Florida Senate - 2017                                     SB 118
       
       
        
       By Senator Steube
       
       23-00202-17                                            2017118__
    1                        A bill to be entitled                      
    2         An act relating to expunction of criminal history
    3         records; amending s. 943.0585, F.S.; revising the
    4         eligibility requirements for expunction of criminal
    5         history records to include instances in which a
    6         verdict of not guilty is rendered; requiring a person
    7         or entity, within a specified timeframe, to remove an
    8         expunged criminal history record under certain
    9         circumstances; authorizing a civil action for
   10         injunction under certain circumstances; authorizing a
   11         court to impose a civil penalty and award attorney
   12         fees and court costs; providing applicability;
   13         providing criminal penalties; requiring a court to
   14         order the suspension of an Internet protocol (IP)
   15         address under certain circumstances; defining the term
   16         “conviction”; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Section 943.0585, Florida Statutes, is amended
   21  to read:
   22         943.0585 Court-ordered expunction of criminal history
   23  records.—The courts of this state have jurisdiction over their
   24  own procedures, including the maintenance, expunction, and
   25  correction of judicial records containing criminal history
   26  information to the extent such procedures are not inconsistent
   27  with the conditions, responsibilities, and duties established by
   28  this section. Any court of competent jurisdiction may order a
   29  criminal justice agency to expunge the criminal history record
   30  of a minor or an adult who complies with the requirements of
   31  this section. The court shall not order a criminal justice
   32  agency to expunge a criminal history record until the person
   33  seeking to expunge a criminal history record has applied for and
   34  received a certificate of eligibility for expunction pursuant to
   35  subsection (2) or subsection (5). A criminal history record that
   36  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
   37  chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034,
   38  s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
   39  s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in
   40  s. 907.041, or any violation specified as a predicate offense
   41  for registration as a sexual predator pursuant to s. 775.21,
   42  without regard to whether that offense alone is sufficient to
   43  require such registration, or for registration as a sexual
   44  offender pursuant to s. 943.0435, may not be expunged, without
   45  regard to whether adjudication was withheld, if the defendant
   46  was found guilty of or pled guilty or nolo contendere to the
   47  offense, or if the defendant, as a minor, was found to have
   48  committed, or pled guilty or nolo contendere to committing, the
   49  offense as a delinquent act. The court may only order expunction
   50  of a criminal history record pertaining to one arrest or one
   51  incident of alleged criminal activity, except as provided in
   52  this section. The court may, at its sole discretion, order the
   53  expunction of a criminal history record pertaining to more than
   54  one arrest if the additional arrests directly relate to the
   55  original arrest. If the court intends to order the expunction of
   56  records pertaining to such additional arrests, such intent must
   57  be specified in the order. A criminal justice agency may not
   58  expunge any record pertaining to such additional arrests if the
   59  order to expunge does not articulate the intention of the court
   60  to expunge a record pertaining to more than one arrest. This
   61  section does not prevent the court from ordering the expunction
   62  of only a portion of a criminal history record pertaining to one
   63  arrest or one incident of alleged criminal activity.
   64  Notwithstanding any law to the contrary, a criminal justice
   65  agency may comply with laws, court orders, and official requests
   66  of other jurisdictions relating to expunction, correction, or
   67  confidential handling of criminal history records or information
   68  derived therefrom. This section does not confer any right to the
   69  expunction of any criminal history record, and any request for
   70  expunction of a criminal history record may be denied at the
   71  sole discretion of the court.
   72         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
   73  petition to a court to expunge a criminal history record is
   74  complete only when accompanied by:
   75         (a) A valid certificate of eligibility for expunction
   76  issued by the department pursuant to subsection (2).
   77         (b) The petitioner’s sworn statement attesting that the
   78  petitioner:
   79         1. Has never, prior to the date on which the petition is
   80  filed, been adjudicated guilty of a criminal offense or
   81  comparable ordinance violation, or been adjudicated delinquent
   82  for committing any felony or a misdemeanor specified in s.
   83  943.051(3)(b).
   84         2. Has not been adjudicated guilty of, or adjudicated
   85  delinquent for committing, any of the acts stemming from the
   86  arrest or alleged criminal activity to which the petition
   87  pertains.
   88         3.a. Has never secured a prior sealing or expunction of a
   89  criminal history record under this section, s. 943.059, former
   90  s. 893.14, former s. 901.33, or former s. 943.058, unless
   91  expunction is sought of a criminal history record previously
   92  sealed for 10 years pursuant to paragraph (2)(h) and the record
   93  is otherwise eligible for expunction; or
   94         b. Is seeking to expunge a criminal history record
   95  associated with a not guilty verdict.
   96         4. Is eligible for such an expunction to the best of his or
   97  her knowledge or belief and does not have any other petition to
   98  expunge or any petition to seal pending before any court.
   99  
  100  Any person who knowingly provides false information on such
  101  sworn statement to the court commits a felony of the third
  102  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  103  775.084.
  104         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  105  petitioning the court to expunge a criminal history record, a
  106  person seeking to expunge a criminal history record shall apply
  107  to the department for a certificate of eligibility for
  108  expunction. The department shall, by rule adopted pursuant to
  109  chapter 120, establish procedures pertaining to the application
  110  for and issuance of certificates of eligibility for expunction.
  111  A certificate of eligibility for expunction is valid for 12
  112  months after the date stamped on the certificate when issued by
  113  the department. After that time, the petitioner must reapply to
  114  the department for a new certificate of eligibility. Eligibility
  115  for a renewed certification of eligibility must be based on the
  116  status of the applicant and the law in effect at the time of the
  117  renewal application. The department shall issue a certificate of
  118  eligibility for expunction to a person who is the subject of a
  119  criminal history record if that person:
  120         (a) Has obtained, and submitted to the department, a
  121  written, certified statement from the appropriate state attorney
  122  or statewide prosecutor which indicates:
  123         1. That an indictment, information, or other charging
  124  document was not filed or issued in the case.
  125         2. That an indictment, information, or other charging
  126  document, if filed or issued in the case, was dismissed or nolle
  127  prosequi by the state attorney or statewide prosecutor, or was
  128  dismissed by a court of competent jurisdiction, or that a
  129  verdict of not guilty was rendered by a judge or jury and that
  130  none of the charges related to the arrest or alleged criminal
  131  activity to which the petition to expunge pertains resulted in a
  132  trial, without regard to whether the outcome of the trial was
  133  other than an adjudication of guilt.
  134         3. That the criminal history record does not relate to a
  135  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  136  former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025,
  137  s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145,
  138  s. 893.135, s. 916.1075, a violation enumerated in s. 907.041,
  139  or any violation specified as a predicate offense for
  140  registration as a sexual predator pursuant to s. 775.21, without
  141  regard to whether that offense alone is sufficient to require
  142  such registration, or for registration as a sexual offender
  143  pursuant to s. 943.0435, where the defendant was found guilty
  144  of, or pled guilty or nolo contendere to any such offense, or
  145  that the defendant, as a minor, was found to have committed, or
  146  pled guilty or nolo contendere to committing, such an offense as
  147  a delinquent act, without regard to whether adjudication was
  148  withheld.
  149         (b) Remits a $75 processing fee to the department for
  150  placement in the Department of Law Enforcement Operating Trust
  151  Fund, unless such fee is waived by the executive director.
  152         (c) Has submitted to the department a certified copy of the
  153  disposition of the charge to which the petition to expunge
  154  pertains.
  155         (d) Has never, prior to the date on which the application
  156  for a certificate of eligibility is filed, been adjudicated
  157  guilty of a criminal offense or comparable ordinance violation,
  158  or been adjudicated delinquent for committing any felony or a
  159  misdemeanor specified in s. 943.051(3)(b).
  160         (e) Has not been adjudicated guilty of, or adjudicated
  161  delinquent for committing, any of the acts stemming from the
  162  arrest or alleged criminal activity to which the petition to
  163  expunge pertains.
  164         (f)1. Has never secured a prior sealing or expunction of a
  165  criminal history record under this section, s. 943.059, former
  166  s. 893.14, former s. 901.33, or former s. 943.058, unless
  167  expunction is sought of a criminal history record previously
  168  sealed for 10 years pursuant to paragraph (h) and the record is
  169  otherwise eligible for expunction; or
  170         2. Is seeking to expunge a criminal history record
  171  associated with a not guilty verdict.
  172         (g) Is no longer under court supervision applicable to the
  173  disposition of the arrest or alleged criminal activity to which
  174  the petition to expunge pertains.
  175         (h) Has previously obtained a court order sealing the
  176  record under this section, former s. 893.14, former s. 901.33,
  177  or former s. 943.058 for a minimum of 10 years because
  178  adjudication was withheld or because all charges related to the
  179  arrest or alleged criminal activity to which the petition to
  180  expunge pertains were not dismissed prior to trial, without
  181  regard to whether the outcome of the trial was other than an
  182  adjudication of guilt. The requirement for the record to have
  183  previously been sealed for a minimum of 10 years does not apply
  184  when a plea was not entered or all charges related to the arrest
  185  or alleged criminal activity to which the petition to expunge
  186  pertains were dismissed prior to trial.
  187         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  188         (a) In judicial proceedings under this section, a copy of
  189  the completed petition to expunge shall be served upon the
  190  appropriate state attorney or the statewide prosecutor and upon
  191  the arresting agency; however, it is not necessary to make any
  192  agency other than the state a party. The appropriate state
  193  attorney or the statewide prosecutor and the arresting agency
  194  may respond to the court regarding the completed petition to
  195  expunge.
  196         (b) If relief is granted by the court, the clerk of the
  197  court shall certify copies of the order to the appropriate state
  198  attorney or the statewide prosecutor and the arresting agency.
  199  The arresting agency is responsible for forwarding the order to
  200  any other agency to which the arresting agency disseminated the
  201  criminal history record information to which the order pertains.
  202  The department shall forward the order to expunge to the Federal
  203  Bureau of Investigation. The clerk of the court shall certify a
  204  copy of the order to any other agency which the records of the
  205  court reflect has received the criminal history record from the
  206  court.
  207         (c) For an order to expunge entered by a court prior to
  208  July 1, 1992, the department shall notify the appropriate state
  209  attorney or statewide prosecutor of an order to expunge which is
  210  contrary to law because the person who is the subject of the
  211  record has previously been convicted of a crime or comparable
  212  ordinance violation or has had a prior criminal history record
  213  sealed or expunged. Upon receipt of such notice, the appropriate
  214  state attorney or statewide prosecutor shall take action, within
  215  60 days, to correct the record and petition the court to void
  216  the order to expunge. The department shall seal the record until
  217  such time as the order is voided by the court.
  218         (d) On or after July 1, 1992, the department or any other
  219  criminal justice agency is not required to act on an order to
  220  expunge entered by a court when such order does not comply with
  221  the requirements of this section. Upon receipt of such an order,
  222  the department must notify the issuing court, the appropriate
  223  state attorney or statewide prosecutor, the petitioner or the
  224  petitioner’s attorney, and the arresting agency of the reason
  225  for noncompliance. The appropriate state attorney or statewide
  226  prosecutor shall take action within 60 days to correct the
  227  record and petition the court to void the order. No cause of
  228  action, including contempt of court, shall arise against any
  229  criminal justice agency for failure to comply with an order to
  230  expunge when the petitioner for such order failed to obtain the
  231  certificate of eligibility as required by this section or such
  232  order does not otherwise comply with the requirements of this
  233  section.
  234         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  235  criminal history record of a minor or an adult which is ordered
  236  expunged by a court of competent jurisdiction pursuant to this
  237  section must be physically destroyed or obliterated by any
  238  criminal justice agency having custody of such record; except
  239  that any criminal history record in the custody of the
  240  department must be retained in all cases. A criminal history
  241  record ordered expunged that is retained by the department is
  242  confidential and exempt from the provisions of s. 119.07(1) and
  243  s. 24(a), Art. I of the State Constitution and not available to
  244  any person or entity except upon order of a court of competent
  245  jurisdiction. A criminal justice agency may retain a notation
  246  indicating compliance with an order to expunge.
  247         (a) The person who is the subject of a criminal history
  248  record that is expunged under this section or under other
  249  provisions of law, including former s. 893.14, former s. 901.33,
  250  and former s. 943.058, may lawfully deny or fail to acknowledge
  251  the arrests covered by the expunged record, except when the
  252  subject of the record:
  253         1. Is a candidate for employment with a criminal justice
  254  agency;
  255         2. Is a defendant in a criminal prosecution;
  256         3. Concurrently or subsequently petitions for relief under
  257  this section, s. 943.0583, or s. 943.059;
  258         4. Is a candidate for admission to The Florida Bar;
  259         5. Is seeking to be employed or licensed by or to contract
  260  with the Department of Children and Families, the Division of
  261  Vocational Rehabilitation within the Department of Education,
  262  the Agency for Health Care Administration, the Agency for
  263  Persons with Disabilities, the Department of Health, the
  264  Department of Elderly Affairs, or the Department of Juvenile
  265  Justice or to be employed or used by such contractor or licensee
  266  in a sensitive position having direct contact with children, the
  267  disabled, or the elderly;
  268         6. Is seeking to be employed or licensed by the Department
  269  of Education, any district school board, any university
  270  laboratory school, any charter school, any private or parochial
  271  school, or any local governmental entity that licenses child
  272  care facilities;
  273         7. Is seeking to be licensed by the Division of Insurance
  274  Agent and Agency Services within the Department of Financial
  275  Services; or
  276         8. Is seeking to be appointed as a guardian pursuant to s.
  277  744.3125.
  278         (b) Subject to the exceptions in paragraph (a), a person
  279  who has been granted an expunction under this section, former s.
  280  893.14, former s. 901.33, or former s. 943.058 may not be held
  281  under any provision of law of this state to commit perjury or to
  282  be otherwise liable for giving a false statement by reason of
  283  such person’s failure to recite or acknowledge an expunged
  284  criminal history record.
  285         (c) Information relating to the existence of an expunged
  286  criminal history record which is provided in accordance with
  287  paragraph (a) is confidential and exempt from the provisions of
  288  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  289  except that the department shall disclose the existence of a
  290  criminal history record ordered expunged to the entities set
  291  forth in subparagraphs (a)1., 4., 5., 6., 7., and 8. for their
  292  respective licensing, access authorization, and employment
  293  purposes, and to criminal justice agencies for their respective
  294  criminal justice purposes. It is unlawful for any employee of an
  295  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  296  subparagraph (a)5., subparagraph (a)6., subparagraph (a)7., or
  297  subparagraph (a)8. to disclose information relating to the
  298  existence of an expunged criminal history record of a person
  299  seeking employment, access authorization, or licensure with such
  300  entity or contractor, except to the person to whom the criminal
  301  history record relates or to persons having direct
  302  responsibility for employment, access authorization, or
  303  licensure decisions. Any person who violates this paragraph
  304  commits a misdemeanor of the first degree, punishable as
  305  provided in s. 775.082 or s. 775.083.
  306         (d)1. Any person or entity who publishes, displays, or in
  307  any way disseminates information or an image of a person whose
  308  criminal history record has been expunged, upon receipt of a
  309  certified copy of an order granting a petition to expunge, shall
  310  remove such information or image without further notice or cost
  311  to the person who is the subject of the petition within 14
  312  calendar days after receipt of the certified copy of the order
  313  of expunction. A person who has had his or her criminal history
  314  record expunged may bring a civil action to enjoin further
  315  publication, display, or dissemination if such criminal history
  316  record is not removed within 14 days after receipt of the
  317  certified copy of the order of expunction. A court may impose a
  318  civil penalty of $500 per day for noncompliance with an order of
  319  injunction and shall award reasonable attorney fees and court
  320  costs related to the issuance of the order. This paragraph does
  321  not apply to a state, regional, county, or municipal
  322  governmental entity.
  323         2. Any person or entity who publishes, displays, or in any
  324  way disseminates information or an image of a person whose
  325  criminal history record has been expunged, upon receipt of a
  326  certified copy of an order granting a petition to expunge, who
  327  fails to remove such information or image within 14 calendar
  328  days after receipt of the certified copy of the order of
  329  expunction and who has previously been fined for noncompliance
  330  with an order of injunction pursuant to subparagraph 1. commits
  331  a misdemeanor of the second degree, punishable as provided in s.
  332  775.082 or s. 775.083. A person who commits a third or
  333  subsequent violation commits a misdemeanor of the first degree,
  334  punishable as provided in s. 775.082 or s. 775.083.
  335         3. If a person is convicted under subparagraph 2., a court
  336  shall order the suspension of any Internet protocol (IP) address
  337  carrying the publication for a period of no less than 1 year
  338  from the date of conviction. As used in this subparagraph, the
  339  term “conviction” means a finding of guilt or the acceptance of
  340  a plea of guilty or nolo contendere, regardless of whether
  341  adjudication is withheld.
  342         (5) EXCEPTION FOR LAWFUL SELF-DEFENSE.—Notwithstanding the
  343  eligibility requirements prescribed in paragraph (1)(b) and
  344  subsection (2), the department shall issue a certificate of
  345  eligibility for expunction under this subsection to a person who
  346  is the subject of a criminal history record if that person:
  347         (a) Has obtained, and submitted to the department, on a
  348  form provided by the department, a written, certified statement
  349  from the appropriate state attorney or statewide prosecutor
  350  which states whether an information, indictment, or other
  351  charging document was not filed or was dismissed by the state
  352  attorney, or dismissed by the court, because it was found that
  353  the person acted in lawful self-defense pursuant to the
  354  provisions related to justifiable use of force in chapter 776.
  355         (b) Each petition to a court to expunge a criminal history
  356  record pursuant to this subsection is complete only when
  357  accompanied by:
  358         1. A valid certificate of eligibility for expunction issued
  359  by the department pursuant to this subsection.
  360         2. The petitioner’s sworn statement attesting that the
  361  petitioner is eligible for such an expunction to the best of his
  362  or her knowledge or belief.
  363  
  364  Any person who knowingly provides false information on such
  365  sworn statement to the court commits a felony of the third
  366  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  367  775.084.
  368         (c) This subsection does not confer any right to the
  369  expunction of a criminal history record, and any request for
  370  expunction of a criminal history record may be denied at the
  371  discretion of the court.
  372         (d) Subsections (3) and (4) shall apply to expunction
  373  ordered under this subsection.
  374         (e) The department shall, by rule adopted pursuant to
  375  chapter 120, establish procedures pertaining to the application
  376  for and issuance of certificates of eligibility for expunction
  377  under this subsection.
  378         (6) STATUTORY REFERENCES.—Any reference to any other
  379  chapter, section, or subdivision of the Florida Statutes in this
  380  section constitutes a general reference under the doctrine of
  381  incorporation by reference.
  382         Section 2. This act shall take effect July 1, 2017.