Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 1402
       
       
       
       
       
       
                                Barcode 589598                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/12/2011           .                                
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       The Committee on Criminal Justice (Smith) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. This act may be cited as the “Jim King Keep
    6  Florida Working Act.”
    7         Section 2. Paragraph (b) of subsection (1), paragraph (f)
    8  of subsection (2), paragraph (c) of subsection (3), and
    9  subsection (4) of section 943.0585, Florida Statutes, are
   10  amended, subsection (5) of that section is renumbered as
   11  subsection (7), and a new subsection (5) and subsection (6) are
   12  added to that section, to read:
   13         943.0585 Court-ordered expunction of criminal history
   14  records.—The courts of this state have jurisdiction over their
   15  own procedures, including the maintenance, expunction, and
   16  correction of judicial records containing criminal history
   17  information to the extent such procedures are not inconsistent
   18  with the conditions, responsibilities, and duties established by
   19  this section. Any court of competent jurisdiction may order a
   20  criminal justice agency to expunge the criminal history record
   21  of a minor or an adult who complies with the requirements of
   22  this section. The court shall not order a criminal justice
   23  agency to expunge a criminal history record until the person
   24  seeking to expunge a criminal history record has applied for and
   25  received a certificate of eligibility for expunction pursuant to
   26  subsection (2). A criminal history record that relates to a
   27  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
   28  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
   29  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
   30  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
   31  any violation specified as a predicate offense for registration
   32  as a sexual predator pursuant to s. 775.21, without regard to
   33  whether that offense alone is sufficient to require such
   34  registration, or for registration as a sexual offender pursuant
   35  to s. 943.0435, may not be expunged, without regard to whether
   36  adjudication was withheld, if the defendant was found guilty of
   37  or pled guilty or nolo contendere to the offense, or if the
   38  defendant, as a minor, was found to have committed, or pled
   39  guilty or nolo contendere to committing, the offense as a
   40  delinquent act. The court may only order expunction of a
   41  criminal history record pertaining to one arrest or one incident
   42  of alleged criminal activity, except as provided in this
   43  section. The court may, at its sole discretion, order the
   44  expunction of a criminal history record pertaining to more than
   45  one arrest if the additional arrests directly relate to the
   46  original arrest. If the court intends to order the expunction of
   47  records pertaining to such additional arrests, such intent must
   48  be specified in the order. A criminal justice agency may not
   49  expunge any record pertaining to such additional arrests if the
   50  order to expunge does not articulate the intention of the court
   51  to expunge a record pertaining to more than one arrest. This
   52  section does not prevent the court from ordering the expunction
   53  of only a portion of a criminal history record pertaining to one
   54  arrest or one incident of alleged criminal activity.
   55  Notwithstanding any law to the contrary, a criminal justice
   56  agency may comply with laws, court orders, and official requests
   57  of other jurisdictions relating to expunction, correction, or
   58  confidential handling of criminal history records or information
   59  derived therefrom. This section does not confer any right to the
   60  expunction of any criminal history record, and any request for
   61  expunction of a criminal history record may be denied at the
   62  sole discretion of the court.
   63         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
   64  petition to a court to expunge a criminal history record is
   65  complete only when accompanied by:
   66         (b) The petitioner’s sworn statement attesting that the
   67  petitioner:
   68         1. Has never, prior to the date on which the petition is
   69  filed, been adjudicated guilty of a criminal offense or
   70  comparable ordinance violation, or been adjudicated delinquent
   71  for committing any felony or a misdemeanor specified in s.
   72  943.051(3)(b).
   73         2. Has not been adjudicated guilty of, or adjudicated
   74  delinquent for committing, any of the acts stemming from the
   75  arrest or alleged criminal activity to which the petition
   76  pertains.
   77         3. Has never secured a prior sealing or expunction, except
   78  as provided in subsection (5) and s. 943.059(5), of a criminal
   79  history record under this section, former s. 893.14, former s.
   80  901.33, or former s. 943.058, or from any jurisdiction outside
   81  the state, unless expunction is sought of a criminal history
   82  record previously sealed for 10 years pursuant to paragraph
   83  (2)(h) and the record is otherwise eligible for expunction.
   84         4. Is eligible for such an expunction to the best of his or
   85  her knowledge or belief and does not have any other petition to
   86  expunge or any petition to seal pending before any court.
   87  
   88  Any person who knowingly provides false information on such
   89  sworn statement to the court commits a felony of the third
   90  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   91  775.084.
   92         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
   93  petitioning the court to expunge a criminal history record, a
   94  person seeking to expunge a criminal history record shall apply
   95  to the department for a certificate of eligibility for
   96  expunction. The department shall, by rule adopted pursuant to
   97  chapter 120, establish procedures pertaining to the application
   98  for and issuance of certificates of eligibility for expunction.
   99  A certificate of eligibility for expunction is valid for 12
  100  months after the date stamped on the certificate when issued by
  101  the department. After that time, the petitioner must reapply to
  102  the department for a new certificate of eligibility. Eligibility
  103  for a renewed certification of eligibility must be based on the
  104  status of the applicant and the law in effect at the time of the
  105  renewal application. The department shall issue a certificate of
  106  eligibility for expunction to a person who is the subject of a
  107  criminal history record if that person:
  108         (f) Has never secured a prior sealing or expunction, except
  109  as provided in subsection (5) and s. 943.059(5), of a criminal
  110  history record under this section, former s. 893.14, former s.
  111  901.33, or former s. 943.058, unless expunction is sought of a
  112  criminal history record previously sealed for 10 years pursuant
  113  to paragraph (h) and the record is otherwise eligible for
  114  expunction.
  115         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  116         (c) For an order to expunge entered by a court prior to
  117  July 1, 1992, the department shall notify the appropriate state
  118  attorney or statewide prosecutor of an order to expunge which is
  119  contrary to law because the person who is the subject of the
  120  record has previously been convicted of a crime or comparable
  121  ordinance violation or has had a prior criminal history record
  122  sealed or expunged, except as provided in subsection (5) and s.
  123  943.059(5). Upon receipt of such notice, the appropriate state
  124  attorney or statewide prosecutor shall take action, within 60
  125  days, to correct the record and petition the court to void the
  126  order to expunge. The department shall seal the record until
  127  such time as the order is voided by the court.
  128         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  129  criminal history record of a minor or an adult which is ordered
  130  expunged by a court of competent jurisdiction pursuant to this
  131  section must be physically destroyed or obliterated by any
  132  criminal justice agency having custody of such record; except
  133  that any criminal history record in the custody of the
  134  department must be retained in all cases. A criminal history
  135  record ordered expunged that is retained by the department is
  136  confidential and exempt from the provisions of s. 119.07(1) and
  137  s. 24(a), Art. I of the State Constitution and not available to
  138  any person or entity except upon order of a court of competent
  139  jurisdiction. A criminal justice agency may retain a notation
  140  indicating compliance with an order to expunge.
  141         (a) The person who is the subject of a criminal history
  142  record that is expunged under this section or under other
  143  provisions of law, including former s. 893.14, former s. 901.33,
  144  and former s. 943.058, may lawfully deny or fail to acknowledge
  145  the arrests and subsequent dispositions covered by the expunged
  146  record, except when the subject of the record:
  147         1. Is a candidate for employment with a criminal justice
  148  agency;
  149         2. Is a defendant in a criminal prosecution;
  150         3. Concurrently or subsequently petitions for relief under
  151  this section or s. 943.059;
  152         4. Is a candidate for admission to The Florida Bar;
  153         5. Is seeking to be employed or licensed by or to contract
  154  with the Department of Children and Family Services, the Agency
  155  for Health Care Administration, the Agency for Persons with
  156  Disabilities, or the Department of Juvenile Justice or to be
  157  employed or used by such contractor or licensee in a sensitive
  158  position having direct contact with children, the
  159  developmentally disabled, the aged, or the elderly as provided
  160  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  161  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5),
  162  chapter 916, s. 985.644, chapter 400, or chapter 429;
  163         6. Is seeking to be employed or licensed by the Department
  164  of Education, any district school board, any university
  165  laboratory school, any charter school, any private or parochial
  166  school, or any local governmental entity that licenses child
  167  care facilities; or
  168         7. Is seeking authorization from a seaport listed in s.
  169  311.09 for employment within or access to one or more of such
  170  seaports pursuant to s. 311.12.
  171         (b) Subject to the exceptions in paragraph (a), a person
  172  who has been granted an expunction under this section, former s.
  173  893.14, former s. 901.33, or former s. 943.058 may not be held
  174  under any provision of law of this state to commit perjury or to
  175  be otherwise liable for giving a false statement by reason of
  176  such person’s failure to recite or acknowledge an expunged
  177  criminal history record, including failure to recite or
  178  acknowledge such information on an employment application.
  179         (c) Information relating to the existence of an expunged
  180  criminal history record which is provided in accordance with
  181  paragraph (a) is confidential and exempt from the provisions of
  182  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  183  except that the department shall disclose the existence of a
  184  criminal history record ordered expunged to the entities set
  185  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  186  respective licensing, access authorization, and employment
  187  purposes, and to criminal justice agencies for their respective
  188  criminal justice purposes. It is unlawful for any employee of an
  189  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  190  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  191  disclose information relating to the existence of an expunged
  192  criminal history record of a person seeking employment, access
  193  authorization, or licensure with such entity or contractor,
  194  except to the person to whom the criminal history record relates
  195  or to persons having direct responsibility for employment,
  196  access authorization, or licensure decisions. Any person who
  197  violates this paragraph commits a misdemeanor of the first
  198  degree, punishable as provided in s. 775.082 or s. 775.083.
  199         (d) The department may disclose the contents of an expunged
  200  record to the subject of the record upon receipt of a written,
  201  notarized request from the subject of the record.
  202         (5) EXPUNCTION OF CRIMINAL HISTORY RECORD AFTER PRIOR
  203  SEALING OR EXPUNCTION.—
  204         (a) A court may expunge a person’s criminal history record
  205  after a prior criminal history record has been sealed or
  206  expunged only if the person obtains a certificate from the
  207  department to expunge the criminal history record. The
  208  department may issue the certificate for a second expunction
  209  only if:
  210         1. The person has had only one prior expunction of his or
  211  her criminal history record under this section or one prior
  212  expunction following the sealing of the same arrest or alleged
  213  criminal activity that was expunged;
  214         2. The person has not been arrested in this state during
  215  the 10-year period prior to the date on which the application
  216  for the certificate is filed; and
  217         3. The person has not previously sealed or expunged a
  218  criminal history record that involved the same offense to which
  219  the petition to expunge pertains.
  220         (b) All other provisions and requirements of this section
  221  apply to an application to expunge a second criminal history
  222  record.
  223         (6) INFORMATION.—Each website for the office of a clerk of
  224  court must include information relating to procedures to seal or
  225  expunge criminal history records. This information must include
  226  a link to related information on the department’s website.
  227         Section 3. Paragraph (b) of subsection (1), paragraph (e)
  228  of subsection (2), paragraph (c) of subsection (3), and
  229  paragraphs (a) and (b) of subsection (4) of section 943.059,
  230  Florida Statutes, are amended, subsection (5) is renumbered as
  231  subsection (6), and a new subsection (5) is added to that
  232  section, to read:
  233         943.059 Court-ordered sealing of criminal history records.
  234  The courts of this state shall continue to have jurisdiction
  235  over their own procedures, including the maintenance, sealing,
  236  and correction of judicial records containing criminal history
  237  information to the extent such procedures are not inconsistent
  238  with the conditions, responsibilities, and duties established by
  239  this section. Any court of competent jurisdiction may order a
  240  criminal justice agency to seal the criminal history record of a
  241  minor or an adult who complies with the requirements of this
  242  section. The court shall not order a criminal justice agency to
  243  seal a criminal history record until the person seeking to seal
  244  a criminal history record has applied for and received a
  245  certificate of eligibility for sealing pursuant to subsection
  246  (2). A criminal history record that relates to a violation of s.
  247  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  248  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  249  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  250  916.1075, a violation enumerated in s. 907.041, or any violation
  251  specified as a predicate offense for registration as a sexual
  252  predator pursuant to s. 775.21, without regard to whether that
  253  offense alone is sufficient to require such registration, or for
  254  registration as a sexual offender pursuant to s. 943.0435, may
  255  not be sealed, without regard to whether adjudication was
  256  withheld, if the defendant was found guilty of or pled guilty or
  257  nolo contendere to the offense, or if the defendant, as a minor,
  258  was found to have committed or pled guilty or nolo contendere to
  259  committing the offense as a delinquent act. The court may only
  260  order sealing of a criminal history record pertaining to one
  261  arrest or one incident of alleged criminal activity, except as
  262  provided in this section. The court may, at its sole discretion,
  263  order the sealing of a criminal history record pertaining to
  264  more than one arrest if the additional arrests directly relate
  265  to the original arrest. If the court intends to order the
  266  sealing of records pertaining to such additional arrests, such
  267  intent must be specified in the order. A criminal justice agency
  268  may not seal any record pertaining to such additional arrests if
  269  the order to seal does not articulate the intention of the court
  270  to seal records pertaining to more than one arrest. This section
  271  does not prevent the court from ordering the sealing of only a
  272  portion of a criminal history record pertaining to one arrest or
  273  one incident of alleged criminal activity. Notwithstanding any
  274  law to the contrary, a criminal justice agency may comply with
  275  laws, court orders, and official requests of other jurisdictions
  276  relating to sealing, correction, or confidential handling of
  277  criminal history records or information derived therefrom. This
  278  section does not confer any right to the sealing of any criminal
  279  history record, and any request for sealing a criminal history
  280  record may be denied at the sole discretion of the court.
  281         (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
  282  petition to a court to seal a criminal history record is
  283  complete only when accompanied by:
  284         (b) The petitioner’s sworn statement attesting that the
  285  petitioner:
  286         1. Has never, prior to the date on which the petition is
  287  filed, been adjudicated guilty of a criminal offense or
  288  comparable ordinance violation, or been adjudicated delinquent
  289  for committing any felony or a misdemeanor specified in s.
  290  943.051(3)(b).
  291         2. Has not been adjudicated guilty of or adjudicated
  292  delinquent for committing any of the acts stemming from the
  293  arrest or alleged criminal activity to which the petition to
  294  seal pertains.
  295         3. Has never secured a prior sealing or expunction, except
  296  as provided in subsection (5), of a criminal history record
  297  under this section, former s. 893.14, former s. 901.33, former
  298  s. 943.058, or from any jurisdiction outside the state.
  299         4. Is eligible for such a sealing to the best of his or her
  300  knowledge or belief and does not have any other petition to seal
  301  or any petition to expunge pending before any court.
  302  
  303  Any person who knowingly provides false information on such
  304  sworn statement to the court commits a felony of the third
  305  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  306  775.084.
  307         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
  308  petitioning the court to seal a criminal history record, a
  309  person seeking to seal a criminal history record shall apply to
  310  the department for a certificate of eligibility for sealing. The
  311  department shall, by rule adopted pursuant to chapter 120,
  312  establish procedures pertaining to the application for and
  313  issuance of certificates of eligibility for sealing. A
  314  certificate of eligibility for sealing is valid for 12 months
  315  after the date stamped on the certificate when issued by the
  316  department. After that time, the petitioner must reapply to the
  317  department for a new certificate of eligibility. Eligibility for
  318  a renewed certification of eligibility must be based on the
  319  status of the applicant and the law in effect at the time of the
  320  renewal application. The department shall issue a certificate of
  321  eligibility for sealing to a person who is the subject of a
  322  criminal history record provided that such person:
  323         (e) Has never secured a prior sealing or expunction, except
  324  as provided in subsection (5), of a criminal history record
  325  under this section, former s. 893.14, former s. 901.33, or
  326  former s. 943.058.
  327         (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
  328         (c) For an order to seal entered by a court prior to July
  329  1, 1992, the department shall notify the appropriate state
  330  attorney or statewide prosecutor of any order to seal which is
  331  contrary to law because the person who is the subject of the
  332  record has previously been convicted of a crime or comparable
  333  ordinance violation or has had a prior criminal history record
  334  sealed or expunged, except as provided in subsection (5). Upon
  335  receipt of such notice, the appropriate state attorney or
  336  statewide prosecutor shall take action, within 60 days, to
  337  correct the record and petition the court to void the order to
  338  seal. The department shall seal the record until such time as
  339  the order is voided by the court.
  340         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  341  history record of a minor or an adult which is ordered sealed by
  342  a court of competent jurisdiction pursuant to this section is
  343  confidential and exempt from the provisions of s. 119.07(1) and
  344  s. 24(a), Art. I of the State Constitution and is available only
  345  to the person who is the subject of the record, to the subject’s
  346  attorney, to criminal justice agencies for their respective
  347  criminal justice purposes, which include conducting a criminal
  348  history background check for approval of firearms purchases or
  349  transfers as authorized by state or federal law, to judges in
  350  the state courts system for the purpose of assisting them in
  351  their case-related decisionmaking responsibilities, as set forth
  352  in s. 943.053(5), or to those entities set forth in
  353  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  354  licensing, access authorization, and employment purposes.
  355         (a) The subject of a criminal history record sealed under
  356  this section or under other provisions of law, including former
  357  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  358  deny or fail to acknowledge the arrests and subsequent
  359  dispositions covered by the sealed record, except when the
  360  subject of the record:
  361         1. Is a candidate for employment with a criminal justice
  362  agency;
  363         2. Is a defendant in a criminal prosecution;
  364         3. Concurrently or subsequently petitions for relief under
  365  this section or s. 943.0585;
  366         4. Is a candidate for admission to The Florida Bar;
  367         5. Is seeking to be employed or licensed by or to contract
  368  with the Department of Children and Family Services, the Agency
  369  for Health Care Administration, the Agency for Persons with
  370  Disabilities, or the Department of Juvenile Justice or to be
  371  employed or used by such contractor or licensee in a sensitive
  372  position having direct contact with children, the
  373  developmentally disabled, the aged, or the elderly as provided
  374  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  375  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), s.
  376  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
  377         6. Is seeking to be employed or licensed by the Department
  378  of Education, any district school board, any university
  379  laboratory school, any charter school, any private or parochial
  380  school, or any local governmental entity that licenses child
  381  care facilities;
  382         7. Is attempting to purchase a firearm from a licensed
  383  importer, licensed manufacturer, or licensed dealer and is
  384  subject to a criminal history check under state or federal law;
  385  or
  386         8. Is seeking authorization from a Florida seaport
  387  identified in s. 311.09 for employment within or access to one
  388  or more of such seaports pursuant to s. 311.12.
  389         (b) Subject to the exceptions in paragraph (a), a person
  390  who has been granted a sealing under this section, former s.
  391  893.14, former s. 901.33, or former s. 943.058 may not be held
  392  under any provision of law of this state to commit perjury or to
  393  be otherwise liable for giving a false statement by reason of
  394  such person’s failure to recite or acknowledge a sealed criminal
  395  history record, including failure to recite or acknowledge such
  396  information on an employment application.
  397         (5) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
  398  OR EXPUNCTION.—
  399         (a) A court may seal a person’s criminal history record
  400  after a prior criminal history record has been sealed or
  401  expunged only if the person obtains a certificate from the
  402  department to seal the criminal history record. The department
  403  may issue the certificate for a second sealing only if:
  404         1. The person has had only one prior expunction or sealing
  405  of his or her criminal history record under s. 943.0585 or this
  406  section or one prior expunction following the sealing of the
  407  same arrest or alleged criminal activity that was expunged;
  408         2. The person has not been arrested in this state during
  409  the 5-year period prior to the date on which the application for
  410  the certificate is filed; and
  411         3. The person has not previously sealed or expunged a
  412  criminal history record that involved the same offense to which
  413  the petition to seal pertains.
  414         (b) All other provisions and requirements of this section
  415  apply to an application to seal a second criminal history
  416  record.
  417         Section 4. This act shall take effect July 1, 2011.
  418  
  419  ================= T I T L E A M E N D M E N T ================
  420  And the title is amended as follows:
  421  
  422         Delete everything before the enacting clause
  423  and insert:
  424                        A bill to be entitled                      
  425         An act relating to criminal history records; providing
  426         a short title; amending s. 943.0585, F.S.; authorizing
  427         a court to expunge a criminal history record of a
  428         person who had a prior criminal history record sealed
  429         or expunged in certain circumstances; authorizing a
  430         person to lawfully deny or fail to acknowledge the
  431         arrests and subsequent dispositions of an expunged
  432         record under certain circumstances; providing that a
  433         person may fail to recite or acknowledge an expunged
  434         criminal history record on an employment application
  435         without committing certain violations; authorizing the
  436         Department of Law Enforcement to disclose the contents
  437         of an expunged record to the subject of the record
  438         upon the subject’s request; providing requirements for
  439         a second expunction; requiring the website of a clerk
  440         of court to include information relating to sealing
  441         and expunction procedures and a link to related
  442         information on the department’s website; amending s.
  443         943.059, F.S.; authorizing a court to seal a criminal
  444         history record of a person who had a prior criminal
  445         history record sealed or expunged in certain
  446         circumstances; authorizing a person to lawfully deny
  447         or fail to acknowledge the arrests and subsequent
  448         dispositions of a sealed record under certain
  449         circumstances; providing that a person may fail to
  450         recite or acknowledge a sealed criminal history record
  451         on an employment application without committing
  452         certain violations; providing requirements for a
  453         second sealing; providing an effective date.