Florida Senate - 2017                       CS for CS for SB 118
       
       
        
       By the Committees on Criminal Justice; and Judiciary; and
       Senator Steube
       
       
       
       
       591-02116A-17                                          2017118c2
    1                        A bill to be entitled                      
    2         An act relating to criminal history records;
    3         prohibiting a person or entity engaged in publishing
    4         or disseminating arrest booking photographs from
    5         soliciting or accepting a fee or other payment to
    6         remove the photograph; requiring a person or entity,
    7         within a specified timeframe, to remove an arrest
    8         booking photograph after receipt of a written request;
    9         authorizing a person to bring a civil action to enjoin
   10         such publishing of a photograph; authorizing a court
   11         to impose a civil penalty and award attorney fees and
   12         court costs; providing applicability; amending s.
   13         943.0585, F.S.; revising the elements that must be
   14         attested to by a petitioner in a statement submitted
   15         in support of the expunction of criminal history
   16         records; revising the circumstances under which the
   17         Department of Law Enforcement must issue a certificate
   18         of eligibility for expunction of a criminal history
   19         record; providing an effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. (1)Any person or entity engaged in the business
   24  of publishing or otherwise disseminating arrest booking
   25  photographs of persons who have previously been arrested through
   26  a publicly accessible print or electronic medium may not solicit
   27  or accept a fee or other form of payment to remove the
   28  photographs.
   29         (2)Within 10 calendar days of receipt of a written request
   30  for removal of a booking photograph from a person whose booking
   31  photograph is published or otherwise disseminated, or from his
   32  or her legal representative, the person or entity who published
   33  or otherwise disseminated the photograph shall remove the
   34  photograph without charge.
   35         (3)The person whose arrest booking photograph was
   36  published or otherwise disseminated in the publication or
   37  electronic medium may bring a civil action to enjoin the
   38  continued publication or dissemination of the photograph if the
   39  photograph is not removed within 10 calendar days after receipt
   40  of the written request for removal. The court may impose a civil
   41  penalty of $1,000 per day for noncompliance with an injunction
   42  and shall award reasonable attorney fees and court costs related
   43  to the issuance and enforcement of the injunction. Monies
   44  recovered for civil penalties under this section shall be
   45  deposited into the General Revenue Fund.
   46         (4)Refusal to remove an arrest booking photograph after
   47  written request has been made constitutes an unfair or deceptive
   48  trade practice in accordance with part II of chapter 501.
   49         (5)This section does not apply to any person or entity
   50  that publishes or disseminates information relating to arrest
   51  booking photographs unless the person or entity solicits or
   52  accepts payment to remove the photographs.
   53         Section 2. Paragraph (b) of subsection (1) and paragraphs
   54  (a) and (d) of subsection (2) of section 943.0585, Florida
   55  Statutes, are amended to read:
   56         943.0585 Court-ordered expunction of criminal history
   57  records.—The courts of this state have jurisdiction over their
   58  own procedures, including the maintenance, expunction, and
   59  correction of judicial records containing criminal history
   60  information to the extent such procedures are not inconsistent
   61  with the conditions, responsibilities, and duties established by
   62  this section. Any court of competent jurisdiction may order a
   63  criminal justice agency to expunge the criminal history record
   64  of a minor or an adult who complies with the requirements of
   65  this section. The court shall not order a criminal justice
   66  agency to expunge a criminal history record until the person
   67  seeking to expunge a criminal history record has applied for and
   68  received a certificate of eligibility for expunction pursuant to
   69  subsection (2) or subsection (5). A criminal history record that
   70  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
   71  chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034,
   72  s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
   73  s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in
   74  s. 907.041, or any violation specified as a predicate offense
   75  for registration as a sexual predator pursuant to s. 775.21,
   76  without regard to whether that offense alone is sufficient to
   77  require such registration, or for registration as a sexual
   78  offender pursuant to s. 943.0435, may not be expunged, without
   79  regard to whether adjudication was withheld, if the defendant
   80  was found guilty of or pled guilty or nolo contendere to the
   81  offense, or if the defendant, as a minor, was found to have
   82  committed, or pled guilty or nolo contendere to committing, the
   83  offense as a delinquent act. The court may only order expunction
   84  of a criminal history record pertaining to one arrest or one
   85  incident of alleged criminal activity, except as provided in
   86  this section. The court may, at its sole discretion, order the
   87  expunction of a criminal history record pertaining to more than
   88  one arrest if the additional arrests directly relate to the
   89  original arrest. If the court intends to order the expunction of
   90  records pertaining to such additional arrests, such intent must
   91  be specified in the order. A criminal justice agency may not
   92  expunge any record pertaining to such additional arrests if the
   93  order to expunge does not articulate the intention of the court
   94  to expunge a record pertaining to more than one arrest. This
   95  section does not prevent the court from ordering the expunction
   96  of only a portion of a criminal history record pertaining to one
   97  arrest or one incident of alleged criminal activity.
   98  Notwithstanding any law to the contrary, a criminal justice
   99  agency may comply with laws, court orders, and official requests
  100  of other jurisdictions relating to expunction, correction, or
  101  confidential handling of criminal history records or information
  102  derived therefrom. This section does not confer any right to the
  103  expunction of any criminal history record, and any request for
  104  expunction of a criminal history record may be denied at the
  105  sole discretion of the court.
  106         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  107  petition to a court to expunge a criminal history record is
  108  complete only when accompanied by:
  109         (b) The petitioner’s sworn statement attesting that the
  110  petitioner:
  111         1. Has never, before prior to the date on which the
  112  petition is filed, been adjudicated guilty of a felony criminal
  113  offense or comparable ordinance violation, or been adjudicated
  114  delinquent for committing any felony or a misdemeanor specified
  115  in s. 943.051(3)(b).
  116         2. Has not been adjudicated guilty of a misdemeanor offense
  117  or been adjudicated delinquent for committing a misdemeanor
  118  specified in s. 943.051(3)(b) in the previous 10 years.
  119         3.2. Has not been adjudicated guilty of, or adjudicated
  120  delinquent for committing, any of the acts stemming from the
  121  arrest or alleged criminal activity to which the petition
  122  pertains.
  123         4.3. Has never secured a prior sealing or expunction of a
  124  criminal history record under this section, s. 943.059, former
  125  s. 893.14, former s. 901.33, or former s. 943.058, unless
  126  expunction is sought of a criminal history record previously
  127  sealed for 10 years pursuant to paragraph (2)(h) and the record
  128  is otherwise eligible for expunction.
  129         5.4. Is eligible for such an expunction to the best of his
  130  or her knowledge or belief and does not have any other petition
  131  to expunge or any petition to seal pending before any court.
  132  
  133  Any person who knowingly provides false information on such
  134  sworn statement to the court commits a felony of the third
  135  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  136  775.084.
  137         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  138  petitioning the court to expunge a criminal history record, a
  139  person seeking to expunge a criminal history record shall apply
  140  to the department for a certificate of eligibility for
  141  expunction. The department shall, by rule adopted pursuant to
  142  chapter 120, establish procedures pertaining to the application
  143  for and issuance of certificates of eligibility for expunction.
  144  A certificate of eligibility for expunction is valid for 12
  145  months after the date stamped on the certificate when issued by
  146  the department. After that time, the petitioner must reapply to
  147  the department for a new certificate of eligibility. Eligibility
  148  for a renewed certification of eligibility must be based on the
  149  status of the applicant and the law in effect at the time of the
  150  renewal application. The department shall issue a certificate of
  151  eligibility for expunction to a person who is the subject of a
  152  criminal history record if that person:
  153         (a) Has obtained, and submitted to the department, a
  154  written, certified statement from the appropriate state attorney
  155  or statewide prosecutor which indicates:
  156         1. That an indictment, information, or other charging
  157  document was not filed or issued in the case.
  158         2. That an indictment, information, or other charging
  159  document, if filed or issued in the case, was dismissed or nolle
  160  prosequi by the state attorney or statewide prosecutor, or was
  161  dismissed by a court of competent jurisdiction, that a judgment
  162  of acquittal was rendered by a judge, or that a verdict of not
  163  guilty was rendered by a judge or jury and that none of the
  164  charges related to the arrest or alleged criminal activity to
  165  which the petition to expunge pertains resulted in a trial,
  166  without regard to whether the outcome of the trial was other
  167  than an adjudication of guilt.
  168         3. That the criminal history record does not relate to a
  169  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  170  former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025,
  171  s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145,
  172  s. 893.135, s. 916.1075, a violation enumerated in s. 907.041,
  173  or any violation specified as a predicate offense for
  174  registration as a sexual predator pursuant to s. 775.21, without
  175  regard to whether that offense alone is sufficient to require
  176  such registration, or for registration as a sexual offender
  177  pursuant to s. 943.0435, where the defendant was found guilty
  178  of, or pled guilty or nolo contendere to any such offense, or
  179  that the defendant, as a minor, was found to have committed, or
  180  pled guilty or nolo contendere to committing, such an offense as
  181  a delinquent act, without regard to whether adjudication was
  182  withheld.
  183         (d)1. Has never, before prior to the date on which the
  184  application for a certificate of eligibility is filed, been
  185  adjudicated guilty of a felony criminal offense or comparable
  186  ordinance violation, or been adjudicated delinquent for
  187  committing any felony or a misdemeanor specified in s.
  188  943.051(3)(b).
  189         2. Has not been adjudicated guilty of a misdemeanor offense
  190  or been adjudicated delinquent for committing a misdemeanor
  191  specified in s. 943.051(3)(b) in the previous 10 years.
  192         Section 3. This act shall take effect July 1, 2017.