Florida Senate - 2013                                    SB 1644
       
       
       
       By Senator Flores
       
       
       
       
       37-01323C-13                                          20131644__
    1                        A bill to be entitled                      
    2         An act relating to victims of human trafficking;
    3         creating s. 943.0583, F.S.; providing definitions;
    4         providing for the expungement of the criminal history
    5         record of a victim of human trafficking; designating
    6         what offenses may be expunged; providing exceptions;
    7         providing that an expunged conviction is deemed to
    8         have been vacated due to a substantive defect in the
    9         underlying criminal proceedings; providing for a
   10         period in which such expungement must be sought;
   11         providing that official documentation of the victim’s
   12         status as a human trafficking victim creates a
   13         presumption; providing a standard of proof absent
   14         official documentation; providing requirements for
   15         petitions; providing criminal penalties for false
   16         statements on such petitions; providing for parties to
   17         and service of such petitions; providing for
   18         electronic appearances of petitioners and attorneys at
   19         hearings; providing for orders of relief; providing
   20         for physical destruction of certain records;
   21         authorizing a person whose records are expunged to
   22         lawfully deny or fail to acknowledge the arrests
   23         covered by the expunged record; providing that such
   24         lawful denial does not constitute perjury or subject
   25         the person to liability; providing that cross
   26         references are considered general reference for the
   27         purpose of incorporation by reference; amending ss.
   28         943.0582, 943.0585, 943.059, and 961.06, F.S.;
   29         conforming provisions to changes made by the act;
   30         providing an effective date.
   31  
   32         WHEREAS, victims of trafficking may be forced to engage in
   33  a variety of illegal acts beyond prostitution, and
   34         WHEREAS, trafficked persons are not always recognized as
   35  victims by the police and prosecutors and are thus pressured
   36  into pleading guilty or do not understand the consequences of
   37  criminal charges, and
   38         WHEREAS, all persons with criminal records reflecting their
   39  involvement in the sex industry may face barriers to employment
   40  and other life opportunities long after they escape from their
   41  trafficking situations, and
   42         WHEREAS, there is a genuine need for a workable solution to
   43  alleviate the impact of the collateral consequences of
   44  conviction for victims of human trafficking, NOW, THEREFORE,
   45  
   46  Be It Enacted by the Legislature of the State of Florida:
   47  
   48         Section 1. Section 943.0583, Florida Statutes, is created
   49  to read:
   50         943.0583 Human trafficking victim expunction.—
   51         (1) As used in this section, the term:
   52         (a) “Human trafficking” has the same meaning as provided in
   53  s. 787.06.
   54         (b) “Official documentation” means any documentation issued
   55  by a federal, state, or local agency tending to show a person’s
   56  status as a victim of human trafficking.
   57         (c) “Victim of human trafficking” means a person subjected
   58  to coercion, as defined in s. 787.06, for the purpose of being
   59  used in human trafficking, a minor who is a victim of human
   60  trafficking through coercion, as defined in s. 787.06, or an
   61  individual subject to human trafficking as defined by federal
   62  law.
   63         (2) Notwithstanding any other provision of law, the court
   64  of original jurisdiction over the crime sought to be expunged
   65  may order a criminal justice agency to expunge the criminal
   66  history record of a victim of human trafficking who complies
   67  with the requirements of this section. This section does not
   68  confer any right to the expunction of any criminal history
   69  record, and any request for expunction of a criminal history
   70  record may be denied at the sole discretion of the court.
   71         (3) A person who is a victim of human trafficking may
   72  petition for the expunction of any conviction for an offense
   73  committed while he or she was a victim of human trafficking,
   74  which offense was committed as a part of the human trafficking
   75  scheme of which he or she was a victim or at the direction of an
   76  operator of the scheme, including, but not limited to,
   77  violations under chapters 796 and 847. However, this section
   78  does not apply to any offense listed in s. 775.084(1)(b)1.
   79  Determination of the petition under this section should be by a
   80  preponderance of the evidence. A conviction expunged under this
   81  section is deemed to have been vacated due to a substantive
   82  defect in the underlying criminal proceedings.
   83         (4) A petition under this section must be initiated by the
   84  petitioner with due diligence after the victim has ceased to be
   85  a victim of human trafficking or has sought services for victims
   86  of human trafficking, subject to reasonable concerns for the
   87  safety of the victim, family members of the victim, or other
   88  victims of human trafficking that may be jeopardized by the
   89  bringing of such petition or for other reasons consistent with
   90  the purpose of this section.
   91         (5) Official documentation of the victim’s status creates a
   92  presumption that his or her participation in the offense was a
   93  result of having been a victim of human trafficking but is not
   94  required for granting a petition under this section. A
   95  determination made without such official documentation must be
   96  made by a showing of clear and convincing evidence.
   97         (6) Each petition to a court to expunge a criminal history
   98  record is complete only when accompanied by:
   99         (a) The petitioner’s sworn statement attesting that the
  100  petitioner is eligible for such an expunction to the best of his
  101  or her knowledge or belief and does not have any other petition
  102  to expunge or any petition to seal pending before any court.
  103         (b) Official documentation of the petitioner’s status as a
  104  victim of human trafficking, if any exists.
  105  
  106  Any person who knowingly provides false information on such
  107  sworn statement to the court commits a felony of the third
  108  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  109  775.084.
  110         (7)(a) In judicial proceedings under this section, a copy
  111  of the completed petition to expunge shall be served upon the
  112  appropriate state attorney or the statewide prosecutor and upon
  113  the arresting agency; however, it is not necessary to make any
  114  agency other than the state a party. The appropriate state
  115  attorney or the statewide prosecutor and the arresting agency
  116  may respond to the court regarding the completed petition to
  117  expunge.
  118         (b) The petitioner or the petitioner’s attorney may appear
  119  at any hearing under this section telephonically, via video
  120  conference, or by other electronic means.
  121         (c) If relief is granted by the court, the clerk of the
  122  court shall certify copies of the order to the appropriate state
  123  attorney or the statewide prosecutor and the arresting agency.
  124  The arresting agency is responsible for forwarding the order to
  125  any other agency listed in the court order to which the
  126  arresting agency disseminated the criminal history record
  127  information to which the order pertains. The department shall
  128  forward the order to expunge to the Federal Bureau of
  129  Investigation. The clerk of the court shall certify a copy of
  130  the order to any other agency that the records of the court
  131  reflect has received the criminal history record from the court.
  132         (8)(a) Any criminal history record of a minor or an adult
  133  that is ordered expunged by the court of original jurisdiction
  134  over the crime sought to be expunged pursuant to this section
  135  must be physically destroyed or obliterated by any criminal
  136  justice agency having custody of such record, except that any
  137  criminal history record in the custody of the department must be
  138  retained in all cases.
  139         (b) The person who is the subject of a criminal history
  140  record that is expunged under this section may lawfully deny or
  141  fail to acknowledge the arrests covered by the expunged record.
  142         (c) A person who has been granted an expunction under this
  143  section may not be held under any law of this state to commit
  144  perjury or to be otherwise liable for giving a false statement
  145  by reason of such person’s failure to recite or acknowledge an
  146  expunged criminal history record.
  147         (9) Any reference to any other chapter, section, or
  148  subdivision of the Florida Statutes in this section constitutes
  149  a general reference under the doctrine of incorporation by
  150  reference.
  151         Section 2. Subsection (6) of section 943.0582, Florida
  152  Statutes, is amended to read:
  153         943.0582 Prearrest, postarrest, or teen court diversion
  154  program expunction.—
  155         (6) Expunction or sealing granted under this section does
  156  not prevent the minor who receives such relief from petitioning
  157  for the expunction or sealing of a later criminal history record
  158  as provided for in ss. 943.0583, 943.0585, and 943.059, if the
  159  minor is otherwise eligible under those sections.
  160         Section 3. Paragraph (a) of subsection (4) of section
  161  943.0585, Florida Statutes, is amended to read:
  162         943.0585 Court-ordered expunction of criminal history
  163  records.—The courts of this state have jurisdiction over their
  164  own procedures, including the maintenance, expunction, and
  165  correction of judicial records containing criminal history
  166  information to the extent such procedures are not inconsistent
  167  with the conditions, responsibilities, and duties established by
  168  this section. Any court of competent jurisdiction may order a
  169  criminal justice agency to expunge the criminal history record
  170  of a minor or an adult who complies with the requirements of
  171  this section. The court shall not order a criminal justice
  172  agency to expunge a criminal history record until the person
  173  seeking to expunge a criminal history record has applied for and
  174  received a certificate of eligibility for expunction pursuant to
  175  subsection (2). A criminal history record that relates to a
  176  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  177  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  178  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  179  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  180  any violation specified as a predicate offense for registration
  181  as a sexual predator pursuant to s. 775.21, without regard to
  182  whether that offense alone is sufficient to require such
  183  registration, or for registration as a sexual offender pursuant
  184  to s. 943.0435, may not be expunged, without regard to whether
  185  adjudication was withheld, if the defendant was found guilty of
  186  or pled guilty or nolo contendere to the offense, or if the
  187  defendant, as a minor, was found to have committed, or pled
  188  guilty or nolo contendere to committing, the offense as a
  189  delinquent act. The court may only order expunction of a
  190  criminal history record pertaining to one arrest or one incident
  191  of alleged criminal activity, except as provided in this
  192  section. The court may, at its sole discretion, order the
  193  expunction of a criminal history record pertaining to more than
  194  one arrest if the additional arrests directly relate to the
  195  original arrest. If the court intends to order the expunction of
  196  records pertaining to such additional arrests, such intent must
  197  be specified in the order. A criminal justice agency may not
  198  expunge any record pertaining to such additional arrests if the
  199  order to expunge does not articulate the intention of the court
  200  to expunge a record pertaining to more than one arrest. This
  201  section does not prevent the court from ordering the expunction
  202  of only a portion of a criminal history record pertaining to one
  203  arrest or one incident of alleged criminal activity.
  204  Notwithstanding any law to the contrary, a criminal justice
  205  agency may comply with laws, court orders, and official requests
  206  of other jurisdictions relating to expunction, correction, or
  207  confidential handling of criminal history records or information
  208  derived therefrom. This section does not confer any right to the
  209  expunction of any criminal history record, and any request for
  210  expunction of a criminal history record may be denied at the
  211  sole discretion of the court.
  212         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  213  criminal history record of a minor or an adult which is ordered
  214  expunged by a court of competent jurisdiction pursuant to this
  215  section must be physically destroyed or obliterated by any
  216  criminal justice agency having custody of such record; except
  217  that any criminal history record in the custody of the
  218  department must be retained in all cases. A criminal history
  219  record ordered expunged that is retained by the department is
  220  confidential and exempt from the provisions of s. 119.07(1) and
  221  s. 24(a), Art. I of the State Constitution and not available to
  222  any person or entity except upon order of a court of competent
  223  jurisdiction. A criminal justice agency may retain a notation
  224  indicating compliance with an order to expunge.
  225         (a) The person who is the subject of a criminal history
  226  record that is expunged under this section or under other
  227  provisions of law, including former s. 893.14, former s. 901.33,
  228  and former s. 943.058, may lawfully deny or fail to acknowledge
  229  the arrests covered by the expunged record, except when the
  230  subject of the record:
  231         1. Is a candidate for employment with a criminal justice
  232  agency;
  233         2. Is a defendant in a criminal prosecution;
  234         3. Concurrently or subsequently petitions for relief under
  235  this section, s. 943.0583, or s. 943.059;
  236         4. Is a candidate for admission to The Florida Bar;
  237         5. Is seeking to be employed or licensed by or to contract
  238  with the Department of Children and Family Services, the
  239  Division of Vocational Rehabilitation within the Department of
  240  Education, the Agency for Health Care Administration, the Agency
  241  for Persons with Disabilities, the Department of Health, the
  242  Department of Elderly Affairs, or the Department of Juvenile
  243  Justice or to be employed or used by such contractor or licensee
  244  in a sensitive position having direct contact with children, the
  245  disabled, or the elderly;
  246         6. Is seeking to be employed or licensed by the Department
  247  of Education, any district school board, any university
  248  laboratory school, any charter school, any private or parochial
  249  school, or any local governmental entity that licenses child
  250  care facilities; or
  251         7. Is seeking authorization from a seaport listed in s.
  252  311.09 for employment within or access to one or more of such
  253  seaports pursuant to s. 311.12.
  254         Section 4. Paragraph (a) of subsection (4) of section
  255  943.059, Florida Statutes, is amended to read:
  256         943.059 Court-ordered sealing of criminal history records.
  257  The courts of this state shall continue to have jurisdiction
  258  over their own procedures, including the maintenance, sealing,
  259  and correction of judicial records containing criminal history
  260  information to the extent such procedures are not inconsistent
  261  with the conditions, responsibilities, and duties established by
  262  this section. Any court of competent jurisdiction may order a
  263  criminal justice agency to seal the criminal history record of a
  264  minor or an adult who complies with the requirements of this
  265  section. The court shall not order a criminal justice agency to
  266  seal a criminal history record until the person seeking to seal
  267  a criminal history record has applied for and received a
  268  certificate of eligibility for sealing pursuant to subsection
  269  (2). A criminal history record that relates to a violation of s.
  270  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  271  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  272  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  273  916.1075, a violation enumerated in s. 907.041, or any violation
  274  specified as a predicate offense for registration as a sexual
  275  predator pursuant to s. 775.21, without regard to whether that
  276  offense alone is sufficient to require such registration, or for
  277  registration as a sexual offender pursuant to s. 943.0435, may
  278  not be sealed, without regard to whether adjudication was
  279  withheld, if the defendant was found guilty of or pled guilty or
  280  nolo contendere to the offense, or if the defendant, as a minor,
  281  was found to have committed or pled guilty or nolo contendere to
  282  committing the offense as a delinquent act. The court may only
  283  order sealing of a criminal history record pertaining to one
  284  arrest or one incident of alleged criminal activity, except as
  285  provided in this section. The court may, at its sole discretion,
  286  order the sealing of a criminal history record pertaining to
  287  more than one arrest if the additional arrests directly relate
  288  to the original arrest. If the court intends to order the
  289  sealing of records pertaining to such additional arrests, such
  290  intent must be specified in the order. A criminal justice agency
  291  may not seal any record pertaining to such additional arrests if
  292  the order to seal does not articulate the intention of the court
  293  to seal records pertaining to more than one arrest. This section
  294  does not prevent the court from ordering the sealing of only a
  295  portion of a criminal history record pertaining to one arrest or
  296  one incident of alleged criminal activity. Notwithstanding any
  297  law to the contrary, a criminal justice agency may comply with
  298  laws, court orders, and official requests of other jurisdictions
  299  relating to sealing, correction, or confidential handling of
  300  criminal history records or information derived therefrom. This
  301  section does not confer any right to the sealing of any criminal
  302  history record, and any request for sealing a criminal history
  303  record may be denied at the sole discretion of the court.
  304         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  305  history record of a minor or an adult which is ordered sealed by
  306  a court of competent jurisdiction pursuant to this section is
  307  confidential and exempt from the provisions of s. 119.07(1) and
  308  s. 24(a), Art. I of the State Constitution and is available only
  309  to the person who is the subject of the record, to the subject’s
  310  attorney, to criminal justice agencies for their respective
  311  criminal justice purposes, which include conducting a criminal
  312  history background check for approval of firearms purchases or
  313  transfers as authorized by state or federal law, to judges in
  314  the state courts system for the purpose of assisting them in
  315  their case-related decisionmaking responsibilities, as set forth
  316  in s. 943.053(5), or to those entities set forth in
  317  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  318  licensing, access authorization, and employment purposes.
  319         (a) The subject of a criminal history record sealed under
  320  this section or under other provisions of law, including former
  321  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  322  deny or fail to acknowledge the arrests covered by the sealed
  323  record, except when the subject of the record:
  324         1. Is a candidate for employment with a criminal justice
  325  agency;
  326         2. Is a defendant in a criminal prosecution;
  327         3. Concurrently or subsequently petitions for relief under
  328  this section, s. 943.0583, or s. 943.0585;
  329         4. Is a candidate for admission to The Florida Bar;
  330         5. Is seeking to be employed or licensed by or to contract
  331  with the Department of Children and Family Services, the
  332  Division of Vocational Rehabilitation within the Department of
  333  Education, the Agency for Health Care Administration, the Agency
  334  for Persons with Disabilities, the Department of Health, the
  335  Department of Elderly Affairs, or the Department of Juvenile
  336  Justice or to be employed or used by such contractor or licensee
  337  in a sensitive position having direct contact with children, the
  338  disabled, or the elderly;
  339         6. Is seeking to be employed or licensed by the Department
  340  of Education, any district school board, any university
  341  laboratory school, any charter school, any private or parochial
  342  school, or any local governmental entity that licenses child
  343  care facilities;
  344         7. Is attempting to purchase a firearm from a licensed
  345  importer, licensed manufacturer, or licensed dealer and is
  346  subject to a criminal history check under state or federal law;
  347  or
  348         8. Is seeking authorization from a Florida seaport
  349  identified in s. 311.09 for employment within or access to one
  350  or more of such seaports pursuant to s. 311.12.
  351         Section 5. Paragraph (e) of subsection (1) of section
  352  961.06, Florida Statutes, is amended to read:
  353         961.06 Compensation for wrongful incarceration.—
  354         (1) Except as otherwise provided in this act and subject to
  355  the limitations and procedures prescribed in this section, a
  356  person who is found to be entitled to compensation under the
  357  provisions of this act is entitled to:
  358         (e) Notwithstanding any provision to the contrary in s.
  359  943.0583 or s. 943.0585, immediate administrative expunction of
  360  the person’s criminal record resulting from his or her wrongful
  361  arrest, wrongful conviction, and wrongful incarceration. The
  362  Department of Legal Affairs and the Department of Law
  363  Enforcement shall, upon a determination that a claimant is
  364  entitled to compensation, immediately take all action necessary
  365  to administratively expunge the claimant’s criminal record
  366  arising from his or her wrongful arrest, wrongful conviction,
  367  and wrongful incarceration. All fees for this process shall be
  368  waived.
  369  
  370  The total compensation awarded under paragraphs (a), (c), and
  371  (d) may not exceed $2 million. No further award for attorney’s
  372  fees, lobbying fees, costs, or other similar expenses shall be
  373  made by the state.
  374         Section 6. This act shall take effect July 1, 2013.