Florida Senate - 2008 CS for SB 2152

By the Committees on Criminal Justice; Criminal Justice

591-06404A-08 20082152c1

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A bill to be entitled

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An act relating to criminal justice; providing legislative

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intent; requiring state agencies and regulatory boards to

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submit to legislative officers and committees a report

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that states current restrictions on the employment of ex-

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offenders and possible alternatives that are compatible

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with protecting the public safety; requiring that such a

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report be submitted biennially; amending s. 112.011, F.S.;

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providing that a person may not be disqualified from

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receiving a license, permit, or certificate or from

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obtaining public employment on the grounds that the

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person's civil rights have not been restored; providing

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that a person is not required to secure the restoration of

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his or her civil rights or prove that his or her civil

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rights have been restored in order to receive a license,

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permit, or certificate or to obtain public employment;

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amending s. 760.10, F.S.; prohibiting an employer from

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requesting, making, or keeping certain criminal history

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records; prohibiting the criminal prosecution for perjury

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in certain circumstances; amending s. 943.0581, F.S.;

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authorizing the arresting agency or the agency where the

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warrant was issued to request an administrative

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expunction; amending s. 943.0585, F.S.; requiring the

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clerk of the court to place information about the

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availability of criminal history sealing and expunction on

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the court's Internet website and provide a link to the

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Department of Law Enforcement's website related to such

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information; clarifying under what circumstances a person

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may legally deny an expunged criminal history record;

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authorizing disclosure of the contents of an expunged

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record upon receipt of a written, notarized request from

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the record subject; amending s. 943.059, F.S.; clarifying

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under what circumstances a person may legally deny a

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sealed criminal history record; authorizing a person to

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petition the court to seek a second criminal history

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record sealing under certain circumstances; requiring the

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Office of Program Policy Analysis and Government

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Accountability to conduct a study; specifying the research

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questions for the study; requiring a report to be

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submitted to the Legislature; providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1. Restrictions on the employment of ex-offenders;

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legislative intent; state agency reporting requirements.--

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     (1) The Legislature declares that it is the policy of this

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state to provide to prospective employees a clear statement of

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which crimes would disqualify ex-offenders from which

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occupations. It is the intent of the Legislature to make

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opportunities for employment available to ex-offenders so that

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they will be less likely to revert to criminal behavior, insofar

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as the employment of such persons does not detract from the

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safety of the public. The Legislature further declares that state

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agencies should clearly state all restrictions imposed by the

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agencies or by boards that regulate professions and occupations

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on employment and should make an effort to establish that each

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such restriction is as limited as possible while continuing to

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support the goal of public safety.

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     (2) Each state agency, including, but not limited to,

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professional and occupational regulatory boards, shall, by

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December 31, 2008, submit to the President of the Senate, the

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Speaker of the House of Representatives, and the chairs of the

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appropriate legislative committees a report that includes:

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     (a) A list of all laws, rules, policies, and practices

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followed by the agency or imposed by the board which disqualify

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from employment persons who have been convicted of a crime and

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have completed any incarceration and restitution to which they

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have been sentenced for such a crime.

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     (b) The conclusions resulting from a review of these laws,

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rules, policies, and practices which the agency has conducted,

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including, for each such law, rule, policy, and practice,

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documentation of whether it is clearly stated in writing and is

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readily available to prospective employees, and a statement of

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any less restrictive way to protect the safety of the public

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while simultaneously providing employment opportunities for ex-

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offenders.

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     (c) If the restriction is based on a standard of good moral

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character, crimes or acts of moral turpitude, or crimes related

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to a specific occupation, proposed alternative wording of laws,

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rules, and policies which more precisely describes the basis for

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denial of employment.

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     (d) Proposed ways of removing barriers to the employment of

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ex-offenders which are not mandated by statute.

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     (e) Proposed statutory amendments that would reduce

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barriers to employment, render the remaining barriers optimally

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consistent among jobs that have very similar characteristics and

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require nearly identical degrees of trustworthiness and

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responsibility, and improve the clarity of requirements

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applicable to an ex-offender who seeks employment with a state

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agency or in an occupation regulated by a state board.

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     (3) Beginning in 2011, each state agency shall submit a

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report in accordance with subsection (2) biennially by December

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31 of each odd-numbered year.

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     Section 2.  Section 112.011, Florida Statutes, is amended to

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read:

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     112.011 Disqualification for licensing and public

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employment based on criminal conviction Felons; removal of

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disqualifications for employment, exceptions.--

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     (1)(a) Except as provided in s. 775.16, a person may shall

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not be disqualified from employment by the state, any of its

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agencies or political subdivisions, or any municipality solely

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because of a prior conviction for a crime. However, a person may

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be denied employment by the state, any of its agencies or

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political subdivisions, or any municipality by reason of the

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prior conviction for a crime if the crime was a felony or first

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degree misdemeanor and directly related to the position of

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employment sought.

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     (b) Except as provided in s. 775.16, a person whose civil

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rights have been restored shall not be disqualified to practice,

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pursue, or engage in any occupation, trade, vocation, profession,

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or business for which a license, permit, or certificate is

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required to be issued by the state, any of its agencies or

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political subdivisions, or any municipality solely because of a

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prior conviction for a crime. However, a person whose civil

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rights have been restored may be denied a license, permit, or

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certification to pursue, practice, or engage in an occupation,

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trade, vocation, profession, or business by reason of the prior

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conviction for a crime if the crime was a felony or first degree

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misdemeanor and directly related to the specific occupation,

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trade, vocation, profession, or business for which the license,

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permit, or certificate is sought.

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     (c) Notwithstanding any law to the contrary, a person may

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not be disqualified from receiving a license, permit, or

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certificate or from obtaining public employment on the grounds

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that a person's civil rights have not been restored. A person is

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not required to secure the restoration of his or her civil rights

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or prove that his or her civil rights have been restored in order

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to receive a license, permit, or certificate or to obtain public

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employment.

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     (2)(a) This section does shall not apply be applicable to

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any law enforcement or correctional agency.

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     (b) This section does shall not apply be applicable to the

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employment practices of any fire department relating to the

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hiring of firefighters. An applicant for employment with any fire

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department who has with a prior felony conviction shall be

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excluded from employment for a period of 4 years after expiration

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of sentence or final release by the Parole Commission unless the

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applicant, prior to the expiration of the 4-year period, has

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received a full pardon or has had his or her civil rights

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restored.

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     (c) This section does shall not apply be applicable to the

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employment practices of any county or municipality relating to

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the hiring of personnel for positions deemed to be critical to

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security or public safety pursuant to ss. 125.5801 and 166.0442.

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     (3)  Any complaint concerning the violation of this section

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shall be adjudicated in accordance with the procedures set forth

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in chapter 120 for administrative and judicial review.

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     Section 3.  Subsection (1) of section 760.10, Florida

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Statutes, is amended to read:

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     760.10  Unlawful employment practices.--

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     (1)  It is an unlawful employment practice for an employer:

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     (a)  To discharge or to fail or refuse to hire any

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individual, or otherwise to discriminate against any individual

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with respect to compensation, terms, conditions, or privileges of

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employment, because of such individual's race, color, religion,

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sex, national origin, age, handicap, or marital status.

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     (b)  To limit, segregate, or classify employees or

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applicants for employment in any way which would deprive or tend

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to deprive any individual of employment opportunities, or

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adversely affect any individual's status as an employee, because

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of such individual's race, color, religion, sex, national origin,

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age, handicap, or marital status.

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     (c) On and after July 1, 2009, with regard to an

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application for employment, to request any information, to make

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or keep a record of such information, to use any form of

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application or application blank that requests such information,

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or to exclude, limit, or otherwise discriminate against any

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person by reason of his or her failure to furnish such

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information through a written application or oral inquiry or

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otherwise regarding:

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     1. An arrest, detention, or disposition regarding any

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violation of law in which no conviction resulted;

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     2. A first and only conviction for any misdemeanor of the

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second degree; or

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     3. Any conviction of a misdemeanor if the date of such

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conviction or the completion of any period of incarceration

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resulting therefrom, whichever date is later, occurred 5 or more

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years prior to the date of such application for employment or

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such request for information, unless such person has been

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convicted of any offense within 5 years immediately preceding the

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date of such application for employment or such request for

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information.

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No applicant for employment shall be held under any provision of

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any law to be guilty of perjury or of otherwise giving a false

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statement by reason of his or her failure to recite or

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acknowledge such information as he or she has a right to withhold

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under this paragraph.

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     Section 4.  Section 943.0581, Florida Statutes, is amended

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to read:

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     943.0581  Administrative expunction.--

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     (1)  Notwithstanding any law dealing generally with the

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preservation and destruction of public records, the department

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may provide, by rule adopted pursuant to chapter 120, for the

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administrative expunction of any nonjudicial record of an arrest

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of a minor or an adult made contrary to law or by mistake.

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     (2)  A law enforcement agency shall apply to the department

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in the manner prescribed by rule for the administrative

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expunction of any nonjudicial record of any arrest of a minor or

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an adult who is subsequently determined by the agency, at its

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discretion, or by the final order of a court of competent

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jurisdiction, to have been arrested contrary to law or by

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mistake.

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     (3)  An adult or, in the case of a minor child, the parent

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or legal guardian of the minor child, may apply to the department

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in the manner prescribed by rule for the administrative

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expunction of any nonjudicial record of an arrest alleged to have

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been made contrary to law or by mistake, provided that the

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application is supported by the endorsement of the head of the

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arresting agency or his or her designee or the state attorney or

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his or her designee of the judicial circuit in which the arrest

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occurred.

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     (4)  An application for administrative expunction shall

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include an affidavit executed by the chief of the law enforcement

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agency, sheriff, or department head of the state law enforcement

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agency in which the affiant verifies that he or she has reviewed

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the record of the arrest and that the arrest was contrary to law

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or was a mistake. The affidavit shall include the date and time

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of the arrest, the name of the arresting officer, the name of the

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person arrested, and the crime or crimes charged, and the

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offender based tracking system number. The application shall be

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on the submitting agency's letterhead and signed by the head of

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the submitting agency or his or her designee.

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     (5) In the case of a person arrested on a warrant, capias,

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or pick-up order, the request for an administrative expunction

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may be made by the sheriff or his or her designee of the county

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where the warrant, capias, or pick-up order was issued or by the

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state attorney or his or her designee of the judicial circuit

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where the warrant, capias, or pick-up order was issued.

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     (6)(5) No application or, endorsement, or affidavit made

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under this section shall be admissible as evidence in any

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judicial or administrative proceeding or otherwise be construed

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in any way as an admission of liability in connection with an

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arrest.

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     Section 5.  Section 943.0585, Florida Statutes, is amended

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to read:

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     943.0585  Court-ordered expunction of criminal history

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records.--The courts of this state have jurisdiction over their

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own procedures, including the maintenance, expunction, and

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correction of judicial records containing criminal history

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information to the extent such procedures are not inconsistent

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with the conditions, responsibilities, and duties established by

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this section. Any court of competent jurisdiction may order a

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criminal justice agency to expunge the criminal history record of

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a minor or an adult who complies with the requirements of this

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section. The court shall not order a criminal justice agency to

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expunge a criminal history record until the person seeking to

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expunge a criminal history record has applied for and received a

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certificate of eligibility for expunction pursuant to subsection

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(2). A criminal history record that relates to a violation of s.

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393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.

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800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter

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839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

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916.1075, a violation enumerated in s. 907.041, or any violation

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specified as a predicate offense for registration as a sexual

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predator pursuant to s. 775.21, without regard to whether that

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offense alone is sufficient to require such registration, or for

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registration as a sexual offender pursuant to s. 943.0435, may

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not be expunged, without regard to whether adjudication was

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withheld, if the defendant was found guilty of or pled guilty or

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nolo contendere to the offense, or if the defendant, as a minor,

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was found to have committed, or pled guilty or nolo contendere to

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committing, the offense as a delinquent act. The court may only

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order expunction of a criminal history record pertaining to one

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arrest or one incident of alleged criminal activity, except as

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provided in this section. The court may, at its sole discretion,

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order the expunction of a criminal history record pertaining to

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more than one arrest if the additional arrests directly relate to

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the original arrest. If the court intends to order the expunction

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of records pertaining to such additional arrests, such intent

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must be specified in the order. A criminal justice agency may not

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expunge any record pertaining to such additional arrests if the

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order to expunge does not articulate the intention of the court

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to expunge a record pertaining to more than one arrest. This

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section does not prevent the court from ordering the expunction

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of only a portion of a criminal history record pertaining to one

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arrest or one incident of alleged criminal activity.

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Notwithstanding any law to the contrary, a criminal justice

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agency may comply with laws, court orders, and official requests

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of other jurisdictions relating to expunction, correction, or

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confidential handling of criminal history records or information

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derived therefrom. This section does not confer any right to the

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expunction of any criminal history record, and any request for

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expunction of a criminal history record may be denied at the sole

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discretion of the court.

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     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each

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petition to a court to expunge a criminal history record is

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complete only when accompanied by:

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     (a)  A valid certificate of eligibility for expunction

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issued by the department pursuant to subsection (2).

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     (b)  The petitioner's sworn statement attesting that the

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petitioner:

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     1.  Has never, prior to the date on which the petition is

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filed, been adjudicated guilty of a criminal offense or

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comparable ordinance violation, or been adjudicated delinquent

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for committing any felony or a misdemeanor specified in s.

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943.051(3)(b).

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     2.  Has not been adjudicated guilty of, or adjudicated

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delinquent for committing, any of the acts stemming from the

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arrest or alleged criminal activity to which the petition

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pertains.

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     3.  Has never secured a prior sealing or expunction of a

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criminal history record under this section, former s. 893.14,

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former s. 901.33, or former s. 943.058, or from any jurisdiction

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outside the state, unless expunction is sought of a criminal

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history record previously sealed for 10 years pursuant to

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paragraph (2)(h) and the record is otherwise eligible for

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expunction.

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     4.  Is eligible for such an expunction to the best of his or

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her knowledge or belief and does not have any other petition to

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expunge or any petition to seal pending before any court.

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Any person who knowingly provides false information on such sworn

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statement to the court commits a felony of the third degree,

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punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to

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petitioning the court to expunge a criminal history record, a

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person seeking to expunge a criminal history record shall apply

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to the department for a certificate of eligibility for

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expunction. The department shall, by rule adopted pursuant to

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chapter 120, establish procedures pertaining to the application

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for and issuance of certificates of eligibility for expunction. A

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certificate of eligibility for expunction is valid for 12 months

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after the date stamped on the certificate when issued by the

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department. After that time, the petitioner must reapply to the

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department for a new certificate of eligibility. Eligibility for

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a renewed certification of eligibility must be based on the

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status of the applicant and the law in effect at the time of the

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renewal application. The department shall issue a certificate of

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eligibility for expunction to a person who is the subject of a

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criminal history record if that person:

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     (a)  Has obtained, and submitted to the department, a

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written, certified statement from the appropriate state attorney

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or statewide prosecutor which indicates:

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     1.  That an indictment, information, or other charging

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document was not filed or issued in the case.

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     2.  That an indictment, information, or other charging

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document, if filed or issued in the case, was dismissed or nolle

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prosequi by the state attorney or statewide prosecutor, or was

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dismissed by a court of competent jurisdiction, and that none of

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the charges related to the arrest or alleged criminal activity to

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which the petition to expunge pertains resulted in a trial,

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without regard to whether the outcome of the trial was other than

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an adjudication of guilt.

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     3.  That the criminal history record does not relate to a

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violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s.

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796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.

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827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.

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893.135, s. 916.1075, a violation enumerated in s. 907.041, or

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any violation specified as a predicate offense for registration

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as a sexual predator pursuant to s. 775.21, without regard to

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whether that offense alone is sufficient to require such

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registration, or for registration as a sexual offender pursuant

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to s. 943.0435, where the defendant was found guilty of, or pled

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guilty or nolo contendere to any such offense, or that the

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defendant, as a minor, was found to have committed, or pled

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guilty or nolo contendere to committing, such an offense as a

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delinquent act, without regard to whether adjudication was

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withheld.

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     (b)  Remits a $75 processing fee to the department for

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placement in the Department of Law Enforcement Operating Trust

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Fund, unless such fee is waived by the executive director.

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     (c)  Has submitted to the department a certified copy of the

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disposition of the charge to which the petition to expunge

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pertains.

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     (d)  Has never, prior to the date on which the application

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for a certificate of eligibility is filed, been adjudicated

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guilty of a criminal offense or comparable ordinance violation,

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or been adjudicated delinquent for committing any felony or a

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misdemeanor specified in s. 943.051(3)(b).

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     (e)  Has not been adjudicated guilty of, or adjudicated

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delinquent for committing, any of the acts stemming from the

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arrest or alleged criminal activity to which the petition to

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expunge pertains.

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     (f)  Has never secured a prior sealing or expunction of a

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criminal history record under this section, former s. 893.14,

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former s. 901.33, or former s. 943.058, unless expunction is

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sought of a criminal history record previously sealed for 10

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years pursuant to paragraph (h) and the record is otherwise

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eligible for expunction.

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     (g)  Is no longer under court supervision applicable to the

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disposition of the arrest or alleged criminal activity to which

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the petition to expunge pertains.

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     (h)  Has previously obtained a court order sealing the

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record under this section, former s. 893.14, former s. 901.33, or

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former s. 943.058 for a minimum of 10 years because adjudication

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was withheld or because all charges related to the arrest or

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alleged criminal activity to which the petition to expunge

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pertains were not dismissed prior to trial, without regard to

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whether the outcome of the trial was other than an adjudication

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of guilt. The requirement for the record to have previously been

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sealed for a minimum of 10 years does not apply when a plea was

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not entered or all charges related to the arrest or alleged

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criminal activity to which the petition to expunge pertains were

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dismissed prior to trial.

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Each clerk of court shall place information on his or her

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Internet website about the availability of criminal history

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sealing and expunction. This information shall include a link to

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the department's website for information and applications for

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sealing and expunging a criminal history record.

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     (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

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     (a)  In judicial proceedings under this section, a copy of

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the completed petition to expunge shall be served upon the

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appropriate state attorney or the statewide prosecutor and upon

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the arresting agency; however, it is not necessary to make any

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agency other than the state a party. The appropriate state

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attorney or the statewide prosecutor and the arresting agency may

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respond to the court regarding the completed petition to expunge.

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     (b)  If relief is granted by the court, the clerk of the

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court shall certify copies of the order to the appropriate state

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attorney or the statewide prosecutor and the arresting agency.

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The arresting agency is responsible for forwarding the order to

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any other agency to which the arresting agency disseminated the

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criminal history record information to which the order pertains.

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The department shall forward the order to expunge to the Federal

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Bureau of Investigation. The clerk of the court shall certify a

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copy of the order to any other agency which the records of the

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court reflect has received the criminal history record from the

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court.

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     (c)  For an order to expunge entered by a court prior to

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July 1, 1992, the department shall notify the appropriate state

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attorney or statewide prosecutor of an order to expunge which is

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contrary to law because the person who is the subject of the

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record has previously been convicted of a crime or comparable

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ordinance violation or has had a prior criminal history record

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sealed or expunged. Upon receipt of such notice, the appropriate

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state attorney or statewide prosecutor shall take action, within

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60 days, to correct the record and petition the court to void the

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order to expunge. The department shall seal the record until such

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time as the order is voided by the court.

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     (d)  On or after July 1, 1992, the department or any other

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criminal justice agency is not required to act on an order to

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expunge entered by a court when such order does not comply with

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the requirements of this section. Upon receipt of such an order,

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the department must notify the issuing court, the appropriate

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state attorney or statewide prosecutor, the petitioner or the

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petitioner's attorney, and the arresting agency of the reason for

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noncompliance. The appropriate state attorney or statewide

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prosecutor shall take action within 60 days to correct the record

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and petition the court to void the order. No cause of action,

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including contempt of court, shall arise against any criminal

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justice agency for failure to comply with an order to expunge

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when the petitioner for such order failed to obtain the

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certificate of eligibility as required by this section or such

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order does not otherwise comply with the requirements of this

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section.

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     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

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criminal history record of a minor or an adult which is ordered

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expunged by a court of competent jurisdiction pursuant to this

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section must be physically destroyed or obliterated by any

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criminal justice agency having custody of such record; except

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that any criminal history record in the custody of the department

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must be retained in all cases. A criminal history record ordered

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expunged that is retained by the department is confidential and

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exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I

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of the State Constitution and not available to any person or

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entity except upon order of a court of competent jurisdiction. A

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criminal justice agency may retain a notation indicating

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compliance with an order to expunge.

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     (a)  The person who is the subject of a criminal history

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record that is expunged under this section or under other

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provisions of law, including former s. 893.14, former s. 901.33,

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and former s. 943.058, may lawfully deny or fail to acknowledge

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the arrests and subsequent dispositions covered by the expunged

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record, except when the subject of the record:

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     1.  Is a candidate for employment with a criminal justice

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agency;

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     2.  Is a defendant in a criminal prosecution;

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     3.  Concurrently or subsequently petitions for relief under

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this section or s. 943.059;

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     4.  Is a candidate for admission to The Florida Bar;

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     5.  Is seeking to be employed or licensed by or to contract

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with the Department of Children and Family Services or the

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Department of Juvenile Justice or to be employed or used by such

476

contractor or licensee in a sensitive position having direct

477

contact with children, the developmentally disabled, the aged, or

478

the elderly as provided in s. 110.1127(3), s. 393.063, s.

479

394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

480

409.175(2)(i), s. 415.102(4), chapter 916, s. 985.644, chapter

481

400, or chapter 429;

482

     6.  Is seeking to be employed or licensed by the Department

483

of Education, any district school board, any university

484

laboratory school, any charter school, any private or parochial

485

school, or any local governmental entity that licenses child care

486

facilities; or

487

     7.  Is seeking authorization from a Florida seaport

488

identified in s. 311.09 for employment within or access to one or

489

more of such seaports pursuant to s. 311.12 or s. 311.125.

490

     (b)  Subject to the exceptions in paragraph (a), a person

491

who has been granted an expunction under this section, former s.

492

893.14, former s. 901.33, or former s. 943.058 may not be held

493

under any provision of law of this state to commit perjury or to

494

be otherwise liable for giving a false statement by reason of

495

such person's failure to recite or acknowledge an expunged

496

criminal history record, including when asked on an employment

497

application.

498

     (c)  Information relating to the existence of an expunged

499

criminal history record which is provided in accordance with

500

paragraph (a) is confidential and exempt from the provisions of

501

s. 119.07(1) and s. 24(a), Art. I of the State Constitution,

502

except that the department shall disclose the existence of a

503

criminal history record ordered expunged to the entities set

504

forth in subparagraphs (a)1., 4., 5., 6., and 7. for their

505

respective licensing, access authorization, and employment

506

purposes, and to criminal justice agencies for their respective

507

criminal justice purposes. It is unlawful for any employee of an

508

entity set forth in subparagraph (a)1., subparagraph (a)4.,

509

subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to

510

disclose information relating to the existence of an expunged

511

criminal history record of a person seeking employment, access

512

authorization, or licensure with such entity or contractor,

513

except to the person to whom the criminal history record relates

514

or to persons having direct responsibility for employment, access

515

authorization, or licensure decisions. Any person who violates

516

this paragraph commits a misdemeanor of the first degree,

517

punishable as provided in s. 775.082 or s. 775.083.

518

     (d) The contents of an expunged record may be disclosed by

519

the department upon the receipt of the written, notarized request

520

from the subject of the record.

521

     (5)  STATUTORY REFERENCES.--Any reference to any other

522

chapter, section, or subdivision of the Florida Statutes in this

523

section constitutes a general reference under the doctrine of

524

incorporation by reference.

525

     Section 6.  Section 943.059, Florida Statutes, is amended to

526

read:

527

     943.059  Court-ordered sealing of criminal history

528

records.--The courts of this state shall continue to have

529

jurisdiction over their own procedures, including the

530

maintenance, sealing, and correction of judicial records

531

containing criminal history information to the extent such

532

procedures are not inconsistent with the conditions,

533

responsibilities, and duties established by this section. Any

534

court of competent jurisdiction may order a criminal justice

535

agency to seal the criminal history record of a minor or an adult

536

who complies with the requirements of this section. The court

537

shall not order a criminal justice agency to seal a criminal

538

history record until the person seeking to seal a criminal

539

history record has applied for and received a certificate of

540

eligibility for sealing pursuant to subsection (2). A criminal

541

history record that relates to a violation of s. 393.135, s.

542

394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s.

543

810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.

544

847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a

545

violation enumerated in s. 907.041, or any violation specified as

546

a predicate offense for registration as a sexual predator

547

pursuant to s. 775.21, without regard to whether that offense

548

alone is sufficient to require such registration, or for

549

registration as a sexual offender pursuant to s. 943.0435, may

550

not be sealed, without regard to whether adjudication was

551

withheld, if the defendant was found guilty of or pled guilty or

552

nolo contendere to the offense, or if the defendant, as a minor,

553

was found to have committed or pled guilty or nolo contendere to

554

committing the offense as a delinquent act. The court may only

555

order sealing of a criminal history record pertaining to one

556

arrest or one incident of alleged criminal activity, except as

557

provided in this section. The court may, at its sole discretion,

558

order the sealing of a criminal history record pertaining to more

559

than one arrest if the additional arrests directly relate to the

560

original arrest. If the court intends to order the sealing of

561

records pertaining to such additional arrests, such intent must

562

be specified in the order. A criminal justice agency may not seal

563

any record pertaining to such additional arrests if the order to

564

seal does not articulate the intention of the court to seal

565

records pertaining to more than one arrest. This section does not

566

prevent the court from ordering the sealing of only a portion of

567

a criminal history record pertaining to one arrest or one

568

incident of alleged criminal activity. Notwithstanding any law to

569

the contrary, a criminal justice agency may comply with laws,

570

court orders, and official requests of other jurisdictions

571

relating to sealing, correction, or confidential handling of

572

criminal history records or information derived therefrom. This

573

section does not confer any right to the sealing of any criminal

574

history record, and any request for sealing a criminal history

575

record may be denied at the sole discretion of the court.

576

     (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

577

petition to a court to seal a criminal history record is complete

578

only when accompanied by:

579

     (a)  A valid certificate of eligibility for sealing issued

580

by the department pursuant to subsection (2).

581

     (b)  The petitioner's sworn statement attesting that the

582

petitioner:

583

     1.  Has never, prior to the date on which the petition is

584

filed, been adjudicated guilty of a criminal offense or

585

comparable ordinance violation, or been adjudicated delinquent

586

for committing any felony or a misdemeanor specified in s.

587

943.051(3)(b).

588

     2.  Has not been adjudicated guilty of or adjudicated

589

delinquent for committing any of the acts stemming from the

590

arrest or alleged criminal activity to which the petition to seal

591

pertains.

592

     3. Has never secured a prior sealing, except as provided in

593

subsection (6), or expunction of a criminal history record under

594

this section, former s. 893.14, former s. 901.33, former s.

595

943.058, or from any jurisdiction outside the state.

596

     4.  Is eligible for such a sealing to the best of his or her

597

knowledge or belief and does not have any other petition to seal

598

or any petition to expunge pending before any court.

599

600

Any person who knowingly provides false information on such sworn

601

statement to the court commits a felony of the third degree,

602

punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

603

     (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

604

petitioning the court to seal a criminal history record, a person

605

seeking to seal a criminal history record shall apply to the

606

department for a certificate of eligibility for sealing. The

607

department shall, by rule adopted pursuant to chapter 120,

608

establish procedures pertaining to the application for and

609

issuance of certificates of eligibility for sealing. A

610

certificate of eligibility for sealing is valid for 12 months

611

after the date stamped on the certificate when issued by the

612

department. After that time, the petitioner must reapply to the

613

department for a new certificate of eligibility. Eligibility for

614

a renewed certification of eligibility must be based on the

615

status of the applicant and the law in effect at the time of the

616

renewal application. The department shall issue a certificate of

617

eligibility for sealing to a person who is the subject of a

618

criminal history record provided that such person:

619

     (a)  Has submitted to the department a certified copy of the

620

disposition of the charge to which the petition to seal pertains.

621

     (b)  Remits a $75 processing fee to the department for

622

placement in the Department of Law Enforcement Operating Trust

623

Fund, unless such fee is waived by the executive director.

624

     (c)  Has never, prior to the date on which the application

625

for a certificate of eligibility is filed, been adjudicated

626

guilty of a criminal offense or comparable ordinance violation,

627

or been adjudicated delinquent for committing any felony or a

628

misdemeanor specified in s. 943.051(3)(b).

629

     (d)  Has not been adjudicated guilty of or adjudicated

630

delinquent for committing any of the acts stemming from the

631

arrest or alleged criminal activity to which the petition to seal

632

pertains.

633

     (e) Has never secured a prior sealing, except as provided

634

in subsection (6), or expunction of a criminal history record

635

under this section, former s. 893.14, former s. 901.33, or former

636

s. 943.058.

637

     (f)  Is no longer under court supervision applicable to the

638

disposition of the arrest or alleged criminal activity to which

639

the petition to seal pertains.

640

     (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

641

     (a)  In judicial proceedings under this section, a copy of

642

the completed petition to seal shall be served upon the

643

appropriate state attorney or the statewide prosecutor and upon

644

the arresting agency; however, it is not necessary to make any

645

agency other than the state a party. The appropriate state

646

attorney or the statewide prosecutor and the arresting agency may

647

respond to the court regarding the completed petition to seal.

648

     (b)  If relief is granted by the court, the clerk of the

649

court shall certify copies of the order to the appropriate state

650

attorney or the statewide prosecutor and to the arresting agency.

651

The arresting agency is responsible for forwarding the order to

652

any other agency to which the arresting agency disseminated the

653

criminal history record information to which the order pertains.

654

The department shall forward the order to seal to the Federal

655

Bureau of Investigation. The clerk of the court shall certify a

656

copy of the order to any other agency which the records of the

657

court reflect has received the criminal history record from the

658

court.

659

     (c)  For an order to seal entered by a court prior to July

660

1, 1992, the department shall notify the appropriate state

661

attorney or statewide prosecutor of any order to seal which is

662

contrary to law because the person who is the subject of the

663

record has previously been convicted of a crime or comparable

664

ordinance violation or has had a prior criminal history record

665

sealed, except as provided in subsection (6), or expunged. Upon

666

receipt of such notice, the appropriate state attorney or

667

statewide prosecutor shall take action, within 60 days, to

668

correct the record and petition the court to void the order to

669

seal. The department shall seal the record until such time as the

670

order is voided by the court.

671

     (d)  On or after July 1, 1992, the department or any other

672

criminal justice agency is not required to act on an order to

673

seal entered by a court when such order does not comply with the

674

requirements of this section. Upon receipt of such an order, the

675

department must notify the issuing court, the appropriate state

676

attorney or statewide prosecutor, the petitioner or the

677

petitioner's attorney, and the arresting agency of the reason for

678

noncompliance. The appropriate state attorney or statewide

679

prosecutor shall take action within 60 days to correct the record

680

and petition the court to void the order. No cause of action,

681

including contempt of court, shall arise against any criminal

682

justice agency for failure to comply with an order to seal when

683

the petitioner for such order failed to obtain the certificate of

684

eligibility as required by this section or when such order does

685

not comply with the requirements of this section.

686

     (e)  An order sealing a criminal history record pursuant to

687

this section does not require that such record be surrendered to

688

the court, and such record shall continue to be maintained by the

689

department and other criminal justice agencies.

690

     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal

691

history record of a minor or an adult which is ordered sealed by

692

a court of competent jurisdiction pursuant to this section is

693

confidential and exempt from the provisions of s. 119.07(1) and

694

s. 24(a), Art. I of the State Constitution and is available only

695

to the person who is the subject of the record, to the subject's

696

attorney, to criminal justice agencies for their respective

697

criminal justice purposes, which include conducting a criminal

698

history background check for approval of firearms purchases or

699

transfers as authorized by state or federal law, or to those

700

entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for

701

their respective licensing, access authorization, and employment

702

purposes.

703

     (a)  The subject of a criminal history record sealed under

704

this section or under other provisions of law, including former

705

s. 893.14, former s. 901.33, and former s. 943.058, may lawfully

706

deny or fail to acknowledge the arrests and subsequent

707

dispositions covered by the sealed record, except when the

708

subject of the record:

709

     1.  Is a candidate for employment with a criminal justice

710

agency;

711

     2.  Is a defendant in a criminal prosecution;

712

     3.  Concurrently or subsequently petitions for relief under

713

this section or s. 943.0585;

714

     4.  Is a candidate for admission to The Florida Bar;

715

     5.  Is seeking to be employed or licensed by or to contract

716

with the Department of Children and Family Services or the

717

Department of Juvenile Justice or to be employed or used by such

718

contractor or licensee in a sensitive position having direct

719

contact with children, the developmentally disabled, the aged, or

720

the elderly as provided in s. 110.1127(3), s. 393.063, s.

721

394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

722

409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s.

723

985.644, chapter 400, or chapter 429;

724

     6.  Is seeking to be employed or licensed by the Department

725

of Education, any district school board, any university

726

laboratory school, any charter school, any private or parochial

727

school, or any local governmental entity that licenses child care

728

facilities;

729

     7.  Is attempting to purchase a firearm from a licensed

730

importer, licensed manufacturer, or licensed dealer and is

731

subject to a criminal history background check under state or

732

federal law; or

733

     8.  Is seeking authorization from a Florida seaport

734

identified in s. 311.09 for employment within or access to one or

735

more of such seaports pursuant to s. 311.12 or s. 311.125.

736

     (b)  Subject to the exceptions in paragraph (a), a person

737

who has been granted a sealing under this section, former s.

738

893.14, former s. 901.33, or former s. 943.058 may not be held

739

under any provision of law of this state to commit perjury or to

740

be otherwise liable for giving a false statement by reason of

741

such person's failure to recite or acknowledge a sealed criminal

742

history record, including when asked on an employment

743

application.

744

     (c)  Information relating to the existence of a sealed

745

criminal record provided in accordance with the provisions of

746

paragraph (a) is confidential and exempt from the provisions of

747

s. 119.07(1) and s. 24(a), Art. I of the State Constitution,

748

except that the department shall disclose the sealed criminal

749

history record to the entities set forth in subparagraphs (a)1.,

750

4., 5., 6., and 8. for their respective licensing, access

751

authorization, and employment purposes. It is unlawful for any

752

employee of an entity set forth in subparagraph (a)1.,

753

subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or

754

subparagraph (a)8. to disclose information relating to the

755

existence of a sealed criminal history record of a person seeking

756

employment, access authorization, or licensure with such entity

757

or contractor, except to the person to whom the criminal history

758

record relates or to persons having direct responsibility for

759

employment, access authorization, or licensure decisions. Any

760

person who violates the provisions of this paragraph commits a

761

misdemeanor of the first degree, punishable as provided in s.

762

775.082 or s. 775.083.

763

     (5)  STATUTORY REFERENCES.--Any reference to any other

764

chapter, section, or subdivision of the Florida Statutes in this

765

section constitutes a general reference under the doctrine of

766

incorporation by reference.

767

     (6) SECOND SEALING OF CRIMINAL HISTORY RECORD.--A person

768

may petition the court to seek a second sealing of his or her

769

criminal history record after having secured one previous

770

expunction or sealing only under the following circumstances.

771

Before petitioning the court for such relief, the person must

772

apply to the department to obtain a certificate of eligibility

773

for the second sealing of his or her criminal history record. The

774

department shall issue the certificate only if the person has not

775

been arrested during the 5-year period following the date of the

776

court order for the initial expunction or sealing of his or her

777

criminal history record. All other provisions and requirements of

778

this section apply when a person seeks a second sealing of his

779

criminal history record.

780

     Section 7. The Office of Program Policy Analysis and

781

Government Accountability, in cooperation with the Department of

782

Law Enforcement, shall:

783

(1) Assess current safeguards for the accuracy of the

784

criminal history data contained in the Department of Law

785

Enforcement's Computerized Criminal History (CCH) database.

786

     (2) Assess the current process available to potential

787

private employers or licensing entities in determining whether an

788

applicant has a criminal history.

789

     (3) Assess whether an adequate process exists to allow the

790

potential private employer or licensing entity to determine

791

whether an applicant's response to an "arrest, conviction, or

792

adjudication withheld" criminal history question on an

793

application is truthful and complete.

794

     (4) Assess the feasibility of establishing appropriate

795

privacy safeguards to protect job or license applicants, such as

796

providing informed consent and the opportunity to review a

797

criminal history record before a job or licensing application is

798

made, before the criminal history record is provided to the

799

potential employer or licensing entity, and before adverse action

800

is taken by the potential employer or licensing entity.

801

     (5) Identify actions that could be taken to improve both

802

the completeness of the criminal history record and the consumer

803

readability of the criminal history record.

804

805

The Office of Program Policy Analysis and Government

806

Accountability shall report its findings to the President of the

807

Senate and Speaker of the House of Representatives by February 1,

808

2009.

809

     Section 8.  This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.