CS for CS for SB 2152 First Engrossed (ntc)
20082152e1
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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 the Governor and legislative officers a report
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that states current restrictions on employment of ex-
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offenders and possible alternatives that are compatible
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with public safety; requiring that such report be
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submitted in 2011 and then every 8 years thereafter;
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amending s. 112.011, F.S.; providing that a person may not
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be disqualified from receiving a license, permit, or
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certificate or from obtaining public employment on the
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grounds that the person's civil rights have not been
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restored; providing that a person is not required to
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secure the restoration of his or her civil rights or prove
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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
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public employment; amending s. 943.0581, F.S.; authorizing
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the arresting agency or the agency where the warrant was
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issued to request an administrative expunction; amending
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s. 943.0585, F.S.; requiring the clerk of the court to
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place information about the availability of criminal
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history sealing and expunction on the court's Internet
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website and provide a link to the Department of Law
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Enforcement's website related to such information;
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clarifying under what circumstances a person may legally
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deny an expunged criminal history record; authorizing
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disclosure of the contents of an expunged record upon
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receipt of a written, notarized request from the record
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subject; amending s. 943.059, F.S.; clarifying under what
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circumstances a person may legally deny a sealed criminal
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history record; authorizing a person to petition the court
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to seek a second criminal history record sealing under
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certain circumstances; requiring the Office of Program
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Policy Analysis and Government Accountability to conduct a
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study; specifying the research questions for the study;
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requiring a report to be submitted to the Legislature;
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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 goal 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 state all restrictions imposed by the agencies or
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by boards that regulate professions and occupations on employment
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and should make an effort to establish that each such restriction
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is as defined as possible while continuing to maintain public
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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 Governor, the President of the
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Senate, and the Speaker of the House of Representatives an
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initial report that includes:
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(a) A review of policies followed by the agency or imposed
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by the board which disqualify from employment or licensure
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persons who have been convicted of a crime and have completed any
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incarceration and restitution to which they have been sentenced
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for such a crime.
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(b) The conclusions resulting from the review of these
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policies and a determination of whether the disqualifications are
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readily available to prospective employees and prospective
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licensees.
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(c) If the restriction is based on a standard of good moral
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character or crimes or acts of moral turpitude, a determination
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of the merits of alternative policies and particular
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disqualifying offenses that may more precisely describe the basis
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for denial of employment or licensure.
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(3) Beginning in 2011, each state agency shall submit a
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brief report in accordance with subsection (2) every 8 years by
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December of that 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 or relevant to the standards
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normally associated with, or determined by the regulatory
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authority to be necessary for the protection of the public or
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other parties with, the specific occupation, trade, vocation,
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profession, or business for which the license, permit, or
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certificate is sought.
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(c) Notwithstanding any law to the contrary, the status of
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a person's civil rights may not be considered a disqualification
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or grounds for denial of a license, permit, or certificate, or
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public employment. A person is not required to secure the
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restoration of his or her civil rights or prove that his or her
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civil rights have been restored in order to be considered for a
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license, permit, or certificate, or to be considered for public
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employment. However, paragraph (c) does not apply to the issuance
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of a license for a concealed weapon or firearm or the purchasing
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of a firearm pursuant to chapter 790.
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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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(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. 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 4. 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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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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(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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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
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contractor or licensee in a sensitive position having direct
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contact with children, the developmentally disabled, the aged, or
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400, or chapter 429;
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6. Is seeking to be employed or licensed by the Department
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of Education, any district school board, any university
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laboratory school, any charter school, any private or parochial
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school, or any local governmental entity that licenses child care
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facilities; or
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7. Is seeking authorization from a Florida seaport
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identified in s. 311.09 for employment within or access to one or
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(b) Subject to the exceptions in paragraph (a), a person
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who has been granted an expunction under this section, former s.
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893.14, former s. 901.33, or former s. 943.058 may not be held
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under any provision of law of this state to commit perjury or to
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be otherwise liable for giving a false statement by reason of
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such person's failure to recite or acknowledge an expunged
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criminal history record, including when asked on an employment
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application.
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(c) Information relating to the existence of an expunged
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criminal history record which is provided in accordance with
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paragraph (a) is confidential and exempt from the provisions of
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s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
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except that the department shall disclose the existence of a
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criminal history record ordered expunged to the entities set
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forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
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respective licensing, access authorization, and employment
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purposes, and to criminal justice agencies for their respective
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criminal justice purposes. It is unlawful for any employee of an
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entity set forth in subparagraph (a)1., subparagraph (a)4.,
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subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
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disclose information relating to the existence of an expunged
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criminal history record of a person seeking employment, access
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authorization, or licensure with such entity or contractor,
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except to the person to whom the criminal history record relates
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or to persons having direct responsibility for employment, access
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authorization, or licensure decisions. Any person who violates
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this paragraph commits a misdemeanor of the first degree,
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(d) The contents of an expunged record may be disclosed to
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the subject of the record by the department upon the receipt of
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the written, notarized request from the subject of the record.
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(5) STATUTORY REFERENCES.--Any reference to any other
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chapter, section, or subdivision of the Florida Statutes in this
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section constitutes a general reference under the doctrine of
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incorporation by reference.
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Section 5. Section 943.059, Florida Statutes, is amended to
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read:
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943.059 Court-ordered sealing of criminal history
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records.--The courts of this state shall continue to have
477
jurisdiction over their own procedures, including the
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maintenance, sealing, and correction of judicial records
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containing criminal history information to the extent such
480
procedures are not inconsistent with the conditions,
481
responsibilities, and duties established by this section. Any
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court of competent jurisdiction may order a criminal justice
483
agency to seal the criminal history record of a minor or an adult
484
who complies with the requirements of this section. The court
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shall not order a criminal justice agency to seal a criminal
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history record until the person seeking to seal a criminal
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history record has applied for and received a certificate of
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eligibility for sealing pursuant to subsection (2). A criminal
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history record that relates to a violation of s. 393.135, s.
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violation enumerated in s. 907.041, or any violation specified as
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a predicate offense for registration as a sexual predator
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pursuant to s. 775.21, without regard to whether that offense
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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 sealed, without regard to whether adjudication was
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withheld, if the defendant was found guilty of or pled guilty or
500
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
503
order sealing of a criminal history record pertaining to one
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arrest or one incident of alleged criminal activity, except as
505
provided in this section. The court may, at its sole discretion,
506
order the sealing of a criminal history record pertaining to more
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than one arrest if the additional arrests directly relate to the
508
original arrest. If the court intends to order the sealing of
509
records pertaining to such additional arrests, such intent must
510
be specified in the order. A criminal justice agency may not seal
511
any record pertaining to such additional arrests if the order to
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seal does not articulate the intention of the court to seal
513
records pertaining to more than one arrest. This section does not
514
prevent the court from ordering the sealing of only a portion of
515
a criminal history record pertaining to one arrest or one
516
incident of alleged criminal activity. Notwithstanding any law to
517
the contrary, a criminal justice agency may comply with laws,
518
court orders, and official requests of other jurisdictions
519
relating to sealing, correction, or confidential handling of
520
criminal history records or information derived therefrom. This
521
section does not confer any right to the sealing of any criminal
522
history record, and any request for sealing a criminal history
523
record may be denied at the sole discretion of the court.
524
(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
525
petition to a court to seal a criminal history record is complete
526
only when accompanied by:
527
(a) A valid certificate of eligibility for sealing issued
528
by the department pursuant to subsection (2).
529
(b) The petitioner's sworn statement attesting that the
530
petitioner:
531
1. Has never, prior to the date on which the petition is
532
filed, been adjudicated guilty of a criminal offense or
533
comparable ordinance violation, or been adjudicated delinquent
534
for committing any felony or a misdemeanor specified in s.
535
943.051(3)(b).
536
2. Has not been adjudicated guilty of or adjudicated
537
delinquent for committing any of the acts stemming from the
538
arrest or alleged criminal activity to which the petition to seal
539
pertains.
540
3. Has never secured a prior sealing, except as provided in
541
subsection (6), or expunction of a criminal history record under
542
this section, former s. 893.14, former s. 901.33, former s.
543
943.058, or from any jurisdiction outside the state.
544
4. Is eligible for such a sealing to the best of his or her
545
knowledge or belief and does not have any other petition to seal
546
or any petition to expunge pending before any court.
547
548
Any person who knowingly provides false information on such sworn
549
statement to the court commits a felony of the third degree,
551
(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
552
petitioning the court to seal a criminal history record, a person
553
seeking to seal a criminal history record shall apply to the
554
department for a certificate of eligibility for sealing. The
555
department shall, by rule adopted pursuant to chapter 120,
556
establish procedures pertaining to the application for and
557
issuance of certificates of eligibility for sealing. A
558
certificate of eligibility for sealing is valid for 12 months
559
after the date stamped on the certificate when issued by the
560
department. After that time, the petitioner must reapply to the
561
department for a new certificate of eligibility. Eligibility for
562
a renewed certification of eligibility must be based on the
563
status of the applicant and the law in effect at the time of the
564
renewal application. The department shall issue a certificate of
565
eligibility for sealing to a person who is the subject of a
566
criminal history record provided that such person:
567
(a) Has submitted to the department a certified copy of the
568
disposition of the charge to which the petition to seal pertains.
569
(b) Remits a $75 processing fee to the department for
570
placement in the Department of Law Enforcement Operating Trust
571
Fund, unless such fee is waived by the executive director.
572
(c) Has never, prior to the date on which the application
573
for a certificate of eligibility is filed, been adjudicated
574
guilty of a criminal offense or comparable ordinance violation,
575
or been adjudicated delinquent for committing any felony or a
576
misdemeanor specified in s. 943.051(3)(b).
577
(d) Has not been adjudicated guilty of or adjudicated
578
delinquent for committing any of the acts stemming from the
579
arrest or alleged criminal activity to which the petition to seal
580
pertains.
581
(e) Has never secured a prior sealing, except as provided
582
in subsection (6), or expunction of a criminal history record
583
under this section, former s. 893.14, former s. 901.33, or former
584
s. 943.058.
585
(f) Is no longer under court supervision applicable to the
586
disposition of the arrest or alleged criminal activity to which
587
the petition to seal pertains.
588
(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
589
(a) In judicial proceedings under this section, a copy of
590
the completed petition to seal shall be served upon the
591
appropriate state attorney or the statewide prosecutor and upon
592
the arresting agency; however, it is not necessary to make any
593
agency other than the state a party. The appropriate state
594
attorney or the statewide prosecutor and the arresting agency may
595
respond to the court regarding the completed petition to seal.
596
(b) If relief is granted by the court, the clerk of the
597
court shall certify copies of the order to the appropriate state
598
attorney or the statewide prosecutor and to the arresting agency.
599
The arresting agency is responsible for forwarding the order to
600
any other agency to which the arresting agency disseminated the
601
criminal history record information to which the order pertains.
602
The department shall forward the order to seal to the Federal
603
Bureau of Investigation. The clerk of the court shall certify a
604
copy of the order to any other agency which the records of the
605
court reflect has received the criminal history record from the
606
court.
607
(c) For an order to seal entered by a court prior to July
608
1, 1992, the department shall notify the appropriate state
609
attorney or statewide prosecutor of any order to seal which is
610
contrary to law because the person who is the subject of the
611
record has previously been convicted of a crime or comparable
612
ordinance violation or has had a prior criminal history record
613
sealed, except as provided in subsection (6), or expunged. Upon
614
receipt of such notice, the appropriate state attorney or
615
statewide prosecutor shall take action, within 60 days, to
616
correct the record and petition the court to void the order to
617
seal. The department shall seal the record until such time as the
618
order is voided by the court.
619
(d) On or after July 1, 1992, the department or any other
620
criminal justice agency is not required to act on an order to
621
seal entered by a court when such order does not comply with the
622
requirements of this section. Upon receipt of such an order, the
623
department must notify the issuing court, the appropriate state
624
attorney or statewide prosecutor, the petitioner or the
625
petitioner's attorney, and the arresting agency of the reason for
626
noncompliance. The appropriate state attorney or statewide
627
prosecutor shall take action within 60 days to correct the record
628
and petition the court to void the order. No cause of action,
629
including contempt of court, shall arise against any criminal
630
justice agency for failure to comply with an order to seal when
631
the petitioner for such order failed to obtain the certificate of
632
eligibility as required by this section or when such order does
633
not comply with the requirements of this section.
634
(e) An order sealing a criminal history record pursuant to
635
this section does not require that such record be surrendered to
636
the court, and such record shall continue to be maintained by the
637
department and other criminal justice agencies.
638
(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
639
history record of a minor or an adult which is ordered sealed by
640
a court of competent jurisdiction pursuant to this section is
641
confidential and exempt from the provisions of s. 119.07(1) and
642
s. 24(a), Art. I of the State Constitution and is available only
643
to the person who is the subject of the record, to the subject's
644
attorney, to criminal justice agencies for their respective
645
criminal justice purposes, which include conducting a criminal
646
history background check for approval of firearms purchases or
647
transfers as authorized by state or federal law, or to those
648
entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for
649
their respective licensing, access authorization, and employment
650
purposes.
651
(a) The subject of a criminal history record sealed under
652
this section or under other provisions of law, including former
653
s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
654
deny or fail to acknowledge the arrests and subsequent
655
dispositions covered by the sealed record, except when the
656
subject of the record:
657
1. Is a candidate for employment with a criminal justice
658
agency;
659
2. Is a defendant in a criminal prosecution;
660
3. Concurrently or subsequently petitions for relief under
661
this section or s. 943.0585;
662
4. Is a candidate for admission to The Florida Bar;
663
5. Is seeking to be employed or licensed by or to contract
664
with the Department of Children and Family Services or the
665
Department of Juvenile Justice or to be employed or used by such
666
contractor or licensee in a sensitive position having direct
667
contact with children, the developmentally disabled, the aged, or
671
985.644, chapter 400, or chapter 429;
672
6. Is seeking to be employed or licensed by the Department
673
of Education, any district school board, any university
674
laboratory school, any charter school, any private or parochial
675
school, or any local governmental entity that licenses child care
676
facilities;
677
7. Is attempting to purchase a firearm from a licensed
678
importer, licensed manufacturer, or licensed dealer and is
679
subject to a criminal history background check under state or
680
federal law; or
681
8. Is seeking authorization from a Florida seaport
682
identified in s. 311.09 for employment within or access to one or
684
(b) Subject to the exceptions in paragraph (a), a person
685
who has been granted a sealing under this section, former s.
686
893.14, former s. 901.33, or former s. 943.058 may not be held
687
under any provision of law of this state to commit perjury or to
688
be otherwise liable for giving a false statement by reason of
689
such person's failure to recite or acknowledge a sealed criminal
690
history record, including when asked on an employment
691
application.
692
(c) Information relating to the existence of a sealed
693
criminal record provided in accordance with the provisions of
694
paragraph (a) is confidential and exempt from the provisions of
695
s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
696
except that the department shall disclose the sealed criminal
697
history record to the entities set forth in subparagraphs (a)1.,
698
4., 5., 6., and 8. for their respective licensing, access
699
authorization, and employment purposes. It is unlawful for any
700
employee of an entity set forth in subparagraph (a)1.,
701
subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
702
subparagraph (a)8. to disclose information relating to the
703
existence of a sealed criminal history record of a person seeking
704
employment, access authorization, or licensure with such entity
705
or contractor, except to the person to whom the criminal history
706
record relates or to persons having direct responsibility for
707
employment, access authorization, or licensure decisions. Any
708
person who violates the provisions of this paragraph commits a
709
misdemeanor of the first degree, punishable as provided in s.
711
(5) STATUTORY REFERENCES.--Any reference to any other
712
chapter, section, or subdivision of the Florida Statutes in this
713
section constitutes a general reference under the doctrine of
714
incorporation by reference.
715
(6) SECOND SEALING OF CRIMINAL HISTORY RECORD.--A person
716
may petition the court to seek a second sealing of his or her
717
criminal history record after having secured one previous
718
expunction or sealing under the following circumstances only.
719
Before petitioning the court for such relief, the person must
720
apply to the department to obtain a certificate of eligibility
721
for the second sealing of his or her criminal history record. The
722
department shall issue the certificate only if the person has not
723
been arrested during the 5-year period following the date of the
724
court order for the initial expunction or sealing of his or her
725
criminal history record. All other provisions and requirements of
726
this section apply when a person seeks a second sealing of his
727
criminal history record.
728
Section 6. The Office of Program Policy Analysis and
729
Government Accountability, in cooperation with the Department of
730
Law Enforcement, shall:
731
(1) Assess current safeguards for the accuracy of the
732
criminal history data contained in the Department of Law
733
Enforcement's Computerized Criminal History (CCH) database.
734
(2) Assess the current process available to potential
735
private employers or licensing entities in determining whether an
736
applicant has a criminal history.
737
(3) Assess whether an adequate process exists to allow the
738
potential private employer or licensing entity to determine
739
whether an applicant's response to an "arrest, conviction, or
740
adjudication withheld" criminal history question on an
741
application is truthful and complete.
742
(4) Assess the feasibility of establishing appropriate
743
privacy safeguards to protect job or license applicants, such as
744
providing informed consent and the opportunity to review a
745
criminal history record before a job or licensing application is
746
made, before the criminal history record is provided to the
747
potential employer or licensing entity, and before adverse action
748
is taken by the potential employer or licensing entity.
749
(5) Identify actions that could be taken to improve both
750
the completeness of the criminal history record and the consumer
751
readability of the criminal history record.
752
753
The Office of Program Policy Analysis and Government
754
Accountability shall report its findings to the President of the
755
Senate and the Speaker of the House of Representatives by
756
February 1, 2009.
757
Section 7. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.