Florida Senate - 2014                              CS for SB 448
       
       
        
       By the Committee on Judiciary; and Senator Evers
       
       
       
       
       
       590-02102-14                                           2014448c1
    1                        A bill to be entitled                      
    2         An act relating to the threatened use of force;
    3         providing legislative findings and intent; amending s.
    4         775.087, F.S.; removing aggravated assault from the
    5         list of offenses that qualify for certain minimum
    6         mandatory sentences; amending s. 776.012, F.S.;
    7         applying provisions relating to the use of force in
    8         defense of persons to the threatened use of force;
    9         amending s. 776.013, F.S.; applying presumption
   10         relating to the use of deadly force to the threatened
   11         use of deadly force in the defense of a residence and
   12         similar circumstances; applying provisions relating to
   13         such use of force to the threatened use of force;
   14         amending s. 776.031, F.S.; applying provisions
   15         relating to the use of force in defense of property to
   16         the threatened use of force; amending s. 776.032,
   17         F.S.; applying immunity provisions that relate to the
   18         use of force to the threatened use of force; amending
   19         s. 776.041, F.S.; applying provisions relating to the
   20         use of force by an aggressor to the threatened use of
   21         force; providing exceptions; amending s. 776.051,
   22         F.S.; providing that a person is not justified in the
   23         threatened use of force to resist an arrest by a law
   24         enforcement officer; creating s. 776.09, F.S.;
   25         providing that a person is eligible to apply for a
   26         certificate of eligibility for expunction,
   27         notwithstanding the eligibility requirements, if the
   28         charging document in the case is not filed or is
   29         dismissed because it is found that the person acted in
   30         lawful self-defense pursuant to the provisions related
   31         to the justifiable use of force in ch. 776, F.S.;
   32         requiring a prosecutor, statewide prosecutor, or court
   33         to document and retain such findings; amending s.
   34         943.0585, F.S.; requiring the Department of Law
   35         Enforcement to provide a certificate of eligibility
   36         for expunction, notwithstanding the eligibility
   37         requirements, to a person who has a written, certified
   38         statement from a prosecutor or statewide prosecutor
   39         indicating that the charging document in the case was
   40         not filed or was dismissed because it was found that
   41         the person acted in lawful self-defense pursuant to
   42         the provisions related to the justifiable use of force
   43         in ch. 776, F.S.; providing a penalty for knowingly
   44         providing false information on a sworn statement;
   45         providing applicability; requiring the department to
   46         adopt rules; providing an effective date.
   47          
   48  Be It Enacted by the Legislature of the State of Florida:
   49  
   50         Section 1. (1) The Legislature finds that persons have been
   51  criminally prosecuted and have been sentenced to mandatory
   52  minimum terms of imprisonment pursuant to s. 775.087, Florida
   53  Statutes, for threatening to use force in a manner and under
   54  circumstances that would have been justifiable under chapter
   55  776, Florida Statutes, had force actually been used.
   56         (2) The Legislature intends to:
   57         (a) Provide criminal and civil immunity to those who
   58  threaten to use force if the threat was made in a manner and
   59  under circumstances that would have been immune under chapter
   60  776, Florida Statutes, had force actually been used.
   61         (b) Clarify that those who threaten to use force may claim
   62  self-defense if the threat was made in a manner and under
   63  circumstances that would have been justifiable under chapter
   64  776, Florida Statutes, had force actually been used.
   65         (c) Ensure that those who threaten to use force in a manner
   66  and under circumstances that are justifiable under chapter 776,
   67  Florida Statutes, are not sentenced to a mandatory minimum term
   68  of imprisonment pursuant to s. 775.087, Florida Statutes.
   69         (d) Encourage those who have been sentenced to a mandatory
   70  minimum term of imprisonment pursuant to s. 775.087, Florida
   71  Statutes, for threatening to use force in a manner and under
   72  circumstances that are justifiable under chapter 776, Florida
   73  Statutes, to apply for executive clemency.
   74         Section 2. Paragraph (a) of subsection (2) and paragraph
   75  (a) of subsection (3) of section 775.087, Florida Statutes, are
   76  amended to read:
   77         775.087 Possession or use of weapon; aggravated battery;
   78  felony reclassification; minimum sentence.—
   79         (2)(a)1. Any person who is convicted of a felony or an
   80  attempt to commit a felony, regardless of whether the use of a
   81  weapon is an element of the felony, and the conviction was for:
   82         a. Murder;
   83         b. Sexual battery;
   84         c. Robbery;
   85         d. Burglary;
   86         e. Arson;
   87         f. Aggravated assault;
   88         f.g. Aggravated battery;
   89         g.h. Kidnapping;
   90         h.i. Escape;
   91         i.j. Aircraft piracy;
   92         j.k. Aggravated child abuse;
   93         k.l. Aggravated abuse of an elderly person or disabled
   94  adult;
   95         l.m. Unlawful throwing, placing, or discharging of a
   96  destructive device or bomb;
   97         m.n. Carjacking;
   98         n.o. Home-invasion robbery;
   99         o.p. Aggravated stalking;
  100         p.q. Trafficking in cannabis, trafficking in cocaine,
  101  capital importation of cocaine, trafficking in illegal drugs,
  102  capital importation of illegal drugs, trafficking in
  103  phencyclidine, capital importation of phencyclidine, trafficking
  104  in methaqualone, capital importation of methaqualone,
  105  trafficking in amphetamine, capital importation of amphetamine,
  106  trafficking in flunitrazepam, trafficking in gamma
  107  hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol,
  108  trafficking in Phenethylamines, or other violation of s.
  109  893.135(1); or
  110         q.r. Possession of a firearm by a felon
  111  
  112  and during the commission of the offense, such person actually
  113  possessed a “firearm” or “destructive device” as those terms are
  114  defined in s. 790.001, shall be sentenced to a minimum term of
  115  imprisonment of 10 years, except that a person who is convicted
  116  for aggravated assault, possession of a firearm by a felon, or
  117  burglary of a conveyance shall be sentenced to a minimum term of
  118  imprisonment of 3 years if such person possessed a “firearm” or
  119  “destructive device” during the commission of the offense.
  120  However, if an offender who is convicted of the offense of
  121  possession of a firearm by a felon has a previous conviction of
  122  committing or attempting to commit a felony listed in s.
  123  775.084(1)(b)1. and actually possessed a firearm or destructive
  124  device during the commission of the prior felony, the offender
  125  shall be sentenced to a minimum term of imprisonment of 10
  126  years.
  127         2. Any person who is convicted of a felony or an attempt to
  128  commit a felony listed in sub-subparagraphs (a)1.a.-p.q.,
  129  regardless of whether the use of a weapon is an element of the
  130  felony, and during the course of the commission of the felony
  131  such person discharged a “firearm” or “destructive device” as
  132  defined in s. 790.001 shall be sentenced to a minimum term of
  133  imprisonment of 20 years.
  134         3. Any person who is convicted of a felony or an attempt to
  135  commit a felony listed in sub-subparagraphs (a)1.a.-p.q.,
  136  regardless of whether the use of a weapon is an element of the
  137  felony, and during the course of the commission of the felony
  138  such person discharged a “firearm” or “destructive device” as
  139  defined in s. 790.001 and, as the result of the discharge, death
  140  or great bodily harm was inflicted upon any person, the
  141  convicted person shall be sentenced to a minimum term of
  142  imprisonment of not less than 25 years and not more than a term
  143  of imprisonment of life in prison.
  144         (3)(a)1. Any person who is convicted of a felony or an
  145  attempt to commit a felony, regardless of whether the use of a
  146  firearm is an element of the felony, and the conviction was for:
  147         a. Murder;
  148         b. Sexual battery;
  149         c. Robbery;
  150         d. Burglary;
  151         e. Arson;
  152         f. Aggravated assault;
  153         f.g. Aggravated battery;
  154         g.h. Kidnapping;
  155         h.i. Escape;
  156         i.j. Sale, manufacture, delivery, or intent to sell,
  157  manufacture, or deliver any controlled substance;
  158         j.k. Aircraft piracy;
  159         k.l. Aggravated child abuse;
  160         l.m. Aggravated abuse of an elderly person or disabled
  161  adult;
  162         m.n. Unlawful throwing, placing, or discharging of a
  163  destructive device or bomb;
  164         n.o. Carjacking;
  165         o.p. Home-invasion robbery;
  166         p.q. Aggravated stalking; or
  167         q.r. Trafficking in cannabis, trafficking in cocaine,
  168  capital importation of cocaine, trafficking in illegal drugs,
  169  capital importation of illegal drugs, trafficking in
  170  phencyclidine, capital importation of phencyclidine, trafficking
  171  in methaqualone, capital importation of methaqualone,
  172  trafficking in amphetamine, capital importation of amphetamine,
  173  trafficking in flunitrazepam, trafficking in gamma
  174  hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol,
  175  trafficking in Phenethylamines, or other violation of s.
  176  893.135(1);
  177  
  178  and during the commission of the offense, such person possessed
  179  a semiautomatic firearm and its high-capacity detachable box
  180  magazine or a machine gun as defined in s. 790.001, shall be
  181  sentenced to a minimum term of imprisonment of 15 years.
  182         2. Any person who is convicted of a felony or an attempt to
  183  commit a felony listed in subparagraph (a)1., regardless of
  184  whether the use of a weapon is an element of the felony, and
  185  during the course of the commission of the felony such person
  186  discharged a semiautomatic firearm and its high-capacity box
  187  magazine or a “machine gun” as defined in s. 790.001 shall be
  188  sentenced to a minimum term of imprisonment of 20 years.
  189         3. Any person who is convicted of a felony or an attempt to
  190  commit a felony listed in subparagraph (a)1., regardless of
  191  whether the use of a weapon is an element of the felony, and
  192  during the course of the commission of the felony such person
  193  discharged a semiautomatic firearm and its high-capacity box
  194  magazine or a “machine gun” as defined in s. 790.001 and, as the
  195  result of the discharge, death or great bodily harm was
  196  inflicted upon any person, the convicted person shall be
  197  sentenced to a minimum term of imprisonment of not less than 25
  198  years and not more than a term of imprisonment of life in
  199  prison.
  200         Section 3. Section 776.012, Florida Statutes, is amended to
  201  read:
  202         776.012 Use or threatened use of force in defense of
  203  person.—A person is justified in using force, except deadly
  204  force, or threatening to use force against another when and to
  205  the extent that the person reasonably believes that such conduct
  206  is necessary to defend himself or herself or another against the
  207  other’s imminent use of unlawful force. However, a person is
  208  justified in using or threatening to use the use of deadly force
  209  and does not have a duty to retreat if:
  210         (1) He or she reasonably believes that such force is
  211  necessary to prevent imminent death or great bodily harm to
  212  himself or herself or another or to prevent the imminent
  213  commission of a forcible felony; or
  214         (2) Under those circumstances permitted pursuant to s.
  215  776.013.
  216         Section 4. Section 776.013, Florida Statutes, is amended to
  217  read:
  218         776.013 Home protection; use or threatened use of deadly
  219  force; presumption of fear of death or great bodily harm.—
  220         (1) A person is presumed to have held a reasonable fear of
  221  imminent peril of death or great bodily harm to himself or
  222  herself or another when using or threatening to use defensive
  223  force that is intended or likely to cause death or great bodily
  224  harm to another if:
  225         (a) The person against whom the defensive force was used or
  226  threatened was in the process of unlawfully and forcefully
  227  entering, or had unlawfully and forcibly entered, a dwelling,
  228  residence, or occupied vehicle, or if that person had removed or
  229  was attempting to remove another against that person’s will from
  230  the dwelling, residence, or occupied vehicle; and
  231         (b) The person who uses or threatens to use defensive force
  232  knew or had reason to believe that an unlawful and forcible
  233  entry or unlawful and forcible act was occurring or had
  234  occurred.
  235         (2) The presumption set forth in subsection (1) does not
  236  apply if:
  237         (a) The person against whom the defensive force is used or
  238  threatened has the right to be in or is a lawful resident of the
  239  dwelling, residence, or vehicle, such as an owner, lessee, or
  240  titleholder, and there is not an injunction for protection from
  241  domestic violence or a written pretrial supervision order of no
  242  contact against that person; or
  243         (b) The person or persons sought to be removed is a child
  244  or grandchild, or is otherwise in the lawful custody or under
  245  the lawful guardianship of, the person against whom the
  246  defensive force is used or threatened; or
  247         (c) The person who uses or threatens to use defensive force
  248  is engaged in an unlawful activity or is using the dwelling,
  249  residence, or occupied vehicle to further an unlawful activity;
  250  or
  251         (d) The person against whom the defensive force is used or
  252  threatened is a law enforcement officer, as defined in s.
  253  943.10(14), who enters or attempts to enter a dwelling,
  254  residence, or vehicle in the performance of his or her official
  255  duties and the officer identified himself or herself in
  256  accordance with any applicable law or the person using or
  257  threatening to use force knew or reasonably should have known
  258  that the person entering or attempting to enter was a law
  259  enforcement officer.
  260         (3) A person who is not engaged in an unlawful activity and
  261  who is attacked in any other place where he or she has a right
  262  to be has no duty to retreat and has the right to stand his or
  263  her ground and use or threaten to use meet force with force,
  264  including deadly force if he or she reasonably believes it is
  265  necessary to do so to prevent death or great bodily harm to
  266  himself or herself or another or to prevent the commission of a
  267  forcible felony.
  268         (4) A person who unlawfully and by force enters or attempts
  269  to enter a person’s dwelling, residence, or occupied vehicle is
  270  presumed to be doing so with the intent to commit an unlawful
  271  act involving force or violence.
  272         (5) As used in this section, the term:
  273         (a) “Dwelling” means a building or conveyance of any kind,
  274  including any attached porch, whether the building or conveyance
  275  is temporary or permanent, mobile or immobile, which has a roof
  276  over it, including a tent, and is designed to be occupied by
  277  people lodging therein at night.
  278         (b) “Residence” means a dwelling in which a person resides
  279  either temporarily or permanently or is visiting as an invited
  280  guest.
  281         (c) “Vehicle” means a conveyance of any kind, whether or
  282  not motorized, which is designed to transport people or
  283  property.
  284         Section 5. Section 776.031, Florida Statutes, is amended to
  285  read:
  286         776.031 Use or threatened use of force in defense of
  287  property others.—A person is justified in using the use of
  288  force, except deadly force, or threatening to use force against
  289  another when and to the extent that the person reasonably
  290  believes that such conduct is necessary to prevent or terminate
  291  the other’s trespass on, or other tortious or criminal
  292  interference with, either real property other than a dwelling or
  293  personal property, lawfully in his or her possession or in the
  294  possession of another who is a member of his or her immediate
  295  family or household or of a person whose property he or she has
  296  a legal duty to protect. However, a the person is justified in
  297  using the use of deadly force only if he or she reasonably
  298  believes that such conduct force is necessary to prevent the
  299  imminent commission of a forcible felony. A person does not have
  300  a duty to retreat if the person is in a place where he or she
  301  has a right to be.
  302         Section 6. Section 776.032, Florida Statutes, is amended to
  303  read:
  304         776.032 Immunity from criminal prosecution and civil action
  305  for justifiable use or threatened use of force.—
  306         (1) A person who uses or threatens to use force as
  307  permitted in s. 776.012, s. 776.013, or s. 776.031 is justified
  308  in using such conduct force and is immune from criminal
  309  prosecution and civil action for the use or threatened use of
  310  such force, unless the person against whom force was used or
  311  threatened is a law enforcement officer, as defined in s.
  312  943.10(14), who was acting in the performance of his or her
  313  official duties and the officer identified himself or herself in
  314  accordance with any applicable law or the person using or
  315  threatening to use force knew or reasonably should have known
  316  that the person was a law enforcement officer. As used in this
  317  subsection, the term “criminal prosecution” includes arresting,
  318  detaining in custody, and charging or prosecuting the defendant.
  319         (2) A law enforcement agency may use standard procedures
  320  for investigating the use or threatened use of force as
  321  described in subsection (1), but the agency may not arrest the
  322  person for using or threatening to use force unless it
  323  determines that there is probable cause that the force that was
  324  used or threatened was unlawful.
  325         (3) The court shall award reasonable attorney’s fees, court
  326  costs, compensation for loss of income, and all expenses
  327  incurred by the defendant in defense of any civil action brought
  328  by a plaintiff if the court finds that the defendant is immune
  329  from prosecution as provided in subsection (1).
  330         Section 7. Section 776.041, Florida Statutes, is amended to
  331  read:
  332         776.041 Use or threatened use of force by aggressor.—The
  333  justification described in the preceding sections of this
  334  chapter is not available to a person who:
  335         (1) Is attempting to commit, committing, or escaping after
  336  the commission of, a forcible felony; or
  337         (2) Initially provokes the use or threatened use of force
  338  against himself or herself, unless:
  339         (a) Such force or threat of force is so great that the
  340  person reasonably believes that he or she is in imminent danger
  341  of death or great bodily harm and that he or she has exhausted
  342  every reasonable means to escape such danger other than the use
  343  or threatened use of force which is likely to cause death or
  344  great bodily harm to the assailant; or
  345         (b) In good faith, the person withdraws from physical
  346  contact with the assailant and indicates clearly to the
  347  assailant that he or she desires to withdraw and terminate the
  348  use or threatened use of force, but the assailant continues or
  349  resumes the use or threatened use of force.
  350         Section 8. Section 776.051, Florida Statutes, is amended to
  351  read:
  352         776.051 Use or threatened use of force in resisting arrest
  353  or making an arrest or in the execution of a legal duty;
  354  prohibition.—
  355         (1) A person is not justified in the use or threatened use
  356  of force to resist an arrest by a law enforcement officer, or to
  357  resist a law enforcement officer who is engaged in the execution
  358  of a legal duty, if the law enforcement officer was acting in
  359  good faith and he or she is known, or reasonably appears, to be
  360  a law enforcement officer.
  361         (2) A law enforcement officer, or any person whom the
  362  officer has summoned or directed to assist him or her, is not
  363  justified in the use of force if the arrest or execution of a
  364  legal duty is unlawful and known by him or her to be unlawful.
  365         Section 9. Section 776.09, Florida Statutes, is created to
  366  read:
  367         776.09 Retention of records pertaining to persons found to
  368  be acting in lawful self-defense; expunction of related criminal
  369  history records.—
  370         (1) Whenever the state attorney or statewide prosecutor
  371  dismisses an information, indictment, or other charging
  372  document, or decides not to file an information, indictment, or
  373  other charging document, because of a finding that the person
  374  accused acted in lawful self-defense pursuant to the provisions
  375  related to the justifiable use of force in chapter 776, that
  376  finding shall be documented in writing and retained in the files
  377  of the state attorney or statewide prosecutor.
  378         (2) Whenever a court dismisses an information, indictment,
  379  or other charging document because of a finding that the person
  380  accused acted in lawful self-defense pursuant to the provisions
  381  related to the justifiable use of force in chapter 776, that
  382  finding shall be recorded in an order or memorandum, which shall
  383  be retained in the court’s records.
  384         (3) Under either of these conditions, the person accused
  385  may apply for a certificate of eligibility to expunge the
  386  associated criminal history record, pursuant to s. 943.0585(5),
  387  notwithstanding the eligibility requirements prescribed in s.
  388  943.0585(1)(b) or (2).
  389         Section 10. Section 943.0585, Florida Statutes, is amended
  390  to read:
  391         943.0585 Court-ordered expunction of criminal history
  392  records.—The courts of this state have jurisdiction over their
  393  own procedures, including the maintenance, expunction, and
  394  correction of judicial records containing criminal history
  395  information to the extent such procedures are not inconsistent
  396  with the conditions, responsibilities, and duties established by
  397  this section. Any court of competent jurisdiction may order a
  398  criminal justice agency to expunge the criminal history record
  399  of a minor or an adult who complies with the requirements of
  400  this section. The court shall not order a criminal justice
  401  agency to expunge a criminal history record until the person
  402  seeking to expunge a criminal history record has applied for and
  403  received a certificate of eligibility for expunction pursuant to
  404  subsection (2) or subsection (5). A criminal history record that
  405  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
  406  chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s.
  407  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s.
  408  847.0145, s. 893.135, s. 916.1075, a violation enumerated in s.
  409  907.041, or any violation specified as a predicate offense for
  410  registration as a sexual predator pursuant to s. 775.21, without
  411  regard to whether that offense alone is sufficient to require
  412  such registration, or for registration as a sexual offender
  413  pursuant to s. 943.0435, may not be expunged, without regard to
  414  whether adjudication was withheld, if the defendant was found
  415  guilty of or pled guilty or nolo contendere to the offense, or
  416  if the defendant, as a minor, was found to have committed, or
  417  pled guilty or nolo contendere to committing, the offense as a
  418  delinquent act. The court may only order expunction of a
  419  criminal history record pertaining to one arrest or one incident
  420  of alleged criminal activity, except as provided in this
  421  section. The court may, at its sole discretion, order the
  422  expunction of a criminal history record pertaining to more than
  423  one arrest if the additional arrests directly relate to the
  424  original arrest. If the court intends to order the expunction of
  425  records pertaining to such additional arrests, such intent must
  426  be specified in the order. A criminal justice agency may not
  427  expunge any record pertaining to such additional arrests if the
  428  order to expunge does not articulate the intention of the court
  429  to expunge a record pertaining to more than one arrest. This
  430  section does not prevent the court from ordering the expunction
  431  of only a portion of a criminal history record pertaining to one
  432  arrest or one incident of alleged criminal activity.
  433  Notwithstanding any law to the contrary, a criminal justice
  434  agency may comply with laws, court orders, and official requests
  435  of other jurisdictions relating to expunction, correction, or
  436  confidential handling of criminal history records or information
  437  derived therefrom. This section does not confer any right to the
  438  expunction of any criminal history record, and any request for
  439  expunction of a criminal history record may be denied at the
  440  sole discretion of the court.
  441         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  442  petition to a court to expunge a criminal history record is
  443  complete only when accompanied by:
  444         (a) A valid certificate of eligibility for expunction
  445  issued by the department pursuant to subsection (2).
  446         (b) The petitioner’s sworn statement attesting that the
  447  petitioner:
  448         1. Has never, prior to the date on which the petition is
  449  filed, been adjudicated guilty of a criminal offense or
  450  comparable ordinance violation, or been adjudicated delinquent
  451  for committing any felony or a misdemeanor specified in s.
  452  943.051(3)(b).
  453         2. Has not been adjudicated guilty of, or adjudicated
  454  delinquent for committing, any of the acts stemming from the
  455  arrest or alleged criminal activity to which the petition
  456  pertains.
  457         3. Has never secured a prior sealing or expunction of a
  458  criminal history record under this section, s. 943.059, former
  459  s. 893.14, former s. 901.33, or former s. 943.058, unless
  460  expunction is sought of a criminal history record previously
  461  sealed for 10 years pursuant to paragraph (2)(h) and the record
  462  is otherwise eligible for expunction.
  463         4. Is eligible for such an expunction to the best of his or
  464  her knowledge or belief and does not have any other petition to
  465  expunge or any petition to seal pending before any court.
  466  
  467  Any person who knowingly provides false information on such
  468  sworn statement to the court commits a felony of the third
  469  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  470  775.084.
  471         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  472  petitioning the court to expunge a criminal history record, a
  473  person seeking to expunge a criminal history record shall apply
  474  to the department for a certificate of eligibility for
  475  expunction. The department shall, by rule adopted pursuant to
  476  chapter 120, establish procedures pertaining to the application
  477  for and issuance of certificates of eligibility for expunction.
  478  A certificate of eligibility for expunction is valid for 12
  479  months after the date stamped on the certificate when issued by
  480  the department. After that time, the petitioner must reapply to
  481  the department for a new certificate of eligibility. Eligibility
  482  for a renewed certification of eligibility must be based on the
  483  status of the applicant and the law in effect at the time of the
  484  renewal application. The department shall issue a certificate of
  485  eligibility for expunction to a person who is the subject of a
  486  criminal history record if that person:
  487         (a) Has obtained, and submitted to the department, a
  488  written, certified statement from the appropriate state attorney
  489  or statewide prosecutor which indicates:
  490         1. That an indictment, information, or other charging
  491  document was not filed or issued in the case.
  492         2. That an indictment, information, or other charging
  493  document, if filed or issued in the case, was dismissed or nolle
  494  prosequi by the state attorney or statewide prosecutor, or was
  495  dismissed by a court of competent jurisdiction, and that none of
  496  the charges related to the arrest or alleged criminal activity
  497  to which the petition to expunge pertains resulted in a trial,
  498  without regard to whether the outcome of the trial was other
  499  than an adjudication of guilt.
  500         3. That the criminal history record does not relate to a
  501  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  502  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  503  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  504  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  505  any violation specified as a predicate offense for registration
  506  as a sexual predator pursuant to s. 775.21, without regard to
  507  whether that offense alone is sufficient to require such
  508  registration, or for registration as a sexual offender pursuant
  509  to s. 943.0435, where the defendant was found guilty of, or pled
  510  guilty or nolo contendere to any such offense, or that the
  511  defendant, as a minor, was found to have committed, or pled
  512  guilty or nolo contendere to committing, such an offense as a
  513  delinquent act, without regard to whether adjudication was
  514  withheld.
  515         (b) Remits a $75 processing fee to the department for
  516  placement in the Department of Law Enforcement Operating Trust
  517  Fund, unless such fee is waived by the executive director.
  518         (c) Has submitted to the department a certified copy of the
  519  disposition of the charge to which the petition to expunge
  520  pertains.
  521         (d) Has never, prior to the date on which the application
  522  for a certificate of eligibility is filed, been adjudicated
  523  guilty of a criminal offense or comparable ordinance violation,
  524  or been adjudicated delinquent for committing any felony or a
  525  misdemeanor specified in s. 943.051(3)(b).
  526         (e) Has not been adjudicated guilty of, or adjudicated
  527  delinquent for committing, any of the acts stemming from the
  528  arrest or alleged criminal activity to which the petition to
  529  expunge pertains.
  530         (f) Has never secured a prior sealing or expunction of a
  531  criminal history record under this section, s. 943.059, former
  532  s. 893.14, former s. 901.33, or former s. 943.058, unless
  533  expunction is sought of a criminal history record previously
  534  sealed for 10 years pursuant to paragraph (h) and the record is
  535  otherwise eligible for expunction.
  536         (g) Is no longer under court supervision applicable to the
  537  disposition of the arrest or alleged criminal activity to which
  538  the petition to expunge pertains.
  539         (h) Has previously obtained a court order sealing the
  540  record under this section, former s. 893.14, former s. 901.33,
  541  or former s. 943.058 for a minimum of 10 years because
  542  adjudication was withheld or because all charges related to the
  543  arrest or alleged criminal activity to which the petition to
  544  expunge pertains were not dismissed prior to trial, without
  545  regard to whether the outcome of the trial was other than an
  546  adjudication of guilt. The requirement for the record to have
  547  previously been sealed for a minimum of 10 years does not apply
  548  when a plea was not entered or all charges related to the arrest
  549  or alleged criminal activity to which the petition to expunge
  550  pertains were dismissed prior to trial.
  551         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  552         (a) In judicial proceedings under this section, a copy of
  553  the completed petition to expunge shall be served upon the
  554  appropriate state attorney or the statewide prosecutor and upon
  555  the arresting agency; however, it is not necessary to make any
  556  agency other than the state a party. The appropriate state
  557  attorney or the statewide prosecutor and the arresting agency
  558  may respond to the court regarding the completed petition to
  559  expunge.
  560         (b) If relief is granted by the court, the clerk of the
  561  court shall certify copies of the order to the appropriate state
  562  attorney or the statewide prosecutor and the arresting agency.
  563  The arresting agency is responsible for forwarding the order to
  564  any other agency to which the arresting agency disseminated the
  565  criminal history record information to which the order pertains.
  566  The department shall forward the order to expunge to the Federal
  567  Bureau of Investigation. The clerk of the court shall certify a
  568  copy of the order to any other agency which the records of the
  569  court reflect has received the criminal history record from the
  570  court.
  571         (c) For an order to expunge entered by a court prior to
  572  July 1, 1992, the department shall notify the appropriate state
  573  attorney or statewide prosecutor of an order to expunge which is
  574  contrary to law because the person who is the subject of the
  575  record has previously been convicted of a crime or comparable
  576  ordinance violation or has had a prior criminal history record
  577  sealed or expunged. Upon receipt of such notice, the appropriate
  578  state attorney or statewide prosecutor shall take action, within
  579  60 days, to correct the record and petition the court to void
  580  the order to expunge. The department shall seal the record until
  581  such time as the order is voided by the court.
  582         (d) On or after July 1, 1992, the department or any other
  583  criminal justice agency is not required to act on an order to
  584  expunge entered by a court when such order does not comply with
  585  the requirements of this section. Upon receipt of such an order,
  586  the department must notify the issuing court, the appropriate
  587  state attorney or statewide prosecutor, the petitioner or the
  588  petitioner’s attorney, and the arresting agency of the reason
  589  for noncompliance. The appropriate state attorney or statewide
  590  prosecutor shall take action within 60 days to correct the
  591  record and petition the court to void the order. No cause of
  592  action, including contempt of court, shall arise against any
  593  criminal justice agency for failure to comply with an order to
  594  expunge when the petitioner for such order failed to obtain the
  595  certificate of eligibility as required by this section or such
  596  order does not otherwise comply with the requirements of this
  597  section.
  598         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  599  criminal history record of a minor or an adult which is ordered
  600  expunged by a court of competent jurisdiction pursuant to this
  601  section must be physically destroyed or obliterated by any
  602  criminal justice agency having custody of such record; except
  603  that any criminal history record in the custody of the
  604  department must be retained in all cases. A criminal history
  605  record ordered expunged that is retained by the department is
  606  confidential and exempt from the provisions of s. 119.07(1) and
  607  s. 24(a), Art. I of the State Constitution and not available to
  608  any person or entity except upon order of a court of competent
  609  jurisdiction. A criminal justice agency may retain a notation
  610  indicating compliance with an order to expunge.
  611         (a) The person who is the subject of a criminal history
  612  record that is expunged under this section or under other
  613  provisions of law, including former s. 893.14, former s. 901.33,
  614  and former s. 943.058, may lawfully deny or fail to acknowledge
  615  the arrests covered by the expunged record, except when the
  616  subject of the record:
  617         1. Is a candidate for employment with a criminal justice
  618  agency;
  619         2. Is a defendant in a criminal prosecution;
  620         3. Concurrently or subsequently petitions for relief under
  621  this section, s. 943.0583, or s. 943.059;
  622         4. Is a candidate for admission to The Florida Bar;
  623         5. Is seeking to be employed or licensed by or to contract
  624  with the Department of Children and Families, the Division of
  625  Vocational Rehabilitation within the Department of Education,
  626  the Agency for Health Care Administration, the Agency for
  627  Persons with Disabilities, the Department of Health, the
  628  Department of Elderly Affairs, or the Department of Juvenile
  629  Justice or to be employed or used by such contractor or licensee
  630  in a sensitive position having direct contact with children, the
  631  disabled, or the elderly; or
  632         6. Is seeking to be employed or licensed by the Department
  633  of Education, any district school board, any university
  634  laboratory school, any charter school, any private or parochial
  635  school, or any local governmental entity that licenses child
  636  care facilities.
  637         (b) Subject to the exceptions in paragraph (a), a person
  638  who has been granted an expunction under this section, former s.
  639  893.14, former s. 901.33, or former s. 943.058 may not be held
  640  under any provision of law of this state to commit perjury or to
  641  be otherwise liable for giving a false statement by reason of
  642  such person’s failure to recite or acknowledge an expunged
  643  criminal history record.
  644         (c) Information relating to the existence of an expunged
  645  criminal history record which is provided in accordance with
  646  paragraph (a) is confidential and exempt from the provisions of
  647  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  648  except that the department shall disclose the existence of a
  649  criminal history record ordered expunged to the entities set
  650  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  651  respective licensing, access authorization, and employment
  652  purposes, and to criminal justice agencies for their respective
  653  criminal justice purposes. It is unlawful for any employee of an
  654  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  655  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  656  disclose information relating to the existence of an expunged
  657  criminal history record of a person seeking employment, access
  658  authorization, or licensure with such entity or contractor,
  659  except to the person to whom the criminal history record relates
  660  or to persons having direct responsibility for employment,
  661  access authorization, or licensure decisions. Any person who
  662  violates this paragraph commits a misdemeanor of the first
  663  degree, punishable as provided in s. 775.082 or s. 775.083.
  664         (5) EXCEPTION PROVIDED.—Notwithstanding the eligibility
  665  requirements prescribed in paragraph (1)(b) and subsection (2),
  666  the department shall issue a certificate of eligibility for
  667  expunction under this subsection to a person who is the subject
  668  of a criminal history record if that person:
  669         (a) Has obtained, and submitted to the department, on a
  670  form provided by the department, a written, certified statement
  671  from the appropriate state attorney or statewide prosecutor
  672  which states whether an information, indictment, or other
  673  charging document was not filed or was dismissed by the state
  674  attorney, or dismissed by the court, because it was found that
  675  the person acted in lawful self-defense pursuant to the
  676  provisions related to justifiable use of force in chapter 776.
  677         (b) Each petition to a court to expunge a criminal history
  678  record pursuant to this subsection is complete only when
  679  accompanied by:
  680         1.A valid certificate of eligibility for expunction issued
  681  by the department pursuant to this subsection.
  682         2.The petitioner’s sworn statement attesting that the
  683  petitioner is eligible for such an expunction to the best of his
  684  or her knowledge or belief.
  685  
  686  Any person who knowingly provides false information on such
  687  sworn statement to the court commits a felony of the third
  688  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  689  775.084.
  690         (c) This subsection does not confer any right to the
  691  expunction of a criminal history record, and any request for
  692  expunction of a criminal history record may be denied at the
  693  discretion of the court.
  694         (d) Subsections (3) and (4) shall apply to expunction
  695  ordered under this subsection.
  696         (e) The department shall, by rule adopted pursuant to
  697  chapter 120, establish procedures pertaining to the application
  698  for and issuance of certificates of eligibility for expunction
  699  under this subsection.
  700         (6)(5) STATUTORY REFERENCES.—Any reference to any other
  701  chapter, section, or subdivision of the Florida Statutes in this
  702  section constitutes a general reference under the doctrine of
  703  incorporation by reference.
  704         Section 11. This act shall take effect upon becoming a law.