HomeMy WebLinkAbout0334 _ _ . . . _ _ .~ii,:.~ _ ~ -
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- United States Supreme Court, the statutes are constitutionally
deficient in the followinq respects:
l. Section 77.031, Flori.da Statutes (1975). allows
a writ to issue without judicial supervision.
2. The writ may issue on an unsworn complaint by
a plaintiff, his agent. or attorney and the applicant need
allege no facts entitling the plaintiff to garnishment.
3. The statute does not require an immediate post-
seizure hearing; it simply keeps the court open at any time
to hear dissolution motions. In Phi2lips v. Guin & Hunt, Inc., _
Case No. 49,358, opinion filed March 31, 1977, we stated:
f
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We read North Geor ia Finishin , supra, and
Mitchell, supra, to require a earing either ~
be ore the alleged taking or pra~nptly there-
after. In Uni ue Caterers v. Rnd 's Fana Co.,
~ supra, we foun C apter 6 constitut onal y
deficient because it did not require an
' immedi~te.post-seizure hearing. Rather, it
simply kept the court open at any time to
hear motions for dissolution. . . .
We also stated: ~
[Ijt is constitutionally i.mperative that a writ
issue only after an impartial factual determina-
tion is made concerninq the existence of the
essential elements necessary for issuance of the
writ. Consequently, a writ must be issued by a
judicial officer based upon a prima facie showing
rather than pro forma by the clerk of court,
unless the initial pleadinq is made under oath
to a clerk who makes an independent factual ~
determi.nation that the requirements of the
statute have been complied with. Only then can
the individual have his use and enjoyment of property
protected fraa arbitrary encroachment. ~
(footnote omitted)
For the reasons stated herein, the order of the
Circuit Court is reversed. Sections 77.031, 77.44, 77.06,
and 77.07, Florida Statutes (1975), insofar as they pertain to
prejudgment garnishment, are declared unconstitutional and
,
the writ of garnistunent dissolved. The cause is remanded to
the iJineteenth Judicial Circuit Court for proceedings consistent
herewith.
:
F
F It is so ordered.
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~ OVERTON, C.J., BOYD, ENGyAND, SUNDBERG and KARL, JJ., Concur
~ ADKINS, J., Dissents
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