CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
CHAMBER ACTION
Senate House
.
.
1 .
.
2 .
.
3 .
.
4
5 ORIGINAL STAMP BELOW
6
7
8
9
10
11 Representative(s) Reddick and Ball offered the following:
12
13 Amendment
14 On page 62, between lines 21 and 22 of the bill
15
16 insert:
17 Section 49. Sections 49. and 50. may be cited as the
18 "Nathan McCall and Anderson C. Hill, II, Forgiveness Act."
19 Section 50. Section 943.059, Florida Statutes, is
20 amended to read:
21 943.059 Court-ordered sealing of criminal history
22 records.--The courts of this state shall continue to have
23 jurisdiction over their own procedures, including the
24 maintenance, sealing, and correction of judicial records
25 containing criminal history information to the extent such
26 procedures are not inconsistent with the conditions,
27 responsibilities, and duties established by this section. Any
28 court of competent jurisdiction may order a criminal justice
29 agency to seal the criminal history record of a minor or an
30 adult who complies with the requirements of this section. The
31 court shall not order a criminal justice agency to seal a
1
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 criminal history record until the person seeking to seal a
2 criminal history record has applied for and received a
3 certificate of eligibility for sealing pursuant to subsection
4 (2). A criminal history record that relates to a violation of
5 chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,
6 s. 893.135, or a violation enumerated in s. 907.041 may not be
7 sealed, without regard to whether adjudication was withheld,
8 if the defendant was found guilty of or pled guilty or nolo
9 contendere to the offense, or if the defendant, as a minor,
10 was found to have committed or pled guilty or nolo contendere
11 to committing the offense as a delinquent act. The court may
12 only order sealing of a criminal history record pertaining to
13 one arrest or one incident of alleged criminal activity,
14 except as provided in this section. The court may, at its sole
15 discretion, order the sealing of a criminal history record
16 pertaining to more than one arrest if the additional arrests
17 directly relate to the original arrest except as provided in
18 subsection (3). If the court intends to order the sealing of
19 records pertaining to such additional arrests, such intent
20 must be specified in the order. A criminal justice agency may
21 not seal any record pertaining to such additional arrests if
22 the order to seal does not articulate the intention of the
23 court to seal records pertaining to more than one arrest.
24 This section does not prevent the court from ordering the
25 sealing of only a portion of a criminal history record
26 pertaining to one arrest or one incident of alleged criminal
27 activity. Notwithstanding any law to the contrary, a criminal
28 justice agency may comply with laws, court orders, and
29 official requests of other jurisdictions relating to sealing,
30 correction, or confidential handling of criminal history
31 records or information derived therefrom. This section does
2
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 not confer any right to the sealing of any criminal history
2 record, and any request for sealing a criminal history record
3 may be denied at the sole discretion of the court.
4 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
5 petition to a court to seal a criminal history record is
6 complete only when accompanied by:
7 (a) A certificate of eligibility for sealing issued by
8 the department pursuant to subsection (2).
9 (b) The petitioner's sworn statement attesting that
10 the petitioner:
11 1. Has never previously been adjudicated guilty of a
12 criminal offense or comparable ordinance violation or
13 adjudicated delinquent for committing a felony or a
14 misdemeanor specified in s. 943.051(3)(b).
15 2. Has not been adjudicated guilty of or adjudicated
16 delinquent for committing any of the acts stemming from the
17 arrest or alleged criminal activity to which the petition to
18 seal pertains.
19 3. Has never secured a prior sealing or expunction of
20 a criminal history record under this section, former s.
21 893.14, former s. 901.33, former s. 943.058, or from any
22 jurisdiction outside the state.
23 4. Is eligible for such a sealing to the best of his
24 or her knowledge or belief and does not have any other
25 petition to seal or any petition to expunge pending before any
26 court.
27
28 Subparagraphs 1., 2. and 3. do not apply and are not necessary
29 if a person has obtained a certificate pursuant to subsection
30 (3).
31
3
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 Any person who knowingly provides false information on such
2 sworn statement to the court commits a felony of the third
3 degree, punishable as provided in s. 775.082, s. 775.083, or
4 s. 775.084.
5 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
6 petitioning the court to seal a criminal history record, a
7 person seeking to seal a criminal history record shall apply
8 to the department for a certificate of eligibility for
9 sealing. The department shall, by rule adopted pursuant to
10 chapter 120, establish procedures pertaining to the
11 application for and issuance of certificates of eligibility
12 for sealing. The department shall issue a certificate of
13 eligibility for sealing to a person who is the subject of a
14 criminal history record provided that such person:
15 (a) Has submitted to the department a certified copy
16 of the disposition of the charge to which the petition to seal
17 pertains.
18 (b) Remits a $75 processing fee to the department for
19 placement in the Department of Law Enforcement Operating Trust
20 Fund, unless such fee is waived by the executive director.
21 (c) Has never previously been adjudicated guilty of a
22 criminal offense or comparable ordinance violation or
23 adjudicated delinquent for committing a felony or a
24 misdemeanor specified in s. 943.051(3)(b).
25 (d) Has not been adjudicated guilty of or adjudicated
26 delinquent for committing any of the acts stemming from the
27 arrest or alleged criminal activity to which the petition to
28 seal pertains.
29 (e) Has never secured a prior sealing or expunction of
30 a criminal history record under this section, former s.
31 893.14, former s. 901.33, or former s. 943.058.
4
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 (f) Is no longer under court supervision applicable to
2 the disposition of the arrest or alleged criminal activity to
3 which the petition to seal pertains.
4 (3) ALTERNATE CERTIFICATE FOR ELIGIBILITY FOR
5 SEALING. Notwithstanding subsection (2), the department
6 shall, by rule adopted pursuant to chapter 120, establish
7 procedures pertaining to the application for and issuance of
8 certificates of eligibility for sealing for a person who meets
9 all of the following requirements:
10 (a) Each of the offenses for which sealing of the
11 criminal history record is sought is a third degree felony or
12 a misdemeanor for which the person was arrested, convicted, or
13 had adjudication withheld. This section does not apply to
14 records of the following offenses which shall not be sealed
15 pursuant to this subsection:
16 1. Offenses for driving under the influence as defined
17 in s. 316.193.
18 2. Offenses of domestic violence.
19 (b) The person has never been convicted, or received a
20 withhold of adjudication, or been adjudicated delinquent for
21 any of the following offenses:
22 1. All capital felonies, life felonies, felonies of
23 the first degree, or felonies of the second degree.
24 2. Any violation of chapter 794, chapter 800, chapter
25 827, chapter 839, and s. 847.0145.
26 (c) The person was under 20 years of age when the
27 person last committed an offense for which the person was
28 convicted or received an adjudication withheld.
29 (d) The person is 25 years of age or older at the
30 time the expunction is sought.
31 (e) The person has not committed a criminal offense
5
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 from the time the person became 20 years of age to the time
2 the person became 25 years of age or until the person applied
3 for sealing, whichever is a longer period of time.
4 (f) The person had not been confined in a detention
5 facility, jail, prison, or other correctional facility as the
6 result of a sentence for a criminal offense when the person
7 was between 20 and 25 years of age, regardless of the age of
8 the offender when the sentence was imposed.
9 (g) The person has remitted a $75 processing fee to
10 the department for placement in the Department of Law
11 Enforcement Operating Trust Fund, unless such fee is waived by
12 the executive director.
13 (h) The person is not under court supervision for
14 criminal activity and the person does not have a pending
15 criminal charge.
16 (4)(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
17 (a) In judicial proceedings under this section, a copy
18 of the completed petition to seal shall be served upon the
19 appropriate state attorney or the statewide prosecutor and
20 upon the arresting agency; however, it is not necessary to
21 make any agency other than the state a party. The appropriate
22 state attorney or the statewide prosecutor and the arresting
23 agency may respond to the court regarding the completed
24 petition to seal.
25 (b) If relief is granted by the court, the clerk of
26 the court shall certify copies of the order to the appropriate
27 state attorney or the statewide prosecutor and to the
28 arresting agency. The arresting agency is responsible for
29 forwarding the order to any other agency to which the
30 arresting agency disseminated the criminal history record
31 information to which the order pertains. The department shall
6
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 forward the order to seal to the Federal Bureau of
2 Investigation. The clerk of the court shall certify a copy of
3 the order to any other agency which the records of the court
4 reflect has received the criminal history record from the
5 court.
6 (c) For an order to seal entered by a court prior to
7 July 1, 1992, the department shall notify the appropriate
8 state attorney or statewide prosecutor of any order to seal
9 which is contrary to law because the person who is the subject
10 of the record has previously been convicted of a crime or
11 comparable ordinance violation or has had a prior criminal
12 history record sealed or expunged. Upon receipt of such
13 notice, the appropriate state attorney or statewide prosecutor
14 shall take action, within 60 days, to correct the record and
15 petition the court to void the order to seal. The department
16 shall seal the record until such time as the order is voided
17 by the court.
18 (d) On or after July 1, 1992, the department or any
19 other criminal justice agency is not required to act on an
20 order to seal entered by a court when such order does not
21 comply with the requirements of this section. Upon receipt of
22 such an order, the department must notify the issuing court,
23 the appropriate state attorney or statewide prosecutor, the
24 petitioner or the petitioner's attorney, and the arresting
25 agency of the reason for noncompliance. The appropriate state
26 attorney or statewide prosecutor shall take action within 60
27 days to correct the record and petition the court to void the
28 order. No cause of action, including contempt of court, shall
29 arise against any criminal justice agency for failure to
30 comply with an order to seal when the petitioner for such
31 order failed to obtain the certificate of eligibility as
7
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 required by this section or when such order does not comply
2 with the requirements of this section.
3 (e) An order sealing a criminal history record
4 pursuant to this section does not require that such record be
5 surrendered to the court, and such record shall continue to be
6 maintained by the department and other criminal justice
7 agencies.
8 (5)(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
9 criminal history record of a minor or an adult which is
10 ordered sealed by a court of competent jurisdiction pursuant
11 to this section is confidential and exempt from the provisions
12 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
13 and is available only to the person who is the subject of the
14 record, to the subject's attorney, to criminal justice
15 agencies for their respective criminal justice purposes, or to
16 those entities set forth in subparagraphs (a)1., 4., 5., and
17 6. for their respective licensing and employment purposes.
18 (a) The subject of a criminal history record sealed
19 under this section or under other provisions of law, including
20 former s. 893.14, former s. 901.33, and former s. 943.058, may
21 lawfully deny or fail to acknowledge the arrests covered by
22 the sealed record, except when the subject of the record:
23 1. Is a candidate for employment with a criminal
24 justice agency;
25 2. Is a defendant in a criminal prosecution;
26 3. Concurrently or subsequently petitions for relief
27 under this section or s. 943.0585;
28 4. Is a candidate for admission to The Florida Bar;
29 5. Is seeking to be employed or licensed by or to
30 contract with the Department of Health and Rehabilitative
31 Services or the Department of Juvenile Justice or to be
8
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 employed or used by such contractor or licensee in a sensitive
2 position having direct contact with children, the
3 developmentally disabled, the aged, or the elderly as provided
4 in s. 39.076, s. 110.1127(3), s. 393.063(14), s. 394.4572(1),
5 s. 397.451, s. 402.302(8), s. 402.313(3), s. 409.175(2)(i), s.
6 415.102(4), s. 415.103, or chapter 400; or
7 6. Is seeking to be employed or licensed by the Office
8 of Teacher Education, Certification, Staff Development, and
9 Professional Practices of the Department of Education, any
10 district school board, or any local governmental entity which
11 licenses child care facilities.
12 (b) Subject to the exceptions in paragraph (a), a
13 person who has been granted a sealing under this section,
14 former s. 893.14, former s. 901.33, or former s. 943.058 may
15 not be held under any provision of law of this state to commit
16 perjury or to be otherwise liable for giving a false statement
17 by reason of such person's failure to recite or acknowledge a
18 sealed criminal history record.
19 (c) Information relating to the existence of a sealed
20 criminal record provided in accordance with the provisions of
21 paragraph (a) is confidential and exempt from the provisions
22 of s. 119.07(1) and s. 24(a), Art. I of the State
23 Constitution, except that the department shall disclose the
24 sealed criminal history record to the entities set forth in
25 subparagraphs (a)1., 4., 5., and 6. for their respective
26 licensing and employment purposes. It is unlawful for any
27 employee of an entity set forth in subparagraph (a)1.,
28 subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
29 to disclose information relating to the existence of a sealed
30 criminal history record of a person seeking employment or
31 licensure with such entity or contractor, except to the person
9
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889
HOUSE AMENDMENT
Bill No. CS for SB 1132, 1st Eng.
Amendment No. 01 (for drafter's use only)
1 to whom the criminal history record relates or to persons
2 having direct responsibility for employment or licensure
3 decisions. Any person who violates the provisions of this
4 paragraph commits a misdemeanor of the first degree,
5 punishable as provided in s. 775.082 or s. 775.083.
6
7
8 ================ T I T L E A M E N D M E N T ===============
9 And the title is amended as follows:
10 On page 5 , line 3,
11
12 after the semicolon, insert :
13 creating the "Nathan McCall and Anderson C.
14 Hill, II, Forgiveness Act"; amending s.
15 943.059, F.S.; providing exception to
16 limitation that sealing may only be related to
17 one arrest or arrests related to original
18 arrest; providing alternative procedure for
19 eligibility for sealing; providing for adoption
20 of rules by the Department of Law Enforcement;
21 requiring that sealing is limited to third
22 degree felonies and misdemeanors; requires that
23 offenses to be sealed are not a violation of s.
24 316.193, or domestic violence; authorizes
25 sealing only if person never convicted or
26 received adjudication withheld for a second
27 degree felony or higher degree felony, and
28 never committed any violation of chapters 794,
29 800, 827, 839, and s. 847.0145; provides
30 additional requirements for sealing including a
31 $75.00 processing fee;
10
File original & 9 copies 04/29/98
hcp0004 04:53 pm 01132-0039-730889