer has complied with subsections (6) and (7), the court shall order the investigative or law enforcement officers agency or employing entity to file a sworn response, which may be filed in camera if the investigative or law enforcement officers agency or employing entity includes in its response the reasons which make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the parties initial allegations and response, the court may conduct such additional proceedings as it deems appropriate. All such proceedings must be completed and the motion or application decided as soon as practicable after the filing of the investigative or law enforcement officers agencys or employing entitys response. (9)(a) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order such process enforced. (b) If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed. (10) A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal or petition or request for discretionary review may be taken therefrom by the customer.
History.s. 9, ch. 88-184; s. 1586, ch. 97-102.
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934.25 Delayed notice. (1) An investigative or law enforcement officer acting under s. 934.23(2) may: (a) Where a court order is sought, include in the application a request for an order delaying the notification required under s. 934.23(2) for a period not to exceed 90 days, which request the court shall grant if it determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in subsection (2). (b) Where a subpoena is obtained, delay the notification required under s. 934.23(2) for a period not to exceed 90 days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in subsection (2). (2) Any of the following acts constitute an adverse result for purposes of subsection (1): (a) Endangering the life or physical safety of an individual. (b) Fleeing from prosecution. (c) Destroying or tampering with evidence. (d) Intimidating potential witnesses. (e) Seriously jeopardizing an investigation or unduly delaying a trial. (3) The investigative or law enforcement officer shall maintain a true copy of a certification obtained under paragraph (1)(b). (4) Extensions of the delay of notification provided in s. 934.23(2) of up to 90 days each may be granted by the court upon application, or by certification by an investigative or law enforcement officer, but only in accordance with subsection (6). (5) Upon the expiration of the period of delay of notification under subsection (1) or subsection (4), the investigative or law enforcement officer must serve upon or deliver by registered or first-class mail to the subscriber or customer a copy of the process or request together with notice which: (a) States with reasonable specificity the nature of the law enforcement inquiry, and (b) Informs the subscriber or customer: 1. That information maintained for such subscriber or customer by the service provider named in the process or request was supplied to or requested by the investigative or law enforcement officer and the date on which such information was so supplied or requested. 2. That notification of such subscriber or customer was delayed. 3. What investigative or law enforcement officer or what court made the certification or determination pursuant to which that delay was made. 4. Which provision of ss. 934.21-934.28 allowed such delay. (6) An investigative or law enforcement officer acting under s. 934.23, when not required to notify the subscriber or customer under s. 934.23(2)(a), or to the extent that such notice may be delayed pursuant to subsection (1), may apply to a court for an order commanding a provider of electronic communication service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of such warrant, subpoena, or court order. The court shall enter such order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in any of the following: (a) Endangering the life or physical safety of an individual. (b) Fleeing from prosecution. (c) Destroying or tampering with evidence. (d) Intimidating potential witnesses. (e) Seriously jeopardizing an investigation or unduly delaying a trial. (7) As used in paragraph (1)(b), the term supervisory official means the person in charge of an
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investigating or law enforcement agencys or entitys headquarters or regional office; the state attorney of the circuit from which the subject subpoena has been issued; the statewide prosecutor; or an assistant state attorney or assistant statewide prosecutor specifically designated by the state attorney or statewide prosecutor to make such written certification. (8) As used in subsection (5), the term deliver shall be construed in accordance with the definition of delivery as provided in Rule 1.080, Florida Rules of Civil Procedure.
934.26 Cost reimbursement. (1) Except as otherwise provided in subsection (3), a governmental entity which obtains the contents of communications, records, or other information under s. 934.22, s. 934.23, or s. 934.24 shall pay to the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing such information. Such reimbursable costs include any costs incurred due to necessary disruption of normal operations of any electronic communication service or remote computing service in which such information may be stored. (2) The amount of the fee provided by subsection (1) shall be as mutually agreed upon by the governmental entity and the person or entity providing the information or, in the absence of agreement, shall be as determined by the court which issued the order for production of such information or the court before which a criminal prosecution relating to such information would be brought if no court order was issued for production of the information. (3) The requirement of subsection (1) does not apply with respect to records or other information maintained by a communications carrier that relate to telephone toll records and telephone listings obtained under s. 934.23. The court may, however, order a payment as described in subsection (1) if the court determines the information required is unusually voluminous in nature or otherwise causes an undue burden on the provider.
934.27 Civil action: relief; damages; defenses. (1) Except as provided in s. 934.23(5), any provider of electronic communication service, or subscriber or customer thereof, aggrieved by any violation of ss. 934.21-934.28 in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity which engaged in that violation such relief as is appropriate. (2) In a civil action under this section, appropriate relief includes: (a) Such preliminary and other equitable or declaratory relief as is appropriate. (b) Damages under subsection (3). (c) A reasonable attorneys fee and other litigation costs reasonably incurred. (3) The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a plaintiff entitled to recover be awarded less than $1,000. (4) A good faith reliance on any of the following is a complete defense to any civil or criminal action brought under ss. 934.21-934.28: (a) A court warrant or order, a subpoena, or a statutory authorization, including, but not limited to, a request of an investigative or law enforcement officer to preserve records or other evidence, as provided in s. 934.23(7). (b) A request of an investigative or law enforcement officer under s. 934.09(7). (c) A good faith determination that s. 934.03(3) permitted the conduct complained of.
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(5) A civil action under this section may not be commenced later than 2 years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.
934.28 Exclusivity of remedies and sanctions. The remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections.
934.31 General prohibition on pen register and trap and trace device use; exception. (1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under s. 934.33. (2) The prohibition of subsection (1) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service: (a) Which relates to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider or to the protection of users of that service from abuse of service or unlawful use of service; (b) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider thereof, another provider furnishing service toward the completion of the wire communication, or a user of the service, from fraudulent, unlawful, or abusive use of service; or (c) Where the consent of the user of the service has been obtained. (3) An investigative or law enforcement officer authorized to install and use a pen register or trap and trace device under ss. 934.31-934.34 shall use technology reasonably available to him or her which restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information used in processing and transmitting wire or electronic communications so that the contents of any wire or electronic communications are not recorded or decoded. (4)(a) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer specially designated by the Governor, the Attorney General, the statewide prosecutor, or a state attorney acting pursuant to this chapter, who reasonably determines that: 1. An emergency exists which: a. Involves immediate danger of death or serious physical injury to any person or the danger of escape of a prisoner; and b. Requires the installation and use of a pen register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained; and 2. There are grounds upon which an order could be entered under this chapter to authorize such installation and use, may have installed and use a pen register or trap and trace device if, within 48 hours after the installation has occurred or begins to occur, an order approving the installation or use is issued in accordance with s. 934.33. (b) In the absence of an authorizing order, such use shall immediately terminate when the information sought is obtained, when the application for the order is denied, or when 48 hours have lapsed since the installation of the pen register or trap and trace device, whichever is earlier. (c) The knowing installation or use by any investigative or law enforcement officer of a pen register or trap and trace device pursuant to paragraph (a) without application for the authorizing order within 48 hours after the installation constitutes a violation of s. 934.31. (d) A provider of wire or electronic service, landlord, custodian, or other person who has furnished facilities or technical assistance pursuant to this subsection shall be held harmless from any claims and civil liability resulting from the disclosure of information pursuant to this subsection and shall be reasonably compensated for reasonable expenses incurred in providing such facilities and assistance.
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(5) Whoever knowingly violates subsection (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 934.41.
934.32 Application for an order for a pen register or a trap and trace device. (1)(a) The Governor, the Attorney General, a state attorney, the statewide prosecutor, or a designated assistant state attorney or assistant statewide prosecutor may make application for an order or an extension of an order under s. 934.33 authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter, in writing under oath or equivalent affirmation, to the judge of a court of competent jurisdiction. (b) An investigative or law enforcement officer may make application for an order or an extension of an order under s. 934.33 authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter, in writing under oath or equivalent affirmation, to the judge of a court of competent jurisdiction. (2) An application under subsection (1) must include: (a) The identity of the applicant specified in the section and the identity of the law enforcement agency conducting the investigation, and (b) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the investigating agency.
History.s. 10, ch. 88-184.
934.33 Issuance of an order for a pen register or a trap and trace device. (1) Upon application made under s. 934.32, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the applicant specified in s. 934.32(1) has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. Whenever such order is served on any person or entity not specifically named in the order, upon request of such person or entity, the person specified in s. 934.32 who has requested and is serving such order shall provide written or electronic certification that such order applies to the person or entity being served. (2) An order issued under this section: (a) Must specify the following: 1. The identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied. 2. The identity, if known, of the person who is the subject of the criminal investigation. 3. The attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of an order authorizing installation and use of a trap and trace device, the geographic limits of the order. 4. A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates. (b) Must direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under s. 934.34. (3)(a) An order issued under this section may not authorize the installation and use of a pen register or a trap and trace device for more than 60 days. (b) Extensions of such an order may be granted but only upon an application for an order under s. 934.32 and upon the judicial finding required by subsection (1). The period of extension may not exceed 60 days.
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(4) An order authorizing or approving the installation and use of a pen register or a trap and trace device must direct that: (a) The order be sealed until otherwise ordered by the court, and (b) The person owning or leasing the line or other facility to which the pen register or a trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person except as otherwise ordered by the court. (5) A court may not require greater specificity or additional information beyond that which is required under s. 934.32 and this section as a requisite for issuing an order as provided in this section. (6)(a) If an investigative or law enforcement agency implementing an ex parte order under this section seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public, the agency must ensure that a record is maintained which identifies: 1. Each officer who installed the device and each officer who accessed the device to obtain information from the network; 2. The date and time the device was installed; the date and time the device was uninstalled; and the date, time, and duration of each occasion the device was accessed to obtain information; 3. The configuration of the device at the time of its installation and any subsequent modification of that configuration; and 4. Any information that was collected by the device. (b) To the extent that the pen register or trap and trace device can be set automatically to record electronically the information required in paragraph (a), the record shall be maintained electronically throughout the installation and use of the device. (7) The record maintained under subsection (6) shall be provided ex parte and under seal to the court that entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order, including any extension of the order.
934.34 Assistance in installation and use of a pen register or a trap and trace device. (1) Upon the request of the applicant specified in s. 934.32(1), a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish such investigative or law enforcement officer or other applicant forthwith all information, facilities, and technical assistance necessary to accomplish the installation of a pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, or such other assistance to support the investigation, if such assistance is directed by a court order as provided in s. 934.33(2)(b). (2) Upon the request of the applicant specified in s. 934.32(1), a provider of a wire or electronic communication service, landlord, custodian, or other person shall install a trap and trace device forthwith on the appropriate line or other facility and shall furnish such investigative or law enforcement officer or other applicant all additional information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place if such installation and assistance is directed by a court order as provided in s. 934.33(2)(b). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished, pursuant to s. 934.31(4) or s. 934.33(2)(b), to an officer of the law enforcement agency designated in the court order at reasonable intervals during regular business hours for the duration of the order. The obligation of a provider of electronic communication service under such an order or under such emergency pen register or trap and trace device installation may include,
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but is not limited to, conducting an in-progress trace, or providing other assistance to support the investigation as may be specified in the order. (3) A provider of a wire or electronic communication service, landlord, custodian, or other person who furnished facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance. (4) No cause of action shall lie in any court against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under ss. 934.31-934.34. (5) A good faith reliance on a court order or a statutory authorization is a complete defense against any civil or criminal action brought under ss. 934.31-934.34.
934.41 Alternative penalty. (1) In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of this chapter, through which she or he derived pecuniary value, or by which she or he caused property damage or other loss, may be sentenced to pay a fine that does not exceed three times the gross value gained or three times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. (2) The court shall hold a hearing to determine the amount of the fine authorized by subsection (1). (3) For the purposes of subsection (1), pecuniary value means: (a) Anything of value in the form of money, a negotiable instrument, or a commercial interest or anything else the primary significance of which is economic advantage; or (b) Any other property or service that has a value in excess of $100.
History.s. 15, ch. 89-269; s. 1587, ch. 97-102.
934.42 Mobile tracking device authorization. (1) An investigative or law enforcement officer may make application to a judge of competent jurisdiction for an order authorizing or approving the installation and use of a mobile tracking device. (2) An application under subsection (1) of this section must include: (a) A statement of the identity of the applicant and the identity of the law enforcement agency conducting the investigation. (b) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the investigating agency. (c) A statement of the offense to which the information likely to be obtained relates. (d) A statement whether it may be necessary to use and monitor the mobile tracking device outside the jurisdiction of the court from which authorization is being sought. (3) Upon application made as provided under subsection (2), the court, if it finds that the certification and statements required by subsection (2) have been made in the application, shall enter an ex parte order authorizing the installation and use of a mobile tracking device. Such order may authorize the use of the device within the jurisdiction of the court and outside that jurisdiction but within the State of Florida if the device is installed within the jurisdiction of the court. (4) A court may not require greater specificity or additional information beyond that which is required by this section as a requisite for issuing an order. (5) The standards established by the United States Supreme Court for the installation and monitoring of mobile tracking devices shall apply to the installation and use of any device as authorized by this section. (6) As used in this section, a tracking device means an electronic or mechanical device which permits the tracking of the movement of a person or object.
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History.s. 16, ch. 89-269.
934.43 Criminal disclosure of subpoena, order, or authorization. (1) Any person having knowledge of a warrant, subpoena, application, order, or other authorization which has been issued or obtained pursuant to the action of an investigative or law enforcement officer as authorized by this chapter, who: (a) With intent to obstruct, impede, or prevent an investigation, criminal prosecution, or civil, regulatory, or forfeiture action on behalf of the State of Florida or a political subdivision thereof; or (b) With intent to obstruct, impede, or prevent the obtaining by an investigative or law enforcement officer of the information or materials sought pursuant to such warrant, subpoena, application, order, or authorization gives notice or attempts to give notice of the investigation, criminal prosecution, or civil, regulatory, or forfeiture action, warrant, subpoena, application, order, or other authorization to any person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41. (2) This section does not prevent disclosure of the existence of the warrant, subpoena, application, order, or other authorization as otherwise provided under this chapter.
History.s. 17, ch. 89-269.
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Constitutional and Statutory Provisions Involved, Petition No. 12-7747

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Constitutional and Statutory Provisions Involved, Petition No. 12-7747

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No: 12-7747 IN THE SUPREME COURT OF THE UNITED STATES ____________________ NEIL J. GILLESPIE, ET AL - PETITIONERS VS.

Provisions of the Constitution of the United States Involved

Statutes of the United States Involved 2.

UNITED STATES CONSTITUTIONAL PROVISIONS INVOLVED

State of Florida Provisions Involved 1.

Florida Rules of Court Involved

Florida Statutes Involved

Provisions of the Constitution of the State of Florida Involved

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The 2012 Florida Statutes

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History.s. 1, ch. 72-35; s. 105, ch. 2003-1.

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excluding contributions in kind.

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The 2012 Florida Statutes

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History.s. 3, ch. 95-158; s. 2, ch. 96-322; s. 1, ch. 2008-160.

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The 2012 Florida Statutes

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Statutes & Constitution :View Statutes : Online Sunshine

The 2012 Florida Statutes

Copyright 1995-2012 The Florida Legislature Privacy Statement Contact Us

Statutes & Constitution :View Statutes : Online Sunshine

The 2012 Florida Statutes

Copyright 1995-2012 The Florida Legislature Privacy Statement Contact Us

Statutes & Constitution :View Statutes : Online Sunshine

The 2012 Florida Statutes

Statutes & Constitution :View Statutes : Online Sunshine

Copyright 1995-2012 The Florida Legislature Privacy Statement Contact Us

Statutes & Constitution :View Statutes : Online Sunshine

The 2012 Florida Statutes

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Copyright 1995-2012 The Florida Legislature Privacy Statement Contact Us

Statutes & Constitution :View Statutes : Online Sunshine

The 2012 Florida Statutes

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Copyright 1995-2012 The Florida Legislature Privacy Statement Contact Us

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The 2012 Florida Statutes

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instead of the word conducted.

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The 2012 Florida Statutes

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