House Bill 1727
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Florida House of Representatives - 1999 HB 1727
By the Committee on Law Enforcement & Crime Prevention and
Representative Futch
1 A bill to be entitled
2 An act relating to criminal justice
3 information; repealing s. 943.051(5), F.S.,
4 relating to the authority of the Department of
5 Law Enforcement with respect to criminal
6 justice information management; creating s.
7 943.0531, F.S.; providing the authority of the
8 department regarding the information management
9 needs of the criminal justice community;
10 authorizing establishment of an intra-agency
11 communication network for state criminal
12 justice agencies; authorizing limited presence
13 on the network for certain other entities and
14 specifying the authority of the department with
15 respect to contracts and pilot projects with,
16 and collection of fees or other consideration
17 from, such entities; authorizing the department
18 to enter into certain agreements; providing for
19 rules; creating s. 943.0545, F.S.; ratifying
20 the National Crime Prevention and Privacy
21 Compact; specifying that the department shall
22 be the criminal history record repository under
23 the compact and the executive director of the
24 department or his or her designee shall
25 administer the compact; providing for rules;
26 creating s. 943.0565, F.S.; directing the
27 department to provide a mechanism whereby
28 employees or volunteers or applicants therefor
29 of qualified entities that provide care to
30 children, the elderly, or persons with
31 disabilities may be screened using state and
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1 national criminal history information, in
2 accordance with the National Child Protection
3 Act of 1993; providing definitions; requiring
4 qualified entities to register with the
5 department and authorizing audits of such
6 entities; providing requirements with respect
7 to requests for screening; providing for fees;
8 providing responsibilities of employees and
9 volunteers subject to screening; providing
10 conditions for provision of criminal history
11 information to qualified entities and providing
12 responsibilities with respect thereto;
13 providing duties of qualified entities;
14 authorizing the department to establish a
15 database of qualified entities; specifying
16 liability with respect to obtaining or
17 providing such information; providing for
18 rules; authorizing the department to establish
19 positions to implement these provisions;
20 reenacting and amending ss. 943.0585 and
21 943.059, F.S., which provide procedures and
22 requirements for court-ordered expunction and
23 sealing of criminal history records, to
24 incorporate prior amendments to statutes
25 referenced in said sections; specifying that
26 statutory references in said sections are
27 general references; clarifying the meaning of
28 "previous" in provisions which require
29 statements regarding previous offenses;
30 correcting references; providing an effective
31 date.
2
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1 Be It Enacted by the Legislature of the State of Florida:
2
3 Section 1. Subsection (5) of section 943.051, Florida
4 Statutes, is repealed.
5 Section 2. Section 943.0531, Florida Statutes, is
6 created to read:
7 943.0531 Criminal justice information network and
8 information management.--
9 (1) The department may develop, implement, maintain,
10 and manage innovative, progressive, and effective methods of
11 serving the information management needs of the criminal
12 justice community, and may take such steps as are necessary to
13 promote efficient and cost-effective utilization of such
14 information.
15 (2) The department is authorized to develop,
16 implement, maintain, manage, and operate an intra-agency
17 information and data sharing communication network for use by
18 Florida criminal justice agencies, to be named the Criminal
19 Justice Network. Access by Florida criminal justice agencies
20 to the Criminal Justice Network shall be determined and
21 regulated by the department, after consultation with the
22 Criminal and Juvenile Justice Information Systems Council as
23 established under s. 943.06.
24 (3) In addition to access to the Criminal Justice
25 Network provided to Florida criminal justice agencies, the
26 department may authorize entities that offer or provide a
27 product, program, or service determined by the department to
28 be of substantial value to the criminal justice information
29 needs of the criminal justice agencies participating in the
30 Criminal Justice Network special limited presence on the
31 network under terms, conditions, and limitations established
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1 by the department after consultation with the Criminal and
2 Juvenile Justice Information Systems Council.
3 (4) In meeting its duties under this section, the
4 department may enter into contracts with, conduct pilot
5 studies and projects with, and assess and collect fees,
6 commissions, royalties, or other charges from, entities
7 approved for special presence on the Criminal Justice Network
8 in consideration for such presence. The department may enter
9 into agreements by which products, programs, or services of
10 value to the department or the information needs of the
11 criminal justice community are provided in lieu of all or a
12 part of a fee, commission, royalty, or charge that might be
13 otherwise assessed by the department upon an entity granted
14 special limited presence on the network.
15 (5) The department is authorized to enter into an
16 agreement with any entity to facilitate the department's
17 responsibilities for receiving, maintaining, managing,
18 processing, allowing access to, and disseminating criminal
19 justice information, intelligence, or data, or criminal
20 history records and information, or to otherwise accomplish
21 the information and records-related duties and
22 responsibilities defined in this section and chapter. The
23 department may enter into agreements by which products,
24 programs, or services of value to the department or the
25 information needs of the criminal justice community are
26 provided in lieu of all or a part of a fee, commission,
27 royalty, or charge that might be otherwise assessed by the
28 department upon an entity entering into an agreement with the
29 department. Any entity under contract with the department to
30 perform all or part of the department's information function
31 or duties shall, as specified in the contract, be performing
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1 such functions or duties as a criminal justice agency for
2 purposes of handling, collecting, managing, or disseminating
3 criminal justice information, intelligence, data, histories,
4 and other records. Disclosure of such information to an
5 entity under such a contract does not waive any
6 confidentiality or exemption from disclosure under s. 119.07
7 or any other applicable law.
8 (6) The department has authority to adopt such rules
9 as are necessary to implement and perform the powers and
10 duties defined in this section. Except as specified in this
11 section, nothing in this section shall alter or limit the
12 powers and duties of the department as otherwise established
13 by this chapter.
14 Section 3. Section 943.0545, Florida Statutes, is
15 created to read:
16 943.0545 National Crime Prevention and Privacy
17 Compact; ratification and implementation.--
18 (1) In order to facilitate authorized interstate
19 criminal history exchange for noncriminal justice purposes
20 such as background checks for governmental licensing and the
21 screening of employees and volunteers under the National Child
22 Protection Act of 1993, as amended, and to implement the
23 National Crime Prevention and Privacy Compact, 42 U.S.C. s.
24 14616, the Legislature hereby approves and ratifies the
25 National Crime Prevention and Privacy Compact. The compact
26 officer designated in this section is authorized to execute
27 the compact on behalf of the state.
28 (2) The department shall be the criminal history
29 record repository for purposes of the compact and is
30 authorized and directed to do all things necessary or
31 incidental to carrying out the compact in every particular.
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1 (3) The executive director of the department or the
2 director's designee shall be the state's compact officer to
3 administer the compact within Florida. The department has
4 authority to adopt rules to implement procedures for the
5 cooperative state-federal exchange of criminal history records
6 for noncriminal justice uses.
7 (4) The state's ratification of the compact shall
8 remain in effect until such time as legislation specifically
9 renouncing the compact is enacted.
10 (5) Nothing in the compact or this section shall
11 affect or abridge the obligations and responsibilities of the
12 department under other provisions of this chapter, including
13 s. 943.053, or alter or amend the manner in which access,
14 direct or otherwise, to criminal history record information is
15 afforded the public under state law.
16 Section 4. Section 943.0565, Florida Statutes, is
17 created to read:
18 943.0565 Access to criminal history information
19 provided by the department to qualified entities providing
20 care or care placement services.--
21 (1) The United States Congress, in passing the
22 National Child Protection Act of 1993, as amended, has
23 established a national policy promoting a broader exchange of
24 criminal history information for purposes of assisting
25 entities that provide care, treatment, education, training,
26 instruction, supervision, or recreation to children, the
27 elderly, or individuals with disabilities in screening
28 volunteers and employees associated with those entities and in
29 helping to prevent the abuse of those served by the entities.
30 Through the National Child Protection Act, Congress has
31
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1 defined a process by which states may have access to national
2 criminal history information for the stated purposes.
3 (2) The Legislature believes that the safety of our
4 children and disabled and elderly persons is a priority, and
5 establishes this section to conform with the processes and
6 requirements established by Congress as a requisite for
7 allowing national criminal history information to be provided
8 to qualified entities. The department shall provide,
9 consistent with federal law, a mechanism whereby employees or
10 volunteers working with qualified entities may be screened
11 using state and national criminal history information.
12 (3) As used in this section, "qualified entity" means
13 a business or organization, whether public, private, for
14 profit, not-for-profit, or voluntary, that provides care or
15 care placement services, including a business or organization
16 that licenses or certifies others to provide care or care
17 placement services. "Care" means the provision of care,
18 treatment, education, training, instruction, supervision, or
19 recreation to children, the elderly, or individuals with
20 disabilities.
21 (4)(a) A qualified entity must register with the
22 department prior to submitting requests for screening under
23 this section. All such requests are voluntary and must
24 conform to the requirements established in the National Child
25 Protection Act of 1993, as amended. As a part of the
26 registration, the qualified entity shall agree to comply with
27 the provisions of federal and state law and shall so indicate
28 by signing an agreement approved by the department. The
29 department may arrange periodic audits of qualified entities
30 necessary to ensure compliance with federal laws and
31 regulations and this section.
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1 (b) A qualified entity shall submit to the department
2 the request for screening of an employee or volunteer or
3 person applying to be an employee or volunteer on a completed
4 fingerprint card, with a signed waiver allowing the release of
5 state and national criminal history record information to the
6 qualified entity submitting the request.
7 (c) Each such request shall be accompanied by the
8 payment of the prescribed fee. The fee shall be the same as
9 that charged governmental agencies not qualified as criminal
10 justice agencies for state criminal history records under s.
11 943.053, plus the amount required by the Federal Bureau of
12 Investigation for the national criminal history check in
13 compliance with the National Child Protection Act of 1993, as
14 amended.
15 (d) Any employee or volunteer who is subject to a
16 request for screening shall indicate to the qualified entity
17 submitting the request the name and address of all qualified
18 entities that have submitted previous requests for screening
19 regarding the employee or volunteer.
20 (5) The department shall provide directly to the
21 qualified entity the state criminal history records which are
22 not exempt from disclosure under chapter 119 or otherwise
23 confidential under law. A person who is the subject of a state
24 criminal history record may challenge the record only as
25 provided in s. 943.056.
26 (6) The national criminal history data is available to
27 qualified entities to use only for screening employees and
28 volunteers or persons applying to be an employee or volunteer
29 with a qualified entity. The department shall provide this
30 national criminal history record information directly to the
31
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1 qualified entity as authorized by the written waiver required
2 for submission of a request to the department.
3 (7) The determination whether the criminal history
4 record shows that the employee or volunteer is convicted of or
5 is under pending indictment for any crime that bears upon the
6 employee or volunteer's fitness to have responsibility for the
7 safety and well-being of children, the elderly, or disabled
8 persons shall solely be made by the qualified entity. Nothing
9 in this section shall be construed as requiring the department
10 to make such a determination on behalf of any qualified
11 entity.
12 (8) The qualified entity must notify the person of his
13 or her right to obtain a copy of any background check report,
14 including the criminal history records, if any, contained in
15 the report, and the person's right to challenge the accuracy
16 and completeness of any information contained in any such
17 report and to obtain a determination as to the validity of
18 such challenge before a final determination regarding the
19 person is made by the qualified entity reviewing the criminal
20 history information. Qualified entities which are required by
21 law to apply screening criteria, including the right to
22 contest or request an exemption from disqualification, shall
23 continue to apply such criteria to the state and national
24 criminal history record information received from the
25 department.
26 (9) The department may establish a database of
27 registered qualified entities and make this data available
28 free of charge to all registered qualified entities. The
29 database shall include, at a minimum, the name, address, and
30 phone number of each qualified entity.
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1 (10) A qualified entity shall not be liable in an
2 action for damages solely for failure to obtain the
3 information authorized under this section on an employee or
4 volunteer, nor shall the state or any political subdivision
5 thereof or any agency, officer, or employee thereof be liable
6 in an action for damages for providing the information
7 requested under this section.
8 (11) The department has authority to adopt rules to
9 implement this section.
10 Section 5. The Department of Law Enforcement is
11 authorized to establish necessary positions to implement s.
12 943.0565, Florida Statutes. The positions shall be
13 established in accordance with the demands for criminal
14 history information at the rate of one position for each 5,000
15 requests received by the department, with an initial
16 authorization of 14 positions.
17 Section 6. For the purpose of incorporating all
18 amendments made prior to the effective date of this act to the
19 chapters, sections, or subdivisions of Florida Statutes
20 referenced in section 943.0585, Florida Statutes, 1998
21 Supplement, which amendments have not been incorporated by
22 reference thereto, section 943.0585, Florida Statutes, 1998
23 Supplement, is reenacted, and paragraph (b) of subsection (1),
24 paragraph (d) of subsection (2), and paragraph (a) of
25 subsection (4) of said section are amended, and subsection (5)
26 is added to said section, to read:
27 943.0585 Court-ordered expunction of criminal history
28 records.--The courts of this state have jurisdiction over
29 their own procedures, including the maintenance, expunction,
30 and correction of judicial records containing criminal history
31 information to the extent such procedures are not inconsistent
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1 with the conditions, responsibilities, and duties established
2 by this section. Any court of competent jurisdiction may
3 order a criminal justice agency to expunge the criminal
4 history record of a minor or an adult who complies with the
5 requirements of this section. The court shall not order a
6 criminal justice agency to expunge a criminal history record
7 until the person seeking to expunge a criminal history record
8 has applied for and received a certificate of eligibility for
9 expunction pursuant to subsection (2). A criminal history
10 record that relates to a violation of chapter 794, s. 800.04,
11 s. 817.034, s. 827.071, chapter 839, s. 893.135, or a
12 violation enumerated in s. 907.041 may not be expunged,
13 without regard to whether adjudication was withheld, if the
14 defendant was found guilty of or pled guilty or nolo
15 contendere to the offense, or if the defendant, as a minor,
16 was found to have committed, or pled guilty or nolo contendere
17 to committing, the offense as a delinquent act. The court may
18 only order expunction of a criminal history record pertaining
19 to one arrest or one incident of alleged criminal activity,
20 except as provided in this section. The court may, at its sole
21 discretion, order the expunction of a criminal history record
22 pertaining to more than one arrest if the additional arrests
23 directly relate to the original arrest. If the court intends
24 to order the expunction of records pertaining to such
25 additional arrests, such intent must be specified in the
26 order. A criminal justice agency may not expunge any record
27 pertaining to such additional arrests if the order to expunge
28 does not articulate the intention of the court to expunge a
29 record pertaining to more than one arrest. This section does
30 not prevent the court from ordering the expunction of only a
31 portion of a criminal history record pertaining to one arrest
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1 or one incident of alleged criminal activity. Notwithstanding
2 any law to the contrary, a criminal justice agency may comply
3 with laws, court orders, and official requests of other
4 jurisdictions relating to expunction, correction, or
5 confidential handling of criminal history records or
6 information derived therefrom. This section does not confer
7 any right to the expunction of any criminal history record,
8 and any request for expunction of a criminal history record
9 may be denied at the sole discretion of the court.
10 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY
11 RECORD.--Each petition to a court to expunge a criminal
12 history record is complete only when accompanied by:
13 (a) A certificate of eligibility for expunction issued
14 by the department pursuant to subsection (2).
15 (b) The petitioner's sworn statement attesting that
16 the petitioner:
17 1. Has never previous to the date on which the
18 petition is filed previously been adjudicated guilty of a
19 criminal offense or comparable ordinance violation or
20 adjudicated delinquent for committing a felony or a
21 misdemeanor specified in s. 943.051(3)(b).
22 2. Has not been adjudicated guilty of, or adjudicated
23 delinquent for committing, any of the acts stemming from the
24 arrest or alleged criminal activity to which the petition
25 pertains.
26 3. Has never secured a prior sealing or expunction of
27 a criminal history record under this section, former s.
28 893.14, former s. 901.33, or former s. 943.058, or from any
29 jurisdiction outside the state.
30 4. Is eligible for such an expunction to the best of
31 his or her knowledge or belief and does not have any other
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1 petition to expunge or any petition to seal pending before any
2 court.
3
4 Any person who knowingly provides false information on such
5 sworn statement to the court commits a felony of the third
6 degree, punishable as provided in s. 775.082, s. 775.083, or
7 s. 775.084.
8 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior
9 to petitioning the court to expunge a criminal history record,
10 a person seeking to expunge a criminal history record shall
11 apply to the department for a certificate of eligibility for
12 expunction. The department shall, by rule adopted pursuant to
13 chapter 120, establish procedures pertaining to the
14 application for and issuance of certificates of eligibility
15 for expunction. The department shall issue a certificate of
16 eligibility for expunction to a person who is the subject of a
17 criminal history record if that person:
18 (a) Has obtained, and submitted to the department, a
19 written, certified statement from the appropriate state
20 attorney or statewide prosecutor which indicates:
21 1. That an indictment, information, or other charging
22 document was not filed or issued in the case.
23 2. That an indictment, information, or other charging
24 document, if filed or issued in the case, was dismissed or
25 nolle prosequi by the state attorney or statewide prosecutor,
26 or was dismissed by a court of competent jurisdiction.
27 3. That the criminal history record does not relate to
28 a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,
29 chapter 839, s. 893.135, or a violation enumerated in s.
30 907.041, where the defendant was found guilty of, or pled
31 guilty or nolo contendere to any such offense, or that the
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1 defendant, as a minor, was found to have committed, or pled
2 guilty or nolo contendere to committing, such an offense as a
3 delinquent act, without regard to whether adjudication was
4 withheld.
5 (b) Remits a $75 processing fee to the department for
6 placement in the Department of Law Enforcement Operating Trust
7 Fund, unless such fee is waived by the executive director.
8 (c) Has submitted to the department a certified copy
9 of the disposition of the charge to which the petition to
10 expunge pertains.
11 (d) Has never previous to the date on which the
12 application for a certificate of eligibility is filed
13 previously been adjudicated guilty of a criminal offense or
14 comparable ordinance violation or adjudicated delinquent for
15 committing a felony or a misdemeanor specified in s.
16 943.051(3)(b).
17 (e) Has not been adjudicated guilty of, or adjudicated
18 delinquent for committing, any of the acts stemming from the
19 arrest or alleged criminal activity to which the petition to
20 expunge pertains.
21 (f) Has never secured a prior sealing or expunction of
22 a criminal history record under this section, former s.
23 893.14, former s. 901.33, or former s. 943.058.
24 (g) Is no longer under court supervision applicable to
25 the disposition of the arrest or alleged criminal activity to
26 which the petition to expunge pertains.
27 (h) Is not required to wait a minimum of 10 years
28 prior to being eligible for an expunction of such records
29 because all charges related to the arrest or criminal activity
30 to which the petition to expunge pertains were dismissed prior
31 to trial, adjudication, or the withholding of adjudication.
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1 Otherwise, such criminal history record must be sealed under
2 this section, former s. 893.14, former s. 901.33, or former s.
3 943.058 for at least 10 years before such record is eligible
4 for expunction.
5 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
6 (a) In judicial proceedings under this section, a copy
7 of the completed petition to expunge shall be served upon the
8 appropriate state attorney or the statewide prosecutor and
9 upon the arresting agency; however, it is not necessary to
10 make any agency other than the state a party. The appropriate
11 state attorney or the statewide prosecutor and the arresting
12 agency may respond to the court regarding the completed
13 petition to expunge.
14 (b) If relief is granted by the court, the clerk of
15 the court shall certify copies of the order to the appropriate
16 state attorney or the statewide prosecutor and the arresting
17 agency. The arresting agency is responsible for forwarding the
18 order to any other agency to which the arresting agency
19 disseminated the criminal history record information to which
20 the order pertains. The department shall forward the order to
21 expunge to the Federal Bureau of Investigation. The clerk of
22 the court shall certify a copy of the order to any other
23 agency which the records of the court reflect has received the
24 criminal history record from the court.
25 (c) For an order to expunge entered by a court prior
26 to July 1, 1992, the department shall notify the appropriate
27 state attorney or statewide prosecutor of an order to expunge
28 which is contrary to law because the person who is the subject
29 of the record has previously been convicted of a crime or
30 comparable ordinance violation or has had a prior criminal
31 history record sealed or expunged. Upon receipt of such
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1 notice, the appropriate state attorney or statewide prosecutor
2 shall take action, within 60 days, to correct the record and
3 petition the court to void the order to expunge. The
4 department shall seal the record until such time as the order
5 is voided by the court.
6 (d) On or after July 1, 1992, the department or any
7 other criminal justice agency is not required to act on an
8 order to expunge entered by a court when such order does not
9 comply with the requirements of this section. Upon receipt of
10 such an order, the department must notify the issuing court,
11 the appropriate state attorney or statewide prosecutor, the
12 petitioner or the petitioner's attorney, and the arresting
13 agency of the reason for noncompliance. The appropriate state
14 attorney or statewide prosecutor shall take action within 60
15 days to correct the record and petition the court to void the
16 order. No cause of action, including contempt of court, shall
17 arise against any criminal justice agency for failure to
18 comply with an order to expunge when the petitioner for such
19 order failed to obtain the certificate of eligibility as
20 required by this section or such order does not otherwise
21 comply with the requirements of this section.
22 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
23 criminal history record of a minor or an adult which is
24 ordered expunged by a court of competent jurisdiction pursuant
25 to this section must be physically destroyed or obliterated by
26 any criminal justice agency having custody of such record;
27 except that any criminal history record in the custody of the
28 department must be retained in all cases. A criminal history
29 record ordered expunged that is retained by the department is
30 confidential and exempt from the provisions of s. 119.07(1)
31 and s. 24(a), Art. I of the State Constitution and not
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1 available to any person or entity except upon order of a court
2 of competent jurisdiction. A criminal justice agency may
3 retain a notation indicating compliance with an order to
4 expunge.
5 (a) The person who is the subject of a criminal
6 history record that is expunged under this section or under
7 other provisions of law, including former s. 893.14, former s.
8 901.33, and former s. 943.058, may lawfully deny or fail to
9 acknowledge the arrests covered by the expunged record, except
10 when the subject of the record:
11 1. Is a candidate for employment with a criminal
12 justice agency;
13 2. Is a defendant in a criminal prosecution;
14 3. Concurrently or subsequently petitions for relief
15 under this section or s. 943.059;
16 4. Is a candidate for admission to The Florida Bar;
17 5. Is seeking to be employed or licensed by or to
18 contract with the Department of Children and Family Services
19 or the Department of Juvenile Justice or to be employed or
20 used by such contractor or licensee in a sensitive position
21 having direct contact with children, the developmentally
22 disabled, the aged, or the elderly as provided in s.
23 110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.
24 402.302(3)(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
25 s. 415.1075(4), s. 985.407, or chapter 400; or
26 6. Is seeking to be employed or licensed by the Office
27 of Teacher Education, Certification, Staff Development, and
28 Professional Practices of the Department of Education, any
29 district school board, or any local governmental entity that
30 licenses child care facilities.
31
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1 (b) Subject to the exceptions in paragraph (a), a
2 person who has been granted an expunction under this section,
3 former s. 893.14, former s. 901.33, or former s. 943.058 may
4 not be held under any provision of law of this state to commit
5 perjury or to be otherwise liable for giving a false statement
6 by reason of such person's failure to recite or acknowledge an
7 expunged criminal history record.
8 (c) Information relating to the existence of an
9 expunged criminal history record which is provided in
10 accordance with paragraph (a) is confidential and exempt from
11 the provisions of s. 119.07(1) and s. 24(a), Art. I of the
12 State Constitution, except that the department shall disclose
13 the existence of a criminal history record ordered expunged to
14 the entities set forth in subparagraphs (a)1., 4., 5., and 6.
15 for their respective licensing and employment purposes, and to
16 criminal justice agencies for their respective criminal
17 justice purposes. It is unlawful for any employee of an
18 entity set forth in subparagraph (a)1., subparagraph (a)4.,
19 subparagraph (a)5., or subparagraph (a)6. to disclose
20 information relating to the existence of an expunged criminal
21 history record of a person seeking employment or licensure
22 with such entity or contractor, except to the person to whom
23 the criminal history record relates or to persons having
24 direct responsibility for employment or licensure decisions.
25 Any person who violates this paragraph commits a misdemeanor
26 of the first degree, punishable as provided in s. 775.082 or
27 s. 775.083.
28 (5) STATUTORY REFERENCES.--Any reference to any other
29 chapter, section, or subdivision of the Florida Statutes in
30 this section constitutes a general reference under the
31 doctrine of incorporation by reference.
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1 Section 7. For the purpose of incorporating all
2 amendments made prior to the effective date of this act to the
3 chapters, sections, or subdivisions of Florida Statutes
4 referenced in section 943.059, Florida Statutes, 1998
5 Supplement, which amendments have not been incorporated by
6 reference thereto, section 943.059, Florida Statutes, 1998
7 Supplement, is reenacted, and paragraph (b) of subsection (1),
8 paragraph (c) of subsection (2), and paragraph (a) of
9 subsection (4) of said section are amended, and subsection (5)
10 is added to said section, to read:
11 943.059 Court-ordered sealing of criminal history
12 records.--The courts of this state shall continue to have
13 jurisdiction over their own procedures, including the
14 maintenance, sealing, and correction of judicial records
15 containing criminal history information to the extent such
16 procedures are not inconsistent with the conditions,
17 responsibilities, and duties established by this section. Any
18 court of competent jurisdiction may order a criminal justice
19 agency to seal the criminal history record of a minor or an
20 adult who complies with the requirements of this section. The
21 court shall not order a criminal justice agency to seal a
22 criminal history record until the person seeking to seal a
23 criminal history record has applied for and received a
24 certificate of eligibility for sealing pursuant to subsection
25 (2). A criminal history record that relates to a violation of
26 chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,
27 s. 893.135, or a violation enumerated in s. 907.041 may not be
28 sealed, without regard to whether adjudication was withheld,
29 if the defendant was found guilty of or pled guilty or nolo
30 contendere to the offense, or if the defendant, as a minor,
31 was found to have committed or pled guilty or nolo contendere
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1 to committing the offense as a delinquent act. The court may
2 only order sealing of a criminal history record pertaining to
3 one arrest or one incident of alleged criminal activity,
4 except as provided in this section. The court may, at its sole
5 discretion, order the sealing of a criminal history record
6 pertaining to more than one arrest if the additional arrests
7 directly relate to the original arrest. If the court intends
8 to order the sealing of records pertaining to such additional
9 arrests, such intent must be specified in the order. A
10 criminal justice agency may not seal any record pertaining to
11 such additional arrests if the order to seal does not
12 articulate the intention of the court to seal records
13 pertaining to more than one arrest. This section does not
14 prevent the court from ordering the sealing of only a portion
15 of a criminal history record pertaining to one arrest or one
16 incident of alleged criminal activity. Notwithstanding any law
17 to the contrary, a criminal justice agency may comply with
18 laws, court orders, and official requests of other
19 jurisdictions relating to sealing, correction, or confidential
20 handling of criminal history records or information derived
21 therefrom. This section does not confer any right to the
22 sealing of any criminal history record, and any request for
23 sealing a criminal history record may be denied at the sole
24 discretion of the court.
25 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
26 petition to a court to seal a criminal history record is
27 complete only when accompanied by:
28 (a) A certificate of eligibility for sealing issued by
29 the department pursuant to subsection (2).
30 (b) The petitioner's sworn statement attesting that
31 the petitioner:
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1 1. Has never previous to the date on which the
2 petition is filed previously been adjudicated guilty of a
3 criminal offense or comparable ordinance violation or
4 adjudicated delinquent for committing a felony or a
5 misdemeanor specified in s. 943.051(3)(b).
6 2. Has not been adjudicated guilty of or adjudicated
7 delinquent for committing any of the acts stemming from the
8 arrest or alleged criminal activity to which the petition to
9 seal pertains.
10 3. Has never secured a prior sealing or expunction of
11 a criminal history record under this section, former s.
12 893.14, former s. 901.33, former s. 943.058, or from any
13 jurisdiction outside the state.
14 4. Is eligible for such a sealing to the best of his
15 or her knowledge or belief and does not have any other
16 petition to seal or any petition to expunge pending before any
17 court.
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19 Any person who knowingly provides false information on such
20 sworn statement to the court commits a felony of the third
21 degree, punishable as provided in s. 775.082, s. 775.083, or
22 s. 775.084.
23 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
24 petitioning the court to seal a criminal history record, a
25 person seeking to seal a criminal history record shall apply
26 to the department for a certificate of eligibility for
27 sealing. The department shall, by rule adopted pursuant to
28 chapter 120, establish procedures pertaining to the
29 application for and issuance of certificates of eligibility
30 for sealing. The department shall issue a certificate of
31
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1 eligibility for sealing to a person who is the subject of a
2 criminal history record provided that such person:
3 (a) Has submitted to the department a certified copy
4 of the disposition of the charge to which the petition to seal
5 pertains.
6 (b) Remits a $75 processing fee to the department for
7 placement in the Department of Law Enforcement Operating Trust
8 Fund, unless such fee is waived by the executive director.
9 (c) Has never previous to the date on which the
10 application for a certificate of eligibility is filed
11 previously been adjudicated guilty of a criminal offense or
12 comparable ordinance violation or adjudicated delinquent for
13 committing a felony or a misdemeanor specified in s.
14 943.051(3)(b).
15 (d) 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 (e) 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, or former s. 943.058.
22 (f) Is no longer under court supervision applicable to
23 the disposition of the arrest or alleged criminal activity to
24 which the petition to seal pertains.
25 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
26 (a) In judicial proceedings under this section, a copy
27 of the completed petition to seal shall be served upon the
28 appropriate state attorney or the statewide prosecutor and
29 upon the arresting agency; however, it is not necessary to
30 make any agency other than the state a party. The appropriate
31 state attorney or the statewide prosecutor and the arresting
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1 agency may respond to the court regarding the completed
2 petition to seal.
3 (b) If relief is granted by the court, the clerk of
4 the court shall certify copies of the order to the appropriate
5 state attorney or the statewide prosecutor and to the
6 arresting agency. The arresting agency is responsible for
7 forwarding the order to any other agency to which the
8 arresting agency disseminated the criminal history record
9 information to which the order pertains. The department shall
10 forward the order to seal to the Federal Bureau of
11 Investigation. The clerk of the court shall certify a copy of
12 the order to any other agency which the records of the court
13 reflect has received the criminal history record from the
14 court.
15 (c) For an order to seal entered by a court prior to
16 July 1, 1992, the department shall notify the appropriate
17 state attorney or statewide prosecutor of any order to seal
18 which is contrary to law because the person who is the subject
19 of the record has previously been convicted of a crime or
20 comparable ordinance violation or has had a prior criminal
21 history record sealed or expunged. Upon receipt of such
22 notice, the appropriate state attorney or statewide prosecutor
23 shall take action, within 60 days, to correct the record and
24 petition the court to void the order to seal. The department
25 shall seal the record until such time as the order is voided
26 by the court.
27 (d) On or after July 1, 1992, the department or any
28 other criminal justice agency is not required to act on an
29 order to seal entered by a court when such order does not
30 comply with the requirements of this section. Upon receipt of
31 such an order, the department must notify the issuing court,
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1 the appropriate state attorney or statewide prosecutor, the
2 petitioner or the petitioner's attorney, and the arresting
3 agency of the reason for noncompliance. The appropriate state
4 attorney or statewide prosecutor shall take action within 60
5 days to correct the record and petition the court to void the
6 order. No cause of action, including contempt of court, shall
7 arise against any criminal justice agency for failure to
8 comply with an order to seal when the petitioner for such
9 order failed to obtain the certificate of eligibility as
10 required by this section or when such order does not comply
11 with the requirements of this section.
12 (e) An order sealing a criminal history record
13 pursuant to this section does not require that such record be
14 surrendered to the court, and such record shall continue to be
15 maintained by the department and other criminal justice
16 agencies.
17 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
18 criminal history record of a minor or an adult which is
19 ordered sealed by a court of competent jurisdiction pursuant
20 to this section is confidential and exempt from the provisions
21 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
22 and is available only to the person who is the subject of the
23 record, to the subject's attorney, to criminal justice
24 agencies for their respective criminal justice purposes, or to
25 those entities set forth in subparagraphs (a)1., 4., 5., and
26 6. for their respective licensing and employment purposes.
27 (a) The subject of a criminal history record sealed
28 under this section or under other provisions of law, including
29 former s. 893.14, former s. 901.33, and former s. 943.058, may
30 lawfully deny or fail to acknowledge the arrests covered by
31 the sealed record, except when the subject of the record:
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1 1. Is a candidate for employment with a criminal
2 justice agency;
3 2. Is a defendant in a criminal prosecution;
4 3. Concurrently or subsequently petitions for relief
5 under this section or s. 943.0585;
6 4. Is a candidate for admission to The Florida Bar;
7 5. Is seeking to be employed or licensed by or to
8 contract with the Department of Children and Family Services
9 or the Department of Juvenile Justice or to be employed or
10 used by such contractor or licensee in a sensitive position
11 having direct contact with children, the developmentally
12 disabled, the aged, or the elderly as provided in s.
13 110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.
14 402.302(3)(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
15 s. 415.103, s. 985.407, or chapter 400; or
16 6. Is seeking to be employed or licensed by the Office
17 of Teacher Education, Certification, Staff Development, and
18 Professional Practices of the Department of Education, any
19 district school board, or any local governmental entity which
20 licenses child care facilities.
21 (b) Subject to the exceptions in paragraph (a), a
22 person who has been granted a sealing under this section,
23 former s. 893.14, former s. 901.33, or former s. 943.058 may
24 not be held under any provision of law of this state to commit
25 perjury or to be otherwise liable for giving a false statement
26 by reason of such person's failure to recite or acknowledge a
27 sealed criminal history record.
28 (c) Information relating to the existence of a sealed
29 criminal record provided in accordance with the provisions of
30 paragraph (a) is confidential and exempt from the provisions
31 of s. 119.07(1) and s. 24(a), Art. I of the State
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1 Constitution, except that the department shall disclose the
2 sealed criminal history record to the entities set forth in
3 subparagraphs (a)1., 4., 5., and 6. for their respective
4 licensing and employment purposes. It is unlawful for any
5 employee of an entity set forth in subparagraph (a)1.,
6 subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
7 to disclose information relating to the existence of a sealed
8 criminal history record of a person seeking employment or
9 licensure with such entity or contractor, except to the person
10 to whom the criminal history record relates or to persons
11 having direct responsibility for employment or licensure
12 decisions. Any person who violates the provisions of this
13 paragraph commits a misdemeanor of the first degree,
14 punishable as provided in s. 775.082 or s. 775.083.
15 (5) STATUTORY REFERENCES.--Any reference to any other
16 chapter, section, or subdivision of the Florida Statutes in
17 this section constitutes a general reference under the
18 doctrine of incorporation by reference.
19 Section 8. This act shall take effect October 1, 1999.
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2 HOUSE SUMMARY
3
Provides the authority of the Department of Law
4 Enforcement regarding the information management needs of
the criminal justice community. Authorizes establishment
5 of an intra-agency communication network for state
criminal justice agencies and authorizes limited presence
6 on the network for certain other entities. Specifies the
authority of the department with respect to contracts and
7 pilot projects with, and collection of fees or other
consideration from, such entities.
8
9 Ratifies the National Crime Prevention and Privacy
Compact and specifies that the department shall be the
10 criminal history record repository under the compact and
the executive director of the department or his or her
11 designee shall administer the compact.
12
Directs the department to provide a mechanism whereby
13 employees or volunteers, or applicants therefor, of
qualified entities that provide care to children, the
14 elderly, or persons with disabilities may be screened
using state and national criminal history information, in
15 accordance with the National Child Protection Act of
1993. Requires such entities to register with the
16 department. Provides requirements relating to screening
requests and provides the duties and responsibilities of
17 such entities, employees and volunteers, and the
department.
18
19 Reenacts provisions which provide procedures and
requirements for court-ordered expunction and sealing of
20 criminal history records, to incorporate prior amendments
to statutes referenced therein. Specifies that statutory
21 references in said provisions are general references.
Clarifies the meaning of "previous" in provisions which
22 require statements regarding previous offenses.
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