Florida/Georgia Personal Injury & Workers Compensation

...*39 From the above statutory provisions it appears that the trial court correctly interpreted Section 136.05, Florida Statutes (1975), to be satisfied by the board keeping the books and accounts through its clerk, the clerk of the circuit court. In regard to investment of county funds the court below held that Section 28.33, Florida Statutes (1975), requiring the clerk of the circuit court to invest funds in interest bearing certificates or direct obligations of the United States, "applies to all funds in the clerk's control, whether they come from fees or...

...te the investment place of surplus funds and the clerk is required to carry out the board's directive. In the alternative, where the board does not so designate the investment of surplus funds, these funds are to be invested by the clerk pursuant to Section 28.33, Florida Statutes (1975)....

...It is so ordered. BOYD, OVERTON and SUNDBERG, JJ., concur. OVERTON, J., concurs specially with an opinion. ADKINS, J., concurs in result only. ALDERMAN, J., dissents. OVERTON, Justice, concurring specially. I concur. This Court's recent construction of section 28.33, Florida Statutes (1977), in Beckwith v....

...further stated that "interest earned on the clerk of the circuit court's registry account is not private property." This holding precludes any disposition of these earned interest funds to the proper prevailing party. Because of our construction of section 28.33, I must agree that section 718.401(4), which mandates the deposit of rents into the registry of the courts during litigation concerning a condominium lease, does in fact constitute an impairment of rights guaranteed under the contract clause and due process provisions of the Florida and United States Constitutions....

...the lease when there is litigation concerning the lease makes this depository provision of the statute invalid. It should be noted that the clerk of the circuit court receives a fee for his services apart from the interest earned on deposited funds. § 28.33, Fla....

...fore the State's postjudgment intervention. [2] The unconstitutional statute, in relevant part, provided: "All interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys... ." § 28.33, Fla....

...Rehearing Denied October 4, 1979. Harry A. Stewart, Sanford, for appellants. Harvey M. Alper and William H. Wack, of Law Offices of Alper & Wack, Altamonte Springs, for appellees and Harvey M. Alper as receiver, in pro per. PER CURIAM. The constitutionality of section 28.33, Florida Statutes (1977), which provides that interest accruing on funds in the registry of the court shall be deemed income of the Office of the Clerk of the Circuit Court, is before the court....

...would accrue to the court clerk's office. The clerk followed the court's order. The receiver filed a motion seeking to obtain the interest earned on the money in the sum of $91,474.71. In an order granting the receiver's motion, the trial court held section 28.33, Florida Statutes (1977), unconstitutional to the extent it applied to these "private" monies....

...property of the person ultimately receiving the principal. This proposition rests on the underlying premise that the principal remains private when deposited in the clerk's registry. Neither the premise nor the conclusion withstands close analysis. Section 28.33 does two things: (1) it authorizes the clerk to invest money in the registry of the court in order to earn interest; and (2) it dictates the disposition of the interest earned....

...*953 The receiver states that the interest retained by the clerk of court is either a fee or a tax. It is neither. The statute permits the state to retain only the amount representing interest earned on funds invested by the clerk, a function of the clerk expressly created by the statute. Interest accrues only because of section 28.33....

...Without such authority, the assertion that the retention of the interest by the county is an unconstitutional interference with the judicial process has merit. The clerk receives a fee separate from the interest for acting as a depository, so the interest cannot be considered as a service charge. Section 28.33, Florida Statutes (1977), concerns the investment of all county funds held by the clerk, not just funds in the court registry....

...unds as directory, allowing the trial judge to affirmatively direct the disposition of interest earned. If there were no such affirmative judicial action, the interest earned would be disposed of in accordance with the statutory provision. NOTES [1] § 28.33, Fla....

both in specific accordance with the terms of Section 28-33 of the Code. Reasonable evidence of equivalent

...o the registry of the court pending resolution of the dispute and prevented the lessor from taking action to dispossess or otherwise penalize defaulting tenant/class members provided rent payments were timely paid into the registry. Another statute, Section 28.33, Florida Statutes (1977), authorized the clerk of the circuit court to invest funds deposited into the registry of the courts and provided that interest earned in this fashion would be deemed income of the office of the clerk of the circuit court....

...aking decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing the doctrine of nonretroactivity." Id. at 199, 93 S.Ct. at 1468. In the instant case, the litigants, particularly appellees, relied upon section 28.33 without question. Thus, the unconstitutionality of the statute was an issue of first impression (in Webb's Fabulous Pharmacies ) whose resolution was not clearly foreshadowed. More specifically, the clerk of the circuit court in this case, pursuant to section 28.33, invested the funds deposited by litigants into the court registry and, in reliance on section 28.33, retained the interest earned, using it for the operation of his office and turning over any balance to the Board of County Commissioners....

...In determining whether nonretroactive application of Webb's will undermine the constitutional interest at stake, it is important to consider the exact nature of that constitutional interest in relation to the present case. First, appellants apparently never questioned the constitutionality of section 28.33 either at the time the funds were deposited in the court registry, during the pendency of the claim, or when they were ultimately determined to be the owners of the principal deposited....

...he amount to which they were entitled both before and after operation of the statute. Concluding, we point out that neither the Florida Supreme Court nor the Supreme Court of the United States spoke to the issue of whether the unconstitutionality of section 28.33 was to be given retroactive effect....

...446, 66 L.Ed.2d 358 (1980) the funds deposited in the registry of the court did not become public funds, and that earnings thereon were an incident of the ownership of the funds), review denied mem., 531 So.2d 168 (Fla.1988), cert. denied mem., 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989). Moreover, while section 28.33, Florida Statutes (1995) states, in pertinent part, that "[m]oneys deposited in the registry of the court shall be deposited in interest-bearing certificates at the discretion of the clerk,..." the taxpayer also has the right to file a...

...Appeal from the United States District Court for the Southern District of Florida. Before CLARK, EDMONDSON and KEITH * , Circuit Judges. EDMONDSON, Circuit Judge: 1 This case deals with the retroactivity of a United States Supreme Court decision invalidating a state law. According to Fla.Stat.Ann. sec. 28.33 (West 1974), all interest earned on funds deposited in court registries was deemed to be income of the office of the clerk of each court....

...alm Beach County, Florida. Allegedly, plaintiffs deposited funds with the clerk of the court of that county, pursuant to certain Florida statutes. 1 The clerk then deposited those funds in an interest-bearing account. According to Fla.Stat.Ann. sec. 28.33 (West 1974), the interest was public income. 2 4 In 1981, the United States Supreme Court held that Fla.Stat.Ann. sec. 28.33 was an unconstitutional taking of private property....

...Moreover, when section 74.051 became effective in 1965, at least one state's highest court had already found a similar statute to violate the federal Constitution. McMillan v. Robeson County, 262 N.C. 413 , 137 S.E.2d 105 (1964). In 1972, one year before the effective date of section 28.33, another state supreme court struck down another such statute as contrary to the federal Constitution....

...481, 496 , 88 S.Ct. 2224, 2233 , 20 L.Ed.2d 1231 (1968). 12 The second inquiry is whether the purpose of the Beckwith rule will be furthered or retarded by prospective application of the holding. The defendants argue that because the offensive language of section 28.33 has been deleted from the statute, the purpose of Beckwith has been accomplished....

...consistent with this opinion. * Honorable Damon J. Keith, U.S. Circuit Judge for the Sixth Circuit, sitting by designation 1 It is not clear from the pleadings in this case exactly which Florida statutes were involved in those earlier proceedings 2 Section 28.33 provided: "All interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys and shall be deposited in the same accounts as are other fees and commissions of the clerk's office." Fla.Stat.Ann. sec. 28.33 (West 1974) 3 Section 28.33 was amended to read, "Except for interest earned on moneys deposited in the registry of the court, all interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys and shall be deposited in the same account as are other fees and commissions of the clerk's office." 1982 Fla.Laws c. 82-117, sec. 1, codified at Fla.Stat.Ann. sec. 28.33 (West Supp.1983) 4 In Bonner v....

provided in section 218.415, Florida Statutes. See § 28.33, Fla. Stat. (2017). In 1995, pursuant to section

...(b) Net interest received on such funds shall accrue to the credit of the court and shall be returned quarterly by the clerk of the court to the general fund of the county." Although this section was repealed in 1973, 1 the legislation repealing it simultaneously created section 28.33 , Florida Statutes, relating to the investment of funds by the clerk of the circuit court. Section 28.33 , Florida Statutes, directs the clerk to invest "any funds in designated depository banks in interest-bearing certificates or in any direct obligations of the United States in compliance with federal laws relating to receipt of and withdrawal of deposits. . . ." Thus, it would appear that the creation of section 28.33 , Florida Statutes, obviated the need for section 43.17, Florida Statutes, and now serves as the direction for clerks to deposit funds that come into their possession....

SCHEB, Acting Chief Judge. The trial court denied the Greco family’s motion seeking return of certain funds retained by the clerk of the court pursuant to sections 28.24(13) and 28.33, Florida Stat *507 utes (1985)....

...Charges [[Image here]] (13) For receiving money into the registry of the court: (a)l. First $500, percent.2 2. Each subsequent $100, percent.1 Pursuant to this statutory directive, the clerk retained $102,910 from the funds placed in the registry. Section 28.33 states in pertinent part: The clerk may invest monies deposited in the registry of the court and shall retain as income of the office of the clerk and as a reasonable investment management fee 10 percent of the interest accruing on thos...

...the procedures involved in handling the funds deposited in the registry of the court. After argument of counsel, the trial court denied the Greco family’s motion, and this appeal ensued. The Greco family members contend that sections 28.24(13) and 28.33 are unconstitutional....

...nd any reasonable doubt. State v. Kinner, 398 So.2d 1360 (Fla.1981). People’s Bank v. State, Dept. of Banking & Finance, 395 So.2d 521 (Fla. 1981). We do not find that the Greco family demonstrated the invalidity of either section 28.24(13) or section 28.33. The Greco family members concede that normally the assessments required by sections 28.24(13) and 28.33 are unobjectionable....

...n the present case was reasonably related to the costs of the court. Thus, we find that the amount charged did not constitute a taking of the Greco family’s property in violation of the federal or state constitution. As to the constitutionality of section 28.33, the Greco family places reliance on Webb’s Fabulous Pharmacies, which we think is instructive on this point but not controlling. There the United States Supreme Court declared section 28.33, Florida Statutes (1977), unconstitutional. The 1977 version of section 28.33 provided that “All interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys — ” Webb’s Fabulous Pharmacies held that private funds, once deposited, did not become public funds....

interest earned from investment of surplus funds. Section 28.33 provides in pertinent part: Except for

...d of County Commissioners. We reverse. At issue in this case is whether the Clerk of the Court is statutorily authorized to claim as income interest earned on funds that the Clerk, as custodian of county funds, has invested on the county’s behalf. Section 28.33, Florida Statutes (2007), states: The clerk of the circuit court in each county shall invest county funds in excess of those required to meet expenses as provided in s....

...ruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys and shall be deposited in the same account as the other fees and commissions of the clerk’s office. *636 The plain language of section 28.33 provides that the interest earned on money-invested by the Clerk “shall be deemed income of the office of the clerk” and “shall be deposited in the same account as are other fees and commissions of the clerk’s office.” Id....

...has no authority to use that money without the Board’s approval. The County cites no statutory or other authority that convinces us that the statute means anything other than what it plainly says, which is that the interest is income to the Clerk. Section 28.33 does not impose any restrictions on how the Clerk may use this income, and again, the County has not directed our attention to any statutory or other authority that does. In fact, the County at least implicitly acknowledges that section 28.33 means what it says because its arguments in defense of the trial court’s construction of that provision consist largely of attacks on its validity....

...When the language of the statute is clear and unambiguous and conveys a definite meaning, there is no need to resort to the rules of statutory construction; the statute must be given its plain and obvious meaning. M.W. v. Davis, 756 So.2d 90, 101 (Fla.2000). Section 28.33 is such a clear and unambiguous statute....

and for Seminole County, Florida, and holding section 28.33, Florida Statutes (1977), constitutional. Beckwith

...From time to time, the County has surplus funds, which are funds not immediately required to meet its current expenses. See § 218.403(8), Fla. Stat. (2017). In his capacity as custodian of county funds, the Clerk is required to invest the county's surplus funds as provided in section 218.415, Florida Statutes. See § 28.33, Fla....

...time to time, invest and reinvest any surplus public funds in its control or possession ...." For the next thirty years, the boards of county commissioners had sole authority to invest a county's surplus funds. Then, in 1973, the Legislature enacted section 28.33, Florida Statutes (1973), which also gave the clerk of the court statutory authority to invest a county's surplus funds, providing, in relevant part: The clerk of the circuit court in each county shall make an estimate of his projected...

...n compliance with federal laws relating to receipt of and withdrawal of deposits. See ch. 73-282, § 1, Laws of Fla. Due to the apparent conflict between these two statutes, the supreme court was called on to interpret the interplay between sections 28.33 and 125.31(1) to determine whether the board of county commissioners or the clerk of the circuit court controlled the investment of county surplus funds. In Alachua County v. Powers , 351 So.2d 32 (Fla. 1977), the court held that pursuant to section 28.33, the clerk of circuit court had investment discretion of county surplus funds except for the investment of those surplus funds directed by resolution of the board of county commissioners under section 125.31 : [T]here appears to be no c...

...te the investment place of surplus funds and the clerk is required to carry out the board's directive. In the alternative, where the board does not so designate the investment of surplus funds, these funds are to be invested by the clerk pursuant to Section 28.33, Florida Statutes (1975)....

...nstitution states that "[t]he powers [and] duties ... of state and county officers shall be fixed by law." Thus, we examine the relevant statutes to determine what investment discretion the Clerk has when acting as custodian of county surplus funds. Section 28.33, Florida Statutes (2017), provides that "[t]he clerk of the circuit court in each county shall invest county funds in excess of those required to meet expenses as provided in s....

...duties of the Clerk to the Board. Under the 2017 Investment Policy, the Clerk continues to be the custodian of the County's funds, as provided under the Florida Constitution, and continues to "invest" those funds as provided in sections 218.415 and 28.33....

or accounts such funds may be invested in. Section 28.33 requires the investment of court registry funds

...82-117, LAWS OF FLORIDA? (2) IS THE CLERK OF THE CIRCUIT COURT AUTHORIZED TO INVEST WITNESS AND JURY FEES PAID TO THE CLERK PURSUANT TO CH. 40 , F.S., AND TO COLLECT THE INTEREST EARNED THEREON AS INCOME TO THE OFFICE OF THE CLERK? (3) IS THE CLERK OF THE CIRCUIT COURT AUTHORIZED PURSUANT TO s 28.33 TO INVEST FUNDS DEPOSITED WITH THE CLERK UNDER THE MECHANIC'S LIEN LAW FOR THE PURPOSE OF TRANSFERRING A LIEN FROM REAL PROPERTY TO THE FUND AND TO COLLECT A MANAGEMENT FEE THEREON? QUESTION ONE Section 28.24 , F.S....

...ing the quarterly fiscal period, which endorsement shall be countersigned by the Governor, and shall transmit that amount by state warrant to the clerk making such requisition. You inquire as to whether the clerk may invest these funds pursuant to s 28.33 , F.S., and collect the interest earned thereon as income of his office. Section 28.33 , F.S....

...elating to the receipt of and withdrawal of deposits. The statute, however, relates to the investment of county funds (except to those moneys deposited in the registry of the court by persons or entities other than the county). See, e.g., title to s 28.33 — Investment of county funds....

...of the quarterly fiscal period, to render a full statement of his accounts for moneys received and disbursed by him under Ch. 40 and to refund any balance to the Comptroller. Such funds do not appear to be "county funds" and thus the provisions of s 28.33 , F.S....

...To the extent that such moneys may become refundable to the state, they may fall within the purview of s 219.075 , F.S. However, under the provisions of that statute, any investment earnings on such moneys pending refund to the state are required to be credited and paid to the state. Accordingly, I am of the opinion that s 28.33 , F.S. (1982 Supp.), does not authorize the clerk of the circuit court to invest the witness and jurors fees paid to the clerk pursuant to Ch. 40 , F.S. QUESTION THREE Your third question concerns the authority of the clerk of the circuit court under s 28.33 , F.S....

...that the transferred lien has been satisfied of record, the clerk shall return said security upon the request of the person depositing or filing the same, or the insurer. You inquire as to whether the clerk may invest such funds pursuant to s *3222 28.33 and collect a management fee thereon. Section 28.33 , F.S....

...investing such moneys and shall be deposited in the same accounts as are other fees and commissions of the clerk's office." In Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), the United States Supreme Court held that portion of s 28.33 stating that interest earned on the investment of moneys deposited in the registry of the court shall be deemed to be income of the office of the clerk, unconstitutional as it applied to private moneys....

...ces it renders. On remand of this issue back to the Florida Supreme Court, the Florida Supreme Court in Beckwith v. Webb's Fabulous Pharmacies, Inc., 394 So.2d 1009 (Fla. 1981), held that "[w]e cannot excise the constitutionally infirm portion of [s 28.33 ] while leaving intact the portion that provides `moneys deposited in the registry of the court shall be deposited in interest-bearing certificates at the discretion of the clerk, subject to the above guidelines,' without doing violence to the...

...court is not authorized to collect the management fee in question. Nevertheless, in view of the holdings in the aforecited decisions of the United States Supreme Court and the Florida Supreme Court, I feel compelled to note that the provisions of s 28.33 relating to the investment of private funds in the court registry by the clerk and the taking of a portion of the interest earned on the investment of such deposited funds in the guise of an investment management fee may well fall within the pr...

...erwise, 1) The clerk of the circuit court is required to collect a service charge for receiving money into the registry of the court pursuant to s 28.23(13) on all funds deposited into the registry of the court under s 74.051 , F.S. (1982 Supp.); 2) Section 28.33 , F.S....

...the state are required to be credited and paid to the state; and 3) Pursuant to s 28.24 , F.S. (1982 Supp.), the clerk of the circuit court is entitled to collect a service charge for receiving money into the registry of the court and pursuant to s 28.33 , F.S....

...In light of the United States Supreme Court's decision in Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), and the Florida Supreme Court's decision on remand, Beckwith v. Webb's Fabulous Pharmacies, Inc., 394 So.2d 1009 (Fla. 1981), the provisions of s 28.33 relating to the investment of private funds in the registry of the court by the clerk and the taking of a portion of the interest earned on such investments in the guise of an investment management fee may well fall within the proscription of W...

Lockwood involved the constitutionality of section 28.33, Florida Statutes (1977) which authorized the

EDMONDSON, Circuit Judge: This case deals with the retroactivity of a United States Supreme Court decision invalidating a state law. According to Fla. StatAnn. sec. 28.33 (West 1974), all interest earned on funds deposited in court registries was deemed to be income of the office of the clerk of each court....

...alm Beach County, Florida. Allegedly, plaintiffs deposited funds with the clerk of the court of that county, pursuant to certain Florida statutes. 1 The clerk then deposited those funds in an interest-bearing account. According to Fla.Stat.Ann. sec. 28.33 (West 1974), the interest was public income. 2 In 1981, the United States Supreme Court held that Fla.Stat.Ann. sec. 28.33 was an unconstitutional taking of private property....

...Moreover, when section 74.051 became effective in 1965, at least one state’s highest court had already found a similar statute to violate the federal Constitution. McMillan v. Robeson County, 262 N.C. 413 , 137 S.E.2d 105 (1964). In 1972, one year before the effective date of section 28.33, another state supreme court struck down another such statute as contrary to the federal Constitution....

...481, 496 , 88 S.Ct. 2224, 2233 , 20 L.Ed.2d 1231 (1968). The second inquiry is whether the purpose of the Beckwith rule will be furthered or retarded by prospective application of the holding. The defendants argue that because the offensive language of section 28.33 has been deleted from the statute, the purpose of Beckwith has been accomplished....

...ion of Beckwith would place, in fact, on Florida local governments and for other proceedings consistent with this opinion. . It is not clear from the pleadings in this case exactly which Florida statutes were involved in those earlier proceedings. . Section 28.33 provided: "All interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys and shall be deposited in the same accounts as are other fees and commissions of the clerk’s office.” Fla.Stat.Ann. sec. 28.33 (West 1974). .Section 28.33 was amended to read, "Except for interest earned on moneys deposited in the registry of the court, all interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court investing such moneys...

fees and commissions of the clerk's office." Section 28.33. (An exception to the requirement of s. 28.33

INVESTMENTS AS INCOME OF THE OFFICE OF THE CLERK? Section 28.33, F.S., provides for the investment of county