CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  The Committee on Governmental Rules & Regulations offered the

12  following:

13

14         Amendment (with title amendment) 

15  Remove from the bill:  Everything after the enacting clause

16

17  and insert in lieu thereof:

18         Section 1.  This act may be cited as the "Nathan McCall

19  and Anderson C. Hill, II, Forgiveness Act."

20         Section 2.  Section 943.059, Florida Statutes, is

21  amended to read:

22         943.059  Court-ordered sealing of criminal history

23  records.--The courts of this state shall continue to have

24  jurisdiction over their own procedures, including the

25  maintenance, sealing, and correction of judicial records

26  containing criminal history information to the extent such

27  procedures are not inconsistent with the conditions,

28  responsibilities, and duties established by this section.  Any

29  court of competent jurisdiction may order a criminal justice

30  agency to seal the criminal history record of a minor or an

31  adult who complies with the requirements of this section.  The

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  court shall not order a criminal justice agency to seal a

 2  criminal history record until the person seeking to seal a

 3  criminal history record has applied for and received a

 4  certificate of eligibility for sealing pursuant to subsection

 5  (2).  A criminal history record that relates to a violation of

 6  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

 7  s. 893.135, or a violation enumerated in s. 907.041 may not be

 8  sealed, without regard to whether adjudication was withheld,

 9  if the defendant was found guilty of or pled guilty or nolo

10  contendere to the offense, or if the defendant, as a minor,

11  was found to have committed or pled guilty or nolo contendere

12  to committing the offense as a delinquent act.  The court may

13  only order sealing of a criminal history record pertaining to

14  one arrest or one incident of alleged criminal activity,

15  except as provided in this section. The court may, at its sole

16  discretion, order the sealing of a criminal history record

17  pertaining to more than one arrest if the additional arrests

18  directly relate to the original arrest except as provided in

19  subsection (3).  If the court intends to order the sealing of

20  records pertaining to such additional arrests, such intent

21  must be specified in the order.  A criminal justice agency may

22  not seal any record pertaining to such additional arrests if

23  the order to seal does not articulate the intention of the

24  court to seal records pertaining to more than one arrest.

25  This section does not prevent the court from ordering the

26  sealing of only a portion of a criminal history record

27  pertaining to one arrest or one incident of alleged criminal

28  activity. Notwithstanding any law to the contrary, a criminal

29  justice agency may comply with laws, court orders, and

30  official requests of other jurisdictions relating to sealing,

31  correction, or confidential handling of criminal history

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  records or information derived therefrom.  This section does

 2  not confer any right to the sealing of any criminal history

 3  record, and any request for sealing a criminal history record

 4  may be denied at the sole discretion of the court.

 5         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

 6  petition to a court to seal a criminal history record is

 7  complete only when accompanied by:

 8         (a)  A certificate of eligibility for sealing issued by

 9  the department pursuant to subsection (2).

10         (b)  The petitioner's sworn statement attesting that

11  the petitioner:

12         1.  Has never previously been adjudicated guilty of a

13  criminal offense or comparable ordinance violation or

14  adjudicated delinquent for committing a felony or a

15  misdemeanor specified in s. 943.051(3)(b).

16         2.  Has not been adjudicated guilty of or adjudicated

17  delinquent for committing any of the acts stemming from the

18  arrest or alleged criminal activity to which the petition to

19  seal pertains.

20         3.  Has never secured a prior sealing or expunction of

21  a criminal history record under this section, former s.

22  893.14, former s. 901.33, former s. 943.058, or from any

23  jurisdiction outside the state.

24         4.  Is eligible for such a sealing to the best of his

25  or her knowledge or belief and does not have any other

26  petition to seal or any petition to expunge pending before any

27  court.

28

29  Subparagraphs 1., 2. and 3. do not apply and are not necessary

30  if a person has obtained a certificate pursuant to subsection

31  (3).

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1

 2  Any person who knowingly provides false information on such

 3  sworn statement to the court commits a felony of the third

 4  degree, punishable as provided in s. 775.082, s. 775.083, or

 5  s. 775.084.

 6         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

 7  petitioning the court to seal a criminal history record, a

 8  person seeking to seal a criminal history record shall apply

 9  to the department for a certificate of eligibility for

10  sealing.  The department shall, by rule adopted pursuant to

11  chapter 120, establish procedures pertaining to the

12  application for and issuance of certificates of eligibility

13  for sealing.  The department shall issue a certificate of

14  eligibility for sealing to a person who is the subject of a

15  criminal history record provided that such person:

16         (a)  Has submitted to the department a certified copy

17  of the disposition of the charge to which the petition to seal

18  pertains.

19         (b)  Remits a $75 processing fee to the department for

20  placement in the Department of Law Enforcement Operating Trust

21  Fund, unless such fee is waived by the executive director.

22         (c)  Has never previously been adjudicated guilty of a

23  criminal offense or comparable ordinance violation or

24  adjudicated delinquent for committing a felony or a

25  misdemeanor specified in s. 943.051(3)(b).

26         (d)  Has not been adjudicated guilty of or adjudicated

27  delinquent for committing any of the acts stemming from the

28  arrest or alleged criminal activity to which the petition to

29  seal pertains.

30         (e)  Has never secured a prior sealing or expunction of

31  a criminal history record under this section, former s.

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  893.14, former s. 901.33, or former s. 943.058.

 2         (f)  Is no longer under court supervision applicable to

 3  the disposition of the arrest or alleged criminal activity to

 4  which the petition to seal pertains.

 5         (3)  ALTERNATE CERTIFICATE FOR ELIGIBILITY FOR

 6  SEALING.  Notwithstanding subsection (2), the department

 7  shall, by rule adopted pursuant to chapter 120, establish

 8  procedures pertaining to the application for and issuance of

 9  certificates of eligibility for sealing for a person who meets

10  all of the following requirements:

11          (a)  Each of the offenses for which sealing of the

12  criminal history record is sought is a third degree felony or

13  a misdemeanor for which the person was arrested, convicted, or

14  had adjudication withheld.  This section does not apply to

15  records of the following offenses which shall not be sealed

16  pursuant to this subsection:

17         1.  Offenses for driving under the influence as defined

18  in s. 316.193.

19          2.  Offenses of domestic violence.

20         (b)  The person has never been convicted, or received a

21  withhold of adjudication, or been adjudicated delinquent for

22  any of the following offenses:

23         1.  All capital felonies, life felonies, felonies of

24  the first degree, or felonies of the second degree.

25         2.  Any violation of chapter 794, chapter 800, chapter

26  827, chapter 839, and s. 847.0145.

27         (c)  The person was under 20 years of age when the

28  person last committed an offense for which the person was

29  convicted or received an adjudication withheld.

30          (d)  The person is 25 years of age or older at the

31  time the expunction is sought.

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1          (e)  The person has not committed a criminal offense

 2  from the time the person became 20 years of age to the time

 3  the person became 25 years of age or until the person applied

 4  for sealing, whichever is a longer period of time.

 5          (f)  The person had not been confined in a detention

 6  facility, jail, prison, or other correctional facility as the

 7  result of a sentence for a criminal offense when the person

 8  was between 20 and 25 years of age, regardless of the age of

 9  the offender when the sentence was imposed.

10         (g)  The person has remitted a $75 processing fee to

11  the department for placement in the Department of Law

12  Enforcement Operating Trust Fund, unless such fee is waived by

13  the executive director.

14         (h)  The person is not under court supervision for

15  criminal activity and the person does not have a pending

16  criminal charge.

17         (4)(3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

18         (a)  In judicial proceedings under this section, a copy

19  of the completed petition to seal shall be served upon the

20  appropriate state attorney or the statewide prosecutor and

21  upon the arresting agency; however, it is not necessary to

22  make any agency other than the state a party.  The appropriate

23  state attorney or the statewide prosecutor and the arresting

24  agency may respond to the court regarding the completed

25  petition to seal.

26         (b)  If relief is granted by the court, the clerk of

27  the court shall certify copies of the order to the appropriate

28  state attorney or the statewide prosecutor and to the

29  arresting agency. The arresting agency is responsible for

30  forwarding the order to any other agency to which the

31  arresting agency disseminated the criminal history record

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  information to which the order pertains. The department shall

 2  forward the order to seal to the Federal Bureau of

 3  Investigation. The clerk of the court shall certify a copy of

 4  the order to any other agency which the records of the court

 5  reflect has received the criminal history record from the

 6  court.

 7         (c)  For an order to seal entered by a court prior to

 8  July 1, 1992, the department shall notify the appropriate

 9  state attorney or statewide prosecutor of any order to seal

10  which is contrary to law because the person who is the subject

11  of the record has previously been convicted of a crime or

12  comparable ordinance violation or has had a prior criminal

13  history record sealed or expunged.  Upon receipt of such

14  notice, the appropriate state attorney or statewide prosecutor

15  shall take action, within 60 days, to correct the record and

16  petition the court to void the order to seal.  The department

17  shall seal the record until such time as the order is voided

18  by the court.

19         (d)  On or after July 1, 1992, the department or any

20  other criminal justice agency is not required to act on an

21  order to seal entered by a court when such order does not

22  comply with the requirements of this section.  Upon receipt of

23  such an order, the department must notify the issuing court,

24  the appropriate state attorney or statewide prosecutor, the

25  petitioner or the petitioner's attorney, and the arresting

26  agency of the reason for noncompliance. The appropriate state

27  attorney or statewide prosecutor shall take action within 60

28  days to correct the record and petition the court to void the

29  order.  No cause of action, including contempt of court, shall

30  arise against any criminal justice agency for failure to

31  comply with an order to seal when the petitioner for such

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  order failed to obtain the certificate of eligibility as

 2  required by this section or when such order does not comply

 3  with the requirements of this section.

 4         (e)  An order sealing a criminal history record

 5  pursuant to this section does not require that such record be

 6  surrendered to the court, and such record shall continue to be

 7  maintained by the department and other criminal justice

 8  agencies.

 9         (5)(4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

10  criminal history record of a minor or an adult which is

11  ordered sealed by a court of competent jurisdiction pursuant

12  to this section is confidential and exempt from the provisions

13  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

14  and is available only to the person who is the subject of the

15  record, to the subject's attorney, to criminal justice

16  agencies for their respective criminal justice purposes, or to

17  those entities set forth in subparagraphs (a)1., 4., 5., and

18  6. for their respective licensing and employment purposes.

19         (a)  The subject of a criminal history record sealed

20  under this section or under other provisions of law, including

21  former s. 893.14, former s. 901.33, and former s. 943.058, may

22  lawfully deny or fail to acknowledge the arrests covered by

23  the sealed record, except when the subject of the record:

24         1.  Is a candidate for employment with a criminal

25  justice agency;

26         2.  Is a defendant in a criminal prosecution;

27         3.  Concurrently or subsequently petitions for relief

28  under this section or s. 943.0585;

29         4.  Is a candidate for admission to The Florida Bar;

30         5.  Is seeking to be employed or licensed by or to

31  contract with the Department of Health and Rehabilitative

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  Services or the Department of Juvenile Justice or to be

 2  employed or used by such contractor or licensee in a sensitive

 3  position having direct contact with children, the

 4  developmentally disabled, the aged, or the elderly as provided

 5  in s. 39.076, s. 110.1127(3), s. 393.063(14), s. 394.4572(1),

 6  s. 397.451, s. 402.302(8), s. 402.313(3), s. 409.175(2)(i), s.

 7  415.102(4), s. 415.103, or chapter 400; or

 8         6.  Is seeking to be employed or licensed by the Office

 9  of Teacher Education, Certification, Staff Development, and

10  Professional Practices of the Department of Education, any

11  district school board, or any local governmental entity which

12  licenses child care facilities.

13         (b)  Subject to the exceptions in paragraph (a), a

14  person who has been granted a sealing under this section,

15  former s. 893.14, former s. 901.33, or former s. 943.058 may

16  not be held under any provision of law of this state to commit

17  perjury or to be otherwise liable for giving a false statement

18  by reason of such person's failure to recite or acknowledge a

19  sealed criminal history record.

20         (c)  Information relating to the existence of a sealed

21  criminal record provided in accordance with the provisions of

22  paragraph (a) is confidential and exempt from the provisions

23  of s. 119.07(1) and s. 24(a), Art. I of the State

24  Constitution, except that the department shall disclose the

25  sealed criminal history record to the entities set forth in

26  subparagraphs (a)1., 4., 5., and 6. for their respective

27  licensing and employment purposes. It is unlawful for any

28  employee of an entity set forth in subparagraph (a)1.,

29  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

30  to disclose information relating to the existence of a sealed

31  criminal history record of a person seeking employment or

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1  licensure with such entity or contractor, except to the person

 2  to whom the criminal history record relates or to persons

 3  having direct responsibility for employment or licensure

 4  decisions.  Any person who violates the provisions of this

 5  paragraph commits a misdemeanor of the first degree,

 6  punishable as provided in s. 775.082 or s. 775.083.

 7         Section 3.  This act shall take effect July 1 of the

 8  year in which enacted.

 9

10

11  ================ T I T L E   A M E N D M E N T ===============

12  And the title is amended as follows:

13         On page ,

14  remove from the title of the bill:

15

16  and insert in lieu thereof:

17         amending s. 943.059, F.S.; providing exception

18         to limitation that sealing may only be related

19         to one arrest or arrests related to original

20         arrest; providing alternative procedure for

21         eligibility for sealing; providing for adoption

22         of rules by the Department of Law Enforcement;

23         requiring that sealing is limited to third

24         degree felonies and misdemeanors; requires that

25         offenses to be sealed are not a violation of s.

26         316.193, or domestic violence; authorizes

27         sealing only if person never convicted or

28         received adjudication withheld for a second

29         degree felony or higher degree felony, and

30         never committed any violation of chapters 794,

31         800, 827, 839, and s. 847.0145; provides

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                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3653

    Amendment No. 01 (for drafter's use only)





 1         additional requirements for sealing including a

 2         $75.00 processing fee; providing an effective

 3         date.

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