Florida Senate - 2009 SB 86
By Senator Wilson
33-00077-09 200986__
1 A bill to be entitled
2 An act relating to criminal records; amending s.
3 943.0515, F.S.; requiring the Department of Law
4 Enforcement to notify certain specified agencies of
5 the criminal records of a minor which are expunged;
6 requiring the arresting agency, the county, and the
7 department to notify those entities that received the
8 criminal records information; requiring that criminal
9 history records that are to be expunged be physically
10 destroyed or obliterated by the criminal justice
11 agency having physical custody of the records;
12 amending s. 943.0585, F.S.; prohibiting certain
13 criminal records from being expunged; providing that
14 other records may be expunged under certain
15 circumstances; providing that certain information be
16 included in the application for a certificate of
17 eligibility for expunction; prohibiting an agency,
18 organization, or company to which criminal history
19 information was disseminated from releasing the
20 expunged information after a specified period;
21 amending s. 943.059, F.S.; prohibiting certain
22 criminal records from being sealed; providing that
23 other records may be sealed under certain
24 circumstances; requiring that certain information be
25 included in the application for a certificate of
26 eligibility for sealing; prohibiting an agency,
27 organization, or company to which criminal history
28 information was disseminated from releasing the sealed
29 information after a specified period; amending s.
30 943.0582, F.S.; conforming a cross-reference;
31 providing an effective date.
32
33 Be It Enacted by the Legislature of the State of Florida:
34
35 Section 1. Present subsection (3) of section 943.0515,
36 Florida Statutes, is redesignated as subsection (5), and new
37 subsections (3) and (4) are added to that section, to read:
38 943.0515 Retention of criminal history records of minors.—
39 (3) The department shall notify the appropriate clerk of
40 the court, the state attorney or statewide prosecutor, the
41 county, and the arresting agency of any criminal history record
42 that is expunged under this section. The arresting agency shall
43 send the department's notification to any other agency to which
44 the arresting agency disseminated the criminal history record
45 information and to which the order pertains. The county shall
46 send the department's notification to any agency, organization,
47 or company to which the county disseminated the criminal history
48 information and to which the order pertains. The department
49 shall send the notification of expungement to the Federal Bureau
50 of Investigation. The clerk of the court shall certify a copy of
51 the department's notification to any other agency that has
52 received the criminal history record, as reflected in the
53 records of the court.
54 (4) Any criminal history record that is expunged by the
55 department under this section must be physically destroyed or
56 obliterated by any criminal justice agency that has custody of
57 the record, except that a criminal history record in the custody
58 of the department must be retained in all cases.
59 Section 2. Section 943.0585, Florida Statutes, is amended
60 to read:
61 943.0585 Court-ordered expunction of criminal history
62 records.—The courts of this state have jurisdiction over their
63 own procedures, including the maintenance, expunction, and
64 correction of judicial records containing criminal history
65 information to the extent such procedures are not inconsistent
66 with the conditions, responsibilities, and duties established by
67 this section. Any court of competent jurisdiction may order a
68 criminal justice agency to expunge the criminal history record
69 of a minor or an adult who complies with the requirements of
70 this section. The court shall not order a criminal justice
71 agency to expunge a criminal history record until the person
72 seeking to expunge a criminal history record has applied for and
73 received a certificate of eligibility for expunction pursuant to
74 subsection (3) (2).
75 (1) PROHIBITION AGAINST EXPUNGING CERTAIN RECORDS.—A
76 criminal history record that relates to a violation of s.
77 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
78 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
79 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
80 916.1075, a violation enumerated in s. 907.041, or any violation
81 specified as a predicate offense for registration as a sexual
82 predator pursuant to s. 775.21, without regard to whether that
83 offense alone is sufficient to require such registration, or for
84 registration as a sexual offender pursuant to s. 943.0435, may
85 not be expunged, without regard to whether adjudication was
86 withheld, if the defendant was found guilty of or pled guilty or
87 nolo contendere to the offense, or if the defendant, as a minor,
88 was found to have committed, or pled guilty or nolo contendere
89 to committing, the offense as a delinquent act even if the
90 adjudication was withheld. The prohibition applies only to cases
91 in which the defendant, including a minor, was found guilty of
92 or pled guilty or nolo contendere to the offense. In all other
93 instances involving the enumerated offenses in this subsection,
94 the record may be expunged if an indictment, information, or
95 other charging document was not filed or issued in the case or,
96 if filed or issued in the case, was dismissed or nolle prosequi
97 by the state attorney or statewide prosecutor or was dismissed
98 by a court of competent jurisdiction, or the person was found
99 not guilty or acquitted by a judge or jury. The court may only
100 order expunction of a criminal history record pertaining to one
101 arrest or one incident of alleged criminal activity, except as
102 provided in this section. The court may, at its sole discretion,
103 order the expunction of a criminal history record pertaining to
104 more than one arrest if the additional arrests directly relate
105 to the original arrest. If the court intends to order the
106 expunction of records pertaining to such additional arrests,
107 such intent must be specified in the order. A criminal justice
108 agency may not expunge any record pertaining to such additional
109 arrests if the order to expunge does not articulate the
110 intention of the court to expunge a record pertaining to more
111 than one arrest. This section does not prevent the court from
112 ordering the expunction of only a portion of a criminal history
113 record pertaining to one arrest or one incident of alleged
114 criminal activity. Notwithstanding any law to the contrary, a
115 criminal justice agency may comply with laws, court orders, and
116 official requests of other jurisdictions relating to expunction,
117 correction, or confidential handling of criminal history records
118 or information derived therefrom. This section does not confer
119 any right to the expunction of any criminal history record, and
120 any request for expunction of a criminal history record may be
121 denied at the sole discretion of the court.
122 (2)(1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
123 petition to a court to expunge a criminal history record is
124 complete only when accompanied by:
125 (a) A valid certificate of eligibility for expunction
126 issued by the department pursuant to subsection (3) (2).
127 (b) The petitioner's sworn statement attesting that the
128 petitioner:
129 1. Has never, before prior to the date on which the
130 petition is filed, been adjudicated guilty of a criminal offense
131 or comparable ordinance violation, or been adjudicated
132 delinquent for committing any felony or a misdemeanor specified
133 in s. 943.051(3)(b).
134 2. Has not been adjudicated guilty of, or adjudicated
135 delinquent for committing, any of the acts stemming from the
136 arrest or alleged criminal activity to which the petition
137 pertains.
138 3. Except as otherwise provided in this section, has never
139 secured a prior sealing or expunction of a criminal history
140 record under this section, former s. 893.14, former s. 901.33,
141 or former s. 943.058, or from any jurisdiction outside the
142 state, unless expunction is sought of a criminal history record
143 previously sealed for 10 years pursuant to paragraph (2)(h) and
144 the record is otherwise eligible for expunction.
145 4. Is eligible for such an expunction to the best of his or
146 her knowledge or belief and does not have any other petition to
147 expunge or any petition to seal pending before any court.
148 A Any person who knowingly provides false information on a such
149 sworn statement to the court commits a felony of the third
150 degree, punishable as provided in s. 775.082, s. 775.083, or s.
151 775.084.
152 (3)(2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Before
153 Prior to petitioning the court to expunge a criminal history
154 record, a person seeking to expunge a criminal history record
155 shall apply to the department for a certificate of eligibility
156 for expunction. The department shall, by rule adopted under
157 pursuant to chapter 120, establish procedures pertaining to the
158 application for and issuance of certificates of eligibility for
159 expunction. A certificate of eligibility for expunction is valid
160 for 12 months after the date stamped on the certificate when
161 issued by the department. After that time, the petitioner must
162 reapply to the department for a new certificate of eligibility.
163 Eligibility for a renewed certification of eligibility must be
164 based on the status of the applicant and the law in effect at
165 the time of the renewal application. The department shall issue
166 a certificate of eligibility for expunction to a person who is
167 the subject of a criminal history record if that person:
168 (a) Has obtained, and submitted to the department, a
169 written, certified statement from the appropriate state attorney
170 or statewide prosecutor which indicates:
171 1. That an indictment, information, or other charging
172 document was not filed or issued in the case.
173 2. That an indictment, information, or other charging
174 document, if filed or issued in the case, was dismissed or nolle
175 prosequi by the state attorney or statewide prosecutor, or was
176 dismissed by a court of competent jurisdiction, or that the
177 person was found not guilty or acquitted by a judge or jury, and
178 that none of the charges related to the arrest or alleged
179 criminal activity to which the petition to expunge pertains
180 resulted in a trial, without regard to whether the outcome of
181 the trial was other than an adjudication of guilt.
182 3. That the criminal history record does not relate to a
183 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
184 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
185 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
186 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
187 any violation specified as a predicate offense for registration
188 as a sexual predator under pursuant to s. 775.21, without regard
189 to whether that offense alone is sufficient to require such
190 registration, or for registration as a sexual offender under
191 pursuant to s. 943.0435, where the defendant was found guilty
192 of, or pled guilty or nolo contendere to any such offense, or
193 that the defendant, as a minor, was found to have committed, or
194 pled guilty or nolo contendere to committing, such an offense as
195 a delinquent act, without regard to whether adjudication was
196 withheld.
197 (b) Remits a $75 processing fee to the department for
198 placement in the Department of Law Enforcement Operating Trust
199 Fund, unless such fee is waived by the executive director.
200 (c) Has submitted to the department a certified copy of the
201 disposition of the charge to which the petition to expunge
202 pertains.
203 (d) Has never, before prior to the date on which the
204 application for a certificate of eligibility is filed, been
205 adjudicated guilty of a criminal offense or comparable ordinance
206 violation, or been adjudicated delinquent for committing any
207 felony or a misdemeanor specified in s. 943.051(3)(b).
208 (e) Has not been adjudicated guilty of, or adjudicated
209 delinquent for committing, any of the acts stemming from the
210 arrest or alleged criminal activity to which the petition to
211 expunge pertains.
212 (f) Has never secured a prior sealing or expunction of a
213 criminal history record under this section, former s. 893.14,
214 former s. 901.33, or former s. 943.058 involving an offense for
215 which the defendant had been found guilty or pled guilty or nolo
216 contendere, unless expunction is sought of a criminal history
217 record previously sealed for 10 years pursuant to paragraph (h)
218 and the record is otherwise eligible for expunction.
219 (g) Is no longer under court supervision applicable to the
220 disposition of the arrest or alleged criminal activity to which
221 the petition to expunge pertains.
222 (h) Has previously obtained a court order sealing the
223 record under this section, former s. 893.14, former s. 901.33,
224 or former s. 943.058 for a minimum of 10 years because
225 adjudication was withheld or because all charges related to the
226 arrest or alleged criminal activity to which the petition to
227 expunge pertains were not dismissed before prior to trial,
228 without regard to whether the outcome of the trial was other
229 than an adjudication of guilt. The requirement for the record to
230 have previously been sealed for a minimum of 10 years does not
231 apply when a plea was not entered or all charges related to the
232 arrest or alleged criminal activity to which the petition to
233 expunge pertains were dismissed prior to trial.
234 (4)(3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
235 (a) In judicial proceedings under this section, a copy of
236 the completed petition to expunge shall be served upon the
237 appropriate state attorney or the statewide prosecutor and upon
238 the arresting agency; however, it is not necessary to make any
239 agency other than the state a party. The appropriate state
240 attorney or the statewide prosecutor and the arresting agency
241 may respond to the court regarding the completed petition to
242 expunge.
243 (b) If relief is granted by the court, the clerk of the
244 court shall certify copies of the order to the appropriate state
245 attorney or the statewide prosecutor, the county, and the
246 arresting agency. The arresting agency is responsible for
247 forwarding the order to any other agency to which the arresting
248 agency disseminated the criminal history record information to
249 which the order pertains. The county is responsible for
250 forwarding the order to any agency, organization, or company to
251 which the county disseminated the criminal history information
252 to which the order pertains. The department shall forward the
253 order to expunge to the Federal Bureau of Investigation. The
254 clerk of the court shall certify a copy of the order to any
255 other agency which the records of the court reflect has received
256 the criminal history record from the court.
257 (c) For an order to expunge entered by a court before prior
258 to July 1, 1992, the department shall notify the appropriate
259 state attorney or statewide prosecutor of an order to expunge
260 which is contrary to law because the person who is the subject
261 of the record has previously been convicted of a crime or
262 comparable ordinance violation or has had a prior criminal
263 history record sealed or expunged. Upon receipt of such notice,
264 the appropriate state attorney or statewide prosecutor shall
265 take action, within 60 days, to correct the record and petition
266 the court to void the order to expunge. The department shall
267 seal the record until such time as the order is voided by the
268 court.
269 (d) On or after July 1, 1992, the department or any other
270 criminal justice agency is not required to act on an order to
271 expunge entered by a court when such order does not comply with
272 the requirements of this section. Upon receipt of such an order,
273 the department must notify the issuing court, the appropriate
274 state attorney or statewide prosecutor, the petitioner or the
275 petitioner's attorney, and the arresting agency of the reason
276 for noncompliance. The appropriate state attorney or statewide
277 prosecutor shall take action within 60 days to correct the
278 record and petition the court to void the order. No cause of
279 action, including contempt of court, shall arise against any
280 criminal justice agency for failure to comply with an order to
281 expunge when the petitioner for such order failed to obtain the
282 certificate of eligibility as required by this section or such
283 order does not otherwise comply with the requirements of this
284 section.
285 (5)(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
286 criminal history record of a minor or an adult which is ordered
287 expunged by a court of competent jurisdiction under pursuant to
288 this section must be physically destroyed or obliterated by any
289 criminal justice agency having custody of such record; except
290 that any criminal history record in the custody of the
291 department must be retained in all cases. A criminal history
292 record ordered expunged that is retained by the department is
293 confidential and exempt from the provisions of s. 119.07(1) and
294 s. 24(a), Art. I of the State Constitution and not available to
295 any person or entity except upon order of a court of competent
296 jurisdiction. A criminal justice agency may retain a notation
297 indicating compliance with an order to expunge.
298 (a) The person who is the subject of a criminal history
299 record that is expunged under this section or under other
300 provisions of law, including former s. 893.14, former s. 901.33,
301 and former s. 943.058, may lawfully deny or fail to acknowledge
302 the arrests covered by the expunged record, except when the
303 subject of the record:
304 1. Is a candidate for employment with a criminal justice
305 agency;
306 2. Is a defendant in a criminal prosecution;
307 3. Concurrently or subsequently petitions for relief under
308 this section or s. 943.059;
309 4. Is a candidate for admission to The Florida Bar;
310 5. Is seeking to be employed or licensed by or to contract
311 with the Department of Children and Family Services, the Agency
312 for Health Care Administration, the Agency for Persons with
313 Disabilities, or the Department of Juvenile Justice or to be
314 employed or used by such contractor or licensee in a sensitive
315 position having direct contact with children, the
316 developmentally disabled, the aged, or the elderly as provided
317 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
318 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
319 chapter 916, s. 985.644, chapter 400, or chapter 429;
320 6. Is seeking to be employed or licensed by the Department
321 of Education, any district school board, any university
322 laboratory school, any charter school, any private or parochial
323 school, or any local governmental entity that licenses child
324 care facilities; or
325 7. Is seeking authorization from a Florida seaport
326 identified in s. 311.09 for employment within or access to one
327 or more of such seaports pursuant to s. 311.12 or s. 311.125.
328 (b) Subject to the exceptions in paragraph (a), a person
329 who has been granted an expunction under this section, former s.
330 893.14, former s. 901.33, or former s. 943.058 may not be held
331 under any provision of law of this state to commit perjury or to
332 be otherwise liable for giving a false statement by reason of
333 such person's failure to recite or acknowledge an expunged
334 criminal history record.
335 (c) Information relating to the existence of an expunged
336 criminal history record which is provided in accordance with
337 paragraph (a) is confidential and exempt from the provisions of
338 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
339 except that the department shall disclose the existence of a
340 criminal history record ordered expunged to the entities set
341 forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
342 respective licensing, access authorization, and employment
343 purposes, and to criminal justice agencies for their respective
344 criminal justice purposes. It is unlawful for any employee of an
345 entity set forth in subparagraph (a)1., subparagraph (a)4.,
346 subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
347 disclose information relating to the existence of an expunged
348 criminal history record of a person seeking employment, access
349 authorization, or licensure with such entity or contractor,
350 except to the person to whom the criminal history record relates
351 or to persons having direct responsibility for employment,
352 access authorization, or licensure decisions. Any person who
353 violates this paragraph commits a misdemeanor of the first
354 degree, punishable as provided in s. 775.082 or s. 775.083.
355 (d) An agency, organization, or company to which the
356 county, department, or arresting agency disseminated the
357 criminal history information and which has received the order
358 expunging the record may not release the expunged information to
359 the public after 30 days following the date that it receives the
360 court order expunging the record.
361 (6)(5) STATUTORY REFERENCES.—Any reference to any other
362 chapter, section, or subdivision of the Florida Statutes in this
363 section constitutes a general reference under the doctrine of
364 incorporation by reference.
365 Section 3. Section 943.059, Florida Statutes, is amended to
366 read:
367 943.059 Court-ordered sealing of criminal history records.
368 The courts of this state shall continue to have jurisdiction
369 over their own procedures, including the maintenance, sealing,
370 and correction of judicial records containing criminal history
371 information to the extent such procedures are not inconsistent
372 with the conditions, responsibilities, and duties established by
373 this section. Any court of competent jurisdiction may order a
374 criminal justice agency to seal the criminal history record of a
375 minor or an adult who complies with the requirements of this
376 section. The court may shall not order a criminal justice agency
377 to seal a criminal history record until the person seeking to
378 seal a criminal history record has applied for and received a
379 certificate of eligibility for sealing pursuant to subsection
380 (3) (2).
381 (1) PROHIBITION AGAINST SEALING CERTAIN RECORDS.—A criminal
382 history record that relates to a violation of s. 393.135, s.
383 394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s.
384 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.
385 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a
386 violation enumerated in s. 907.041, or any violation specified
387 as a predicate offense for registration as a sexual predator
388 pursuant to s. 775.21, without regard to whether that offense
389 alone is sufficient to require such registration, or for
390 registration as a sexual offender pursuant to s. 943.0435, may
391 not be sealed, without regard to whether adjudication was
392 withheld, if the defendant was found guilty of or pled guilty or
393 nolo contendere to the offense, or if the defendant, as a minor,
394 was found to have committed or pled guilty or nolo contendere to
395 committing the offense as a delinquent act even if the
396 adjudication was withheld. The prohibition applies only to cases
397 in which the defendant, including a minor, was found guilty of
398 or pled guilty or nolo contendere to the offense. In all other
399 instances involving the enumerated offenses in this subsection,
400 the record may be sealed if an indictment, information, or other
401 charging document was not filed or issued in the case or, if
402 filed or issued in the case, was dismissed or nolle prosequi by
403 the state attorney or statewide prosecutor or was dismissed by a
404 court of competent jurisdiction, or the person was found not
405 guilty or acquitted by a judge or jury. The court may only order
406 sealing of a criminal history record pertaining to one arrest or
407 one incident of alleged criminal activity, except as provided in
408 this section. The court may, at its sole discretion, order the
409 sealing of a criminal history record pertaining to more than one
410 arrest if the additional arrests directly relate to the original
411 arrest. If the court intends to order the sealing of records
412 pertaining to such additional arrests, such intent must be
413 specified in the order. A criminal justice agency may not seal
414 any record pertaining to such additional arrests if the order to
415 seal does not articulate the intention of the court to seal
416 records pertaining to more than one arrest. This section does
417 not prevent the court from ordering the sealing of only a
418 portion of a criminal history record pertaining to one arrest or
419 one incident of alleged criminal activity. Notwithstanding any
420 law to the contrary, a criminal justice agency may comply with
421 laws, court orders, and official requests of other jurisdictions
422 relating to sealing, correction, or confidential handling of
423 criminal history records or information derived therefrom. This
424 section does not confer any right to the sealing of any criminal
425 history record, and any request for sealing a criminal history
426 record may be denied at the sole discretion of the court.
427 (2)(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
428 petition to a court to seal a criminal history record is
429 complete only when accompanied by:
430 (a) A valid certificate of eligibility for sealing issued
431 by the department pursuant to subsection (3) (2).
432 (b) The petitioner's sworn statement attesting that the
433 petitioner:
434 1. Has never, before prior to the date on which the
435 petition is filed, been adjudicated guilty of a criminal offense
436 or comparable ordinance violation, or been adjudicated
437 delinquent for committing any felony or a misdemeanor specified
438 in s. 943.051(3)(b).
439 2. Has not been adjudicated guilty of or adjudicated
440 delinquent for committing any of the acts stemming from the
441 arrest or alleged criminal activity to which the petition to
442 seal pertains.
443 3. Except as otherwise provided in this section, has never
444 secured a prior sealing or expunction of a criminal history
445 record under this section, former s. 893.14, former s. 901.33,
446 former s. 943.058, or from any jurisdiction outside the state.
447 4. Is eligible for such a sealing to the best of his or her
448 knowledge or belief and does not have any other petition to seal
449 or any petition to expunge pending before any court.
450 A Any person who knowingly provides false information on a such
451 sworn statement to the court commits a felony of the third
452 degree, punishable as provided in s. 775.082, s. 775.083, or s.
453 775.084.
454 (3)(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Before Prior
455 to petitioning the court to seal a criminal history record, a
456 person seeking to seal a criminal history record shall apply to
457 the department for a certificate of eligibility for sealing. The
458 department shall, by rule adopted pursuant to chapter 120,
459 establish procedures pertaining to the application for and
460 issuance of certificates of eligibility for sealing. A
461 certificate of eligibility for sealing is valid for 12 months
462 after the date stamped on the certificate when issued by the
463 department. After that time, the petitioner must reapply to the
464 department for a new certificate of eligibility. Eligibility for
465 a renewed certification of eligibility must be based on the
466 status of the applicant and the law in effect at the time of the
467 renewal application. The department shall issue a certificate of
468 eligibility for sealing to a person who is the subject of a
469 criminal history record provided that such person:
470 (a) Has submitted to the department a certified copy of the
471 disposition of the charge to which the petition to seal
472 pertains.
473 (b) Remits a $75 processing fee to the department for
474 placement in the Department of Law Enforcement Operating Trust
475 Fund, unless such fee is waived by the executive director.
476 (c) Has never, before prior to the date on which the
477 application for a certificate of eligibility is filed, been
478 adjudicated guilty of a criminal offense or comparable ordinance
479 violation, or been adjudicated delinquent for committing any
480 felony or a misdemeanor specified in s. 943.051(3)(b).
481 (d) Has not been adjudicated guilty of or adjudicated
482 delinquent for committing any of the acts stemming from the
483 arrest or alleged criminal activity to which the petition to
484 seal pertains.
485 (e) Has never secured a prior sealing or expunction of a
486 criminal history record under this section, former s. 893.14,
487 former s. 901.33, or former s. 943.058 involving an offense for
488 which the defendant had been found guilty or pled guilty or nolo
489 contendere.
490 (f) Is no longer under court supervision applicable to the
491 disposition of the arrest or alleged criminal activity to which
492 the petition to seal pertains.
493 (4)(3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
494 (a) In judicial proceedings under this section, a copy of
495 the completed petition to seal shall be served upon the
496 appropriate state attorney or the statewide prosecutor and upon
497 the arresting agency; however, it is not necessary to make any
498 agency other than the state a party. The appropriate state
499 attorney or the statewide prosecutor and the arresting agency
500 may respond to the court regarding the completed petition to
501 seal.
502 (b) If relief is granted by the court, the clerk of the
503 court shall certify copies of the order to the appropriate state
504 attorney or the statewide prosecutor, the county, and to the
505 arresting agency. The arresting agency is responsible for
506 forwarding the order to any other agency to which the arresting
507 agency disseminated the criminal history record information to
508 which the order pertains. The county is responsible for
509 forwarding the order to any agency, organization, or company to
510 which the county disseminated the criminal history information
511 to which the order pertains. The department shall forward the
512 order to seal to the Federal Bureau of Investigation. The clerk
513 of the court shall certify a copy of the order to any other
514 agency which the records of the court reflect has received the
515 criminal history record from the court.
516 (c) For an order to seal entered by a court before prior to
517 July 1, 1992, the department shall notify the appropriate state
518 attorney or statewide prosecutor of any order to seal which is
519 contrary to law because the person who is the subject of the
520 record has previously been convicted of a crime or comparable
521 ordinance violation or has had a prior criminal history record
522 sealed or expunged. Upon receipt of such notice, the appropriate
523 state attorney or statewide prosecutor shall take action, within
524 60 days, to correct the record and petition the court to void
525 the order to seal. The department shall seal the record until
526 such time as the order is voided by the court.
527 (d) On or after July 1, 1992, the department or any other
528 criminal justice agency is not required to act on an order to
529 seal entered by a court when such order does not comply with the
530 requirements of this section. Upon receipt of such an order, the
531 department must notify the issuing court, the appropriate state
532 attorney or statewide prosecutor, the petitioner or the
533 petitioner's attorney, and the arresting agency of the reason
534 for noncompliance. The appropriate state attorney or statewide
535 prosecutor shall take action within 60 days to correct the
536 record and petition the court to void the order. No cause of
537 action, including contempt of court, shall arise against any
538 criminal justice agency for failure to comply with an order to
539 seal when the petitioner for such order failed to obtain the
540 certificate of eligibility as required by this section or when
541 such order does not comply with the requirements of this
542 section.
543 (e) An order sealing a criminal history record under
544 pursuant to this section does not require that such record be
545 surrendered to the court, and such record shall continue to be
546 maintained by the department and other criminal justice
547 agencies.
548 (f) An agency, organization, or company to which the
549 county, department, or arresting agency disseminated the
550 criminal history information and which has received the order
551 sealing the record may not release the sealed information to the
552 public after 30 days following the date that it receives the
553 court order sealing the record.
554 (5)(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A
555 criminal history record of a minor or an adult which is ordered
556 sealed by a court of competent jurisdiction pursuant to this
557 section is confidential and exempt from the provisions of s.
558 119.07(1) and s. 24(a), Art. I of the State Constitution and is
559 available only to the person who is the subject of the record,
560 to the subject's attorney, to criminal justice agencies for
561 their respective criminal justice purposes, which include
562 conducting a criminal history background check for approval of
563 firearms purchases or transfers as authorized by state or
564 federal law, to judges in the state courts system for the
565 purpose of assisting them in their case-related decisionmaking
566 responsibilities, as set forth in s. 943.053(5), or to those
567 entities set forth in subparagraphs (a)1., 4., 5., 6., and 8.
568 for their respective licensing, access authorization, and
569 employment purposes.
570 (a) The subject of a criminal history record sealed under
571 this section or under other provisions of law, including former
572 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
573 deny or fail to acknowledge the arrests covered by the sealed
574 record, except when the subject of the record:
575 1. Is a candidate for employment with a criminal justice
576 agency;
577 2. Is a defendant in a criminal prosecution;
578 3. Concurrently or subsequently petitions for relief under
579 this section or s. 943.0585;
580 4. Is a candidate for admission to The Florida Bar;
581 5. Is seeking to be employed or licensed by or to contract
582 with the Department of Children and Family Services, the Agency
583 for Health Care Administration, the Agency for Persons with
584 Disabilities, or the Department of Juvenile Justice or to be
585 employed or used by such contractor or licensee in a sensitive
586 position having direct contact with children, the
587 developmentally disabled, the aged, or the elderly as provided
588 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
589 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
590 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
591 6. Is seeking to be employed or licensed by the Department
592 of Education, any district school board, any university
593 laboratory school, any charter school, any private or parochial
594 school, or any local governmental entity that licenses child
595 care facilities;
596 7. Is attempting to purchase a firearm from a licensed
597 importer, licensed manufacturer, or licensed dealer and is
598 subject to a criminal history background check under state or
599 federal law; or
600 8. Is seeking authorization from a Florida seaport
601 identified in s. 311.09 for employment within or access to one
602 or more of such seaports pursuant to s. 311.12 or s. 311.125.
603 (b) Subject to the exceptions in paragraph (a), a person
604 who has been granted a sealing under this section, former s.
605 893.14, former s. 901.33, or former s. 943.058 may not be held
606 under any provision of law of this state to commit perjury or to
607 be otherwise liable for giving a false statement by reason of
608 such person's failure to recite or acknowledge a sealed criminal
609 history record.
610 (c) Information relating to the existence of a sealed
611 criminal record provided in accordance with the provisions of
612 paragraph (a) is confidential and exempt from the provisions of
613 s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
614 except that the department shall disclose the sealed criminal
615 history record to the entities set forth in subparagraphs (a)1.,
616 4., 5., 6., and 8. for their respective licensing, access
617 authorization, and employment purposes. It is unlawful for any
618 employee of an entity set forth in subparagraph (a)1.,
619 subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
620 subparagraph (a)8. to disclose information relating to the
621 existence of a sealed criminal history record of a person
622 seeking employment, access authorization, or licensure with such
623 entity or contractor, except to the person to whom the criminal
624 history record relates or to persons having direct
625 responsibility for employment, access authorization, or
626 licensure decisions. Any person who violates the provisions of
627 this paragraph commits a misdemeanor of the first degree,
628 punishable as provided in s. 775.082 or s. 775.083.
629 (6)(5) STATUTORY REFERENCES.—Any reference to any other
630 chapter, section, or subdivision of the Florida Statutes in this
631 section constitutes a general reference under the doctrine of
632 incorporation by reference.
633 Section 4. Paragraph (a) of subsection (2) of section
634 943.0582, Florida Statutes, is amended to read:
635 943.0582 Prearrest, postarrest, or teen court diversion
636 program expunction.—
637 (2)(a) As used in this section, the term “expunction” has
638 the same meaning ascribed in and effect as s. 943.0585, except
639 that:
640 1. The provisions of s. 943.0585(5)(a) s. 943.0585(4)(a) do
641 not apply, except that the criminal history record of a person
642 whose record is expunged pursuant to this section shall be made
643 available only to criminal justice agencies for the purpose of
644 determining eligibility for prearrest, postarrest, or teen court
645 diversion programs; when the record is sought as part of a
646 criminal investigation; or when the subject of the record is a
647 candidate for employment with a criminal justice agency. For all
648 other purposes, a person whose record is expunged under this
649 section may lawfully deny or fail to acknowledge the arrest and
650 the charge covered by the expunged record.
651 2. Records maintained by local criminal justice agencies in
652 the county in which the arrest occurred that are eligible for
653 expunction under pursuant to this section must shall be sealed
654 as the term is used in s. 943.059.
655 Section 5. This act shall take effect July 1, 2009.