House Bill 0389

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    Florida House of Representatives - 1999                 HB 389

        By Representatives Cantens, Villalobos, Barreiro and Kyle






  1                      A bill to be entitled

  2         An act relating to pretrial detention;

  3         providing a short title; amending s. 907.041,

  4         F.S.; revising criteria for pretrial detention;

  5         permitting the court to order pretrial

  6         detention under specified circumstances when it

  7         finds a substantial probability that a

  8         defendant committed the charged crime of DUI

  9         manslaughter as defined by s. 316.193, F.S.,

10         relating to driving under the influence, and

11         that the defendant poses the threat of harm to

12         the community; specifying certain conditions

13         that would support a finding that the defendant

14         poses the threat of harm to the community;

15         deleting requirement for additional court

16         findings for pretrial detention; permitting

17         pretrial detention for any violation of

18         conditions of pretrial release or bond which,

19         in the discretion of the court, supports a

20         finding that no condition of release can

21         reasonably protect the community from physical

22         harm, assure the presence of the accused at

23         trial, or assure the integrity of the judicial

24         process; deleting limitation upon detention

25         period when detention is based on threat of

26         harm to the community; authorizing a court to

27         detain a defendant at a bail hearing without

28         separate hearing or motion for pretrial

29         detention; authorizing the state to orally move

30         for pretrial detention any time the defendant

31         is before the court for a bail hearing;

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  1         providing for construction; reenacting s.

  2         790.065(2)(c), F.S., relating to sale and

  3         delivery of firearms, s. 943.0585, F.S.,

  4         relating to court-ordered expunction of

  5         criminal history records, and s. 943.059, F.S.,

  6         relating to court-ordered sealing of criminal

  7         history records, to incorporate said amendment

  8         in references; repealing Rules 3.131 and 3.132,

  9         Florida Rules of Criminal Procedure, relating

10         to pretrial release and pretrial detention, to

11         the extent of inconsistency with the act;

12         amending s. 903.31, F.S.; providing for

13         cancellation of bond under certain

14         circumstances; providing an effective date.

15

16  Be It Enacted by the Legislature of the State of Florida:

17

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

19  Robert Smith Act."

20         Section 2.  Section 907.041, Florida Statutes, is

21  amended to read:

22         907.041  Pretrial detention and release.--

23         (1)  LEGISLATIVE INTENT.--It is the policy of this

24  state that persons committing serious criminal offenses,

25  posing a threat to the safety of the community or the

26  integrity of the judicial process, or failing to appear at

27  trial be detained upon arrest.  However, persons found to meet

28  specified criteria shall be released under certain conditions

29  until proceedings are concluded and adjudication has been

30  determined. The Legislature finds that this policy of pretrial

31  detention and release will assure the detention of those

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  1  persons posing a threat to society while reducing the costs

  2  for incarceration by releasing, until trial, those persons not

  3  considered a danger to the community who meet certain

  4  criteria.  It is the intent of the Legislature that the

  5  primary consideration be the protection of the community from

  6  risk of physical harm to persons.

  7         (2)  RULES OF PROCEDURE.--Procedures for pretrial

  8  release determinations shall be governed by rules adopted by

  9  the Supreme Court.

10         (3)  RELEASE ON NONMONETARY CONDITIONS.--It is the

11  intent of the Legislature to create a presumption in favor of

12  release on nonmonetary conditions for any person who is

13  granted pretrial release.  Such person shall be released on

14  monetary conditions only if it is determined that such

15  monetary conditions are necessary to assure the presence of

16  the person at trial or at other proceedings, to protect the

17  community from risk of physical harm to persons, to assure the

18  presence of the accused at trial, or to assure the integrity

19  of the judicial process.

20         (4)  PRETRIAL DETENTION.--

21         (a)  As used in this subsection, "dangerous crime"

22  means any of the following:

23         1.  Arson;

24         2.  Aggravated assault;

25         3.  Aggravated battery;

26         4.  Illegal use of explosives;

27         5.  Child abuse or aggravated child abuse;

28         6.  Abuse of an elderly person or disabled adult, or

29  aggravated abuse of an elderly person or disabled adult;

30         7.  Hijacking;

31         8.  Kidnapping;

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  1         9.  Homicide;

  2         10.  Manslaughter;

  3         11.  Sexual battery;

  4         12.  Robbery;

  5         13.  Carjacking;

  6         14.  Lewd, lascivious, or indecent assault or act upon

  7  or in presence of a child under the age of 16 years;

  8         15.  Sexual activity with a child, who is 12 years of

  9  age or older but less than 18 years of age, by or at

10  solicitation of person in familial or custodial authority;

11         16.  Burglary of a dwelling;

12         17.  Stalking and aggravated stalking;

13         18.  Act of domestic violence as defined in s. 741.28;

14  and

15         19.  Attempting or conspiring to commit any such crime;

16  and home-invasion robbery.

17         (b)  The court may order pretrial detention if it finds

18  a substantial probability, based on a defendant's past and

19  present patterns of behavior, the criteria in s. 903.046, and

20  any other relevant facts, that any of the following

21  circumstances exist:

22         1.  The defendant has previously violated conditions of

23  release and that no further conditions of release are

24  reasonably likely to assure the defendant's appearance at

25  subsequent proceedings;

26         2.  The defendant, with the intent to obstruct the

27  judicial process, has threatened, intimidated, or injured any

28  victim, potential witness, juror, or judicial officer, or has

29  attempted or conspired to do so, and that no condition of

30  release will reasonably prevent the obstruction of the

31  judicial process;

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  1         3.  The defendant is charged with trafficking in

  2  controlled substances as defined by s. 893.135, that there is

  3  a substantial probability that the defendant has committed the

  4  offense, and that no conditions of release will reasonably

  5  assure the defendant's appearance at subsequent criminal

  6  proceedings; or

  7         4.  The defendant is charged with DUI manslaughter, as

  8  defined by s. 316.193, and that there is a substantial

  9  probability that the defendant committed the crime and that

10  the defendant poses the threat of harm to the community;

11  conditions that would support a finding by the court pursuant

12  to this subparagraph that the defendant poses the threat of

13  harm to the community include, but are not limited to, any of

14  the following:

15         a.  The defendant has previously been convicted of any

16  crime under s. 316.193, or of any crime in any other state or

17  territory of the United States that is substantially similar

18  to any crime under s. 316.193;

19         b.  The defendant was driving with a suspended driver's

20  license when the charged crime was committed; or

21         c.  The defendant's driver's license has been suspended

22  at least two times prior to the commission of the charged

23  crime;

24         5.4.  The defendant poses the threat of harm to the

25  community.  The court may so conclude if it finds that the

26  defendant is presently charged with a dangerous crime, that

27  there is a substantial probability that the defendant

28  committed such crime, that the factual circumstances of the

29  crime indicate a disregard for the safety of the community,

30  and that there are no conditions of release reasonably

31  sufficient to protect the community from the risk of physical

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  1  harm to persons. In addition, the court must find that at

  2  least one of the following conditions is present:

  3         a.  The defendant has previously been convicted of a

  4  crime punishable by death or life imprisonment.

  5         b.  The defendant has been convicted of a dangerous

  6  crime within the 10 years immediately preceding the date of

  7  his or her arrest for the crime presently charged.

  8         6.c.  The defendant was is on probation, parole, or

  9  other release pending completion of sentence or on pretrial

10  release for a dangerous crime at the time of the current

11  offense was committed; or arrest.

12         7.  The defendant has violated one or more conditions

13  of pretrial release or bond for the offense currently before

14  the court and the violation, in the discretion of the court,

15  supports a finding that no conditions of release can

16  reasonably protect the community from risk of physical harm to

17  persons or assure the presence of the accused at trial.

18         (c)  When a person charged with a crime for which

19  pretrial detention could be ordered is arrested, the arresting

20  agency shall promptly notify the state attorney of the arrest

21  and shall provide the state attorney with such information as

22  the arresting agency has obtained relative to:

23         1.  The nature and circumstances of the offense

24  charged;

25         2.  The nature of any physical evidence seized and the

26  contents of any statements obtained from the defendant or any

27  witness;

28         3.  The defendant's family ties, residence, employment,

29  financial condition, and mental condition; and

30

31

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  1         4.  The defendant's past conduct and present conduct,

  2  including any record of convictions, previous flight to avoid

  3  prosecution, or failure to appear at court proceedings.

  4         (d)  When a person charged with a crime for which

  5  pretrial detention could be ordered is arrested, the arresting

  6  agency may detain such defendant, prior to the filing by the

  7  state attorney of a motion seeking pretrial detention, for a

  8  period not to exceed 24 hours.

  9         (e)  The court shall order detention only after a

10  pretrial detention hearing.  The pretrial detention hearing

11  shall be held within 5 days of the filing by the state

12  attorney of a complaint to seek pretrial detention.  The

13  defendant may request a continuance.  No continuance shall be

14  for longer than 5 days unless there are extenuating

15  circumstances. The defendant may be detained pending the

16  hearing.  The state attorney shall be entitled to one

17  continuance for good cause.

18         (f)  The state attorney has the burden of showing the

19  need for pretrial detention.

20         (g)  The defendant is entitled to be represented by

21  counsel, to present witnesses and evidence, and to

22  cross-examine witnesses.  The court may admit relevant

23  evidence without complying with the rules of evidence, but

24  evidence secured in violation of the United States

25  Constitution or the Constitution of the State of Florida shall

26  not be admissible.  No testimony by the defendant shall be

27  admissible to prove guilt at any other judicial proceeding,

28  but such testimony may be admitted in an action for perjury,

29  based upon the defendant's statements made at the pretrial

30  detention hearing, or for impeachment.

31

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  1         (h)  The pretrial detention order of the court shall be

  2  based solely upon evidence produced at the hearing and shall

  3  contain findings of fact and conclusions of law to support it.

  4  The order shall be made either in writing or orally on the

  5  record. The court shall render its findings within 24 hours of

  6  the pretrial detention hearing.

  7         (i)  If ordered detained pending trial pursuant to

  8  subparagraph (b)4., the defendant may not be held for more

  9  than 90 days.  Failure of the state to bring the defendant to

10  trial within that time shall result in the defendant's release

11  from detention, subject to any conditions of release, unless

12  the trial delay was requested or caused by the defendant or

13  his or her counsel.

14         (i)(j)  A defendant convicted at trial following the

15  issuance of a pretrial detention order shall have credited to

16  his or her sentence, if imprisonment is imposed, the time the

17  defendant was held under the order, pursuant to s. 921.161.

18         (j)(k)  The defendant shall be entitled to dissolution

19  of the pretrial detention order whenever the court finds that

20  a subsequent event has eliminated the basis for detention.

21         (k)  Nothing in this section shall be construed to

22  require the filing of a motion for pretrial detention as a

23  condition precedent to detaining the defendant if the

24  defendant is brought before the court for a bail hearing.

25  Notwithstanding paragraph (e), the state may orally move for

26  pretrial detention any time a defendant is before the court

27  for a bail hearing.

28         Section 3.  For the purpose of incorporating the

29  amendment to section 907.041, Florida Statutes, in references

30  thereto, the following sections or subdivisions of Florida

31

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  1  Statutes, or Florida Statutes, 1998 Supplement, are reenacted

  2  to read:

  3         790.065  Sale and delivery of firearms.--

  4         (2)  Upon receipt of a request for a criminal history

  5  record check, the Department of Law Enforcement shall, during

  6  the licensee's call or by return call, forthwith:

  7         (c)1.  Review any records available to it to determine

  8  whether the potential buyer or transferee has been indicted or

  9  has had an information filed against her or him for an offense

10  that is a felony under either state or federal law, or, as

11  mandated by federal law, has had an injunction for protection

12  against domestic violence entered against the potential buyer

13  or transferee under s. 741.30, has had an injunction for

14  protection against repeat violence entered against the

15  potential buyer or transferee under s. 784.046, or has been

16  arrested for a dangerous crime as specified in s.

17  907.041(4)(a) or for any of the following enumerated offenses:

18         a.  Criminal anarchy under ss. 876.01 and 876.02.

19         b.  Extortion under s. 836.05.

20         c.  Explosives violations under s. 552.22(1) and (2).

21         d.  Controlled substances violations under chapter 893.

22         e.  Resisting an officer with violence under s. 843.01.

23         f.  Weapons and firearms violations under this chapter.

24         g.  Treason under s. 876.32.

25         h.  Assisting self-murder under s. 782.08.

26         i.  Sabotage under s. 876.38.

27         j.  Stalking or aggravated stalking under s. 784.048.

28

29  If the review indicates any such indictment, information, or

30  arrest, the department shall provide to the licensee a

31  conditional nonapproval number.

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  1         2.  Within 24 working hours, the department shall

  2  determine the disposition of the indictment, information, or

  3  arrest and inform the licensee as to whether the potential

  4  buyer is prohibited from receiving or possessing a firearm.

  5  For purposes of this paragraph, "working hours" means the

  6  hours from 8 a.m. to 5 p.m. Monday through Friday, excluding

  7  legal holidays.

  8         3.  The office of the clerk of court, at no charge to

  9  the department, shall respond to any department request for

10  data on the disposition of the indictment, information, or

11  arrest as soon as possible, but in no event later than 8

12  working hours.

13         4.  The department shall determine as quickly as

14  possible within the allotted time period whether the potential

15  buyer is prohibited from receiving or possessing a firearm.

16         5.  If the potential buyer is not so prohibited, or if

17  the department cannot determine the disposition information

18  within the allotted time period, the department shall provide

19  the licensee with a conditional approval number.

20         6.  If the buyer is so prohibited, the conditional

21  nonapproval number shall become a nonapproval number.

22         7.  The department shall continue its attempts to

23  obtain the disposition information and may retain a record of

24  all approval numbers granted without sufficient disposition

25  information.  If the department later obtains disposition

26  information which indicates:

27         a.  That the potential buyer is not prohibited from

28  owning a firearm, it shall treat the record of the transaction

29  in accordance with this section; or

30

31

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  1         b.  That the potential buyer is prohibited from owning

  2  a firearm, it shall immediately revoke the conditional

  3  approval number and notify local law enforcement.

  4         8.  During the time that disposition of the indictment,

  5  information, or arrest is pending and until the department is

  6  notified by the potential buyer that there has been a final

  7  disposition of the indictment, information, or arrest, the

  8  conditional nonapproval number shall remain in effect.

  9         943.0585  Court-ordered expunction of criminal history

10  records.--The courts of this state have jurisdiction over

11  their own procedures, including the maintenance, expunction,

12  and correction of judicial records containing criminal history

13  information to the extent such procedures are not inconsistent

14  with the conditions, responsibilities, and duties established

15  by this section.  Any court of competent jurisdiction may

16  order a criminal justice agency to expunge the criminal

17  history record of a minor or an adult who complies with the

18  requirements of this section.  The court shall not order a

19  criminal justice agency to expunge a criminal history record

20  until the person seeking to expunge a criminal history record

21  has applied for and received a certificate of eligibility for

22  expunction pursuant to subsection (2).  A criminal history

23  record that relates to a violation of chapter 794, s. 800.04,

24  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

25  violation enumerated in s. 907.041 may not be expunged,

26  without regard to whether adjudication was withheld, if the

27  defendant was found guilty of or pled guilty or nolo

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

29  was found to have committed, or pled guilty or nolo contendere

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

31  only order expunction of a criminal history record pertaining

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  1  to one arrest or one incident of alleged criminal activity,

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

  3  discretion, order the expunction of a criminal history record

  4  pertaining to more than one arrest if the additional arrests

  5  directly relate to the original arrest. If the court intends

  6  to order the expunction of records pertaining to such

  7  additional arrests, such intent must be specified in the

  8  order. A criminal justice agency may not expunge any record

  9  pertaining to such additional arrests if the order to expunge

10  does not articulate the intention of the court to expunge a

11  record pertaining to more than one arrest. This section does

12  not prevent the court from ordering the expunction of only a

13  portion of a criminal history record pertaining to one arrest

14  or one incident of alleged criminal activity.  Notwithstanding

15  any law to the contrary, a criminal justice agency may comply

16  with laws, court orders, and official requests of other

17  jurisdictions relating to expunction, correction, or

18  confidential handling of criminal history records or

19  information derived therefrom.  This section does not confer

20  any right to the expunction of any criminal history record,

21  and any request for expunction of a criminal history record

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

23         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

24  RECORD.--Each petition to a court to expunge a criminal

25  history record is complete only when accompanied by:

26         (a)  A certificate of eligibility for expunction issued

27  by the department pursuant to subsection (2).

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

29  the petitioner:

30         1.  Has never previously been adjudicated guilty of a

31  criminal offense or comparable ordinance violation or

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  1  adjudicated delinquent for committing a felony or a

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

  3         2.  Has not been adjudicated guilty of, or adjudicated

  4  delinquent for committing, any of the acts stemming from the

  5  arrest or alleged criminal activity to which the petition

  6  pertains.

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

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

  9  893.14, former s. 901.33, or former s. 943.058, or from any

10  jurisdiction outside the state.

11         4.  Is eligible for such an expunction to the best of

12  his or her knowledge or belief and does not have any other

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

14  court.

15

16  Any person who knowingly provides false information on such

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

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

19  s. 775.084.

20         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

21  to petitioning the court to expunge a criminal history record,

22  a person seeking to expunge a criminal history record shall

23  apply to the department for a certificate of eligibility for

24  expunction. The department shall, by rule adopted pursuant to

25  chapter 120, establish procedures pertaining to the

26  application for and issuance of certificates of eligibility

27  for expunction. The department shall issue a certificate of

28  eligibility for expunction to a person who is the subject of a

29  criminal history record if that person:

30

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  1         (a)  Has obtained, and submitted to the department, a

  2  written, certified statement from the appropriate state

  3  attorney or statewide prosecutor which indicates:

  4         1.  That an indictment, information, or other charging

  5  document was not filed or issued in the case.

  6         2.  That an indictment, information, or other charging

  7  document, if filed or issued in the case, was dismissed or

  8  nolle prosequi by the state attorney or statewide prosecutor,

  9  or was dismissed by a court of competent jurisdiction.

10         3.  That the criminal history record does not relate to

11  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

12  chapter 839, s. 893.135, or a violation enumerated in s.

13  907.041, where the defendant was found guilty of, or pled

14  guilty or nolo contendere to any such offense, or that the

15  defendant, as a minor, was found to have committed, or pled

16  guilty or nolo contendere to committing, such an offense as a

17  delinquent act, without regard to whether adjudication was

18  withheld.

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 submitted to the department a certified copy

23  of the disposition of the charge to which the petition to

24  expunge pertains.

25         (d)  Has never previously been adjudicated guilty of a

26  criminal offense or comparable ordinance violation or

27  adjudicated delinquent for committing a felony or a

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

29         (e)  Has not been adjudicated guilty of, or adjudicated

30  delinquent for committing, any of the acts stemming from the

31

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  1  arrest or alleged criminal activity to which the petition to

  2  expunge pertains.

  3         (f)  Has never secured a prior sealing or expunction of

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

  5  893.14, former s. 901.33, or former s. 943.058.

  6         (g)  Is no longer under court supervision applicable to

  7  the disposition of the arrest or alleged criminal activity to

  8  which the petition to expunge pertains.

  9         (h)  Is not required to wait a minimum of 10 years

10  prior to being eligible for an expunction of such records

11  because all charges related to the arrest or criminal activity

12  to which the petition to expunge pertains were dismissed prior

13  to trial, adjudication, or the withholding of adjudication.

14  Otherwise, such criminal history record must be sealed under

15  this section, former s. 893.14, former s. 901.33, or former s.

16  943.058 for at least 10 years before such record is eligible

17  for expunction.

18         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

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

20  of the completed petition to expunge shall be served upon the

21  appropriate state attorney or the statewide prosecutor and

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

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

24  state attorney or the statewide prosecutor and the arresting

25  agency may respond to the court regarding the completed

26  petition to expunge.

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

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

29  state attorney or the statewide prosecutor and the arresting

30  agency. The arresting agency is responsible for forwarding the

31  order to any other agency to which the arresting agency

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  1  disseminated the criminal history record information to which

  2  the order pertains. The department shall forward the order to

  3  expunge to the Federal Bureau of Investigation. The clerk of

  4  the court shall certify a copy of the order to any other

  5  agency which the records of the court reflect has received the

  6  criminal history record from the court.

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

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

  9  state attorney or statewide prosecutor of an order to expunge

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 expunge. The

17  department shall seal the record until such time as the order

18  is voided 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 expunge 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 expunge when the petitioner for such

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  1  order failed to obtain the certificate of eligibility as

  2  required by this section or such order does not otherwise

  3  comply with the requirements of this section.

  4         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

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

  6  ordered expunged by a court of competent jurisdiction pursuant

  7  to this section must be physically destroyed or obliterated by

  8  any criminal justice agency having custody of such record;

  9  except that any criminal history record in the custody of the

10  department must be retained in all cases. A criminal history

11  record ordered expunged that is retained by the department is

12  confidential and exempt from the provisions of s. 119.07(1)

13  and s. 24(a), Art. I of the State Constitution and not

14  available to any person or entity except upon order of a court

15  of competent jurisdiction. A criminal justice agency may

16  retain a notation indicating compliance with an order to

17  expunge.

18         (a)  The person who is the subject of a criminal

19  history record that is expunged under this section or under

20  other provisions of law, including former s. 893.14, former s.

21  901.33, and former s. 943.058, may lawfully deny or fail to

22  acknowledge the arrests covered by the expunged record, except

23  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. 943.059;

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 Children and Family Services

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  1  or the Department of Juvenile Justice or to be employed or

  2  used by such contractor or licensee in a sensitive position

  3  having direct contact with children, the developmentally

  4  disabled, the aged, or the elderly as provided in s.

  5  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

  6  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

  7  415.1075(4), s. 985.407, 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 that

12  licenses child care facilities.

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

14  person who has been granted an expunction 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 an

19  expunged criminal history record.

20         (c)  Information relating to the existence of an

21  expunged criminal history record which is provided in

22  accordance with paragraph (a) is confidential and exempt from

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

24  State Constitution, except that the department shall disclose

25  the existence of a criminal history record ordered expunged to

26  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

27  for their respective licensing and employment purposes, and to

28  criminal justice agencies for their respective criminal

29  justice purposes.  It is unlawful for any employee of an

30  entity set forth in subparagraph (a)1., subparagraph (a)4.,

31  subparagraph (a)5., or subparagraph (a)6. to disclose

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  1  information relating to the existence of an expunged criminal

  2  history record of a person seeking employment or licensure

  3  with such entity or contractor, except to the person to whom

  4  the criminal history record relates or to persons having

  5  direct responsibility for employment or licensure decisions.

  6  Any person who violates this paragraph commits a misdemeanor

  7  of the first degree, punishable as provided in s. 775.082 or

  8  s. 775.083.

  9         943.059  Court-ordered sealing of criminal history

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

11  jurisdiction over their own procedures, including the

12  maintenance, sealing, and correction of judicial records

13  containing criminal history information to the extent such

14  procedures are not inconsistent with the conditions,

15  responsibilities, and duties established by this section.  Any

16  court of competent jurisdiction may order a criminal justice

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

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

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

20  criminal history record until the person seeking to seal a

21  criminal history record has applied for and received a

22  certificate of eligibility for sealing pursuant to subsection

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

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

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

26  sealed, without regard to whether adjudication was withheld,

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

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

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

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

31  only order sealing of a criminal history record pertaining to

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  1  one arrest or one incident of alleged criminal activity,

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

  3  discretion, order the sealing of a criminal history record

  4  pertaining to more than one arrest if the additional arrests

  5  directly relate to the original arrest.  If the court intends

  6  to order the sealing of records pertaining to such additional

  7  arrests, such intent must be specified in the order.  A

  8  criminal justice agency may not seal any record pertaining to

  9  such additional arrests if the order to seal does not

10  articulate the intention of the court to seal records

11  pertaining to more than one arrest.  This section does not

12  prevent the court from ordering the sealing of only a portion

13  of a criminal history record pertaining to one arrest or one

14  incident of alleged criminal activity. Notwithstanding any law

15  to the contrary, a criminal justice agency may comply with

16  laws, court orders, and official requests of other

17  jurisdictions relating to sealing, correction, or confidential

18  handling of criminal history records or information derived

19  therefrom.  This section does not confer any right to the

20  sealing of any criminal history record, and any request for

21  sealing a criminal history record may be denied at the sole

22  discretion of the court.

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

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

25  complete only when accompanied by:

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

27  the department pursuant to subsection (2).

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

29  the petitioner:

30         1.  Has never previously been adjudicated guilty of a

31  criminal offense or comparable ordinance violation or

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  1  adjudicated delinquent for committing a felony or a

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

  3         2.  Has not been adjudicated guilty of or adjudicated

  4  delinquent for committing any of the acts stemming from the

  5  arrest or alleged criminal activity to which the petition to

  6  seal pertains.

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

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

  9  893.14, former s. 901.33, former s. 943.058, or from any

10  jurisdiction outside the state.

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

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

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

14  court.

15

16  Any person who knowingly provides false information on such

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

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

19  s. 775.084.

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

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

22  person seeking to seal a criminal history record shall apply

23  to the department for a certificate of eligibility for

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

25  chapter 120, establish procedures pertaining to the

26  application for and issuance of certificates of eligibility

27  for sealing.  The department shall issue a certificate of

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

29  criminal history record provided that such person:

30

31

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

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

  3  pertains.

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

  5  placement in the Department of Law Enforcement Operating Trust

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

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

  8  criminal offense or comparable ordinance violation or

  9  adjudicated delinquent for committing a felony or a

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

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

12  delinquent for committing any of the acts stemming from the

13  arrest or alleged criminal activity to which the petition to

14  seal pertains.

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

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

17  893.14, former s. 901.33, or former s. 943.058.

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

19  the disposition of the arrest or alleged criminal activity to

20  which the petition to seal pertains.

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

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

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

24  appropriate state attorney or the statewide prosecutor and

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

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

27  state attorney or the statewide prosecutor and the arresting

28  agency may respond to the court regarding the completed

29  petition to seal.

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

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

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  1  state attorney or the statewide prosecutor and to the

  2  arresting agency. The arresting agency is responsible for

  3  forwarding the order to any other agency to which the

  4  arresting agency disseminated the criminal history record

  5  information to which the order pertains. The department shall

  6  forward the order to seal to the Federal Bureau of

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

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

  9  reflect has received the criminal history record from the

10  court.

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

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

13  state attorney or statewide prosecutor of any order to seal

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

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

16  comparable ordinance violation or has had a prior criminal

17  history record sealed or expunged.  Upon receipt of such

18  notice, the appropriate state attorney or statewide prosecutor

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

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

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

22  by the court.

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

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

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

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

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

28  the appropriate state attorney or statewide prosecutor, the

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

30  agency of the reason for noncompliance. The appropriate state

31  attorney or statewide prosecutor shall take action within 60

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

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

  3  arise against any criminal justice agency for failure to

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

  5  order failed to obtain the certificate of eligibility as

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

  7  with the requirements of this section.

  8         (e)  An order sealing a criminal history record

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

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

11  maintained by the department and other criminal justice

12  agencies.

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

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

15  ordered sealed by a court of competent jurisdiction pursuant

16  to this section is confidential and exempt from the provisions

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

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

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

20  agencies for their respective criminal justice purposes, or to

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

22  6. for their respective licensing and employment purposes.

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

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

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

26  lawfully deny or fail to acknowledge the arrests covered by

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

28         1.  Is a candidate for employment with a criminal

29  justice agency;

30         2.  Is a defendant in a criminal prosecution;

31

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  1         3.  Concurrently or subsequently petitions for relief

  2  under this section or s. 943.0585;

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

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

  5  contract with the Department of Children and Family Services

  6  or the Department of Juvenile Justice or to be employed or

  7  used by such contractor or licensee in a sensitive position

  8  having direct contact with children, the developmentally

  9  disabled, the aged, or the elderly as provided in s.

10  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

11  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

12  415.103, s. 985.407, or chapter 400; or

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

14  of Teacher Education, Certification, Staff Development, and

15  Professional Practices of the Department of Education, any

16  district school board, or any local governmental entity which

17  licenses child care facilities.

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

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

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

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

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

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

24  sealed criminal history record.

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

26  criminal record provided in accordance with the provisions of

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

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

29  Constitution, except that the department shall disclose the

30  sealed criminal history record to the entities set forth in

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

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  1  licensing and employment purposes. It is unlawful for any

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

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

  4  to disclose information relating to the existence of a sealed

  5  criminal history record of a person seeking employment or

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

  7  to whom the criminal history record relates or to persons

  8  having direct responsibility for employment or licensure

  9  decisions.  Any person who violates the provisions of this

10  paragraph commits a misdemeanor of the first degree,

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

12         Section 4.  Rules 3.131 and 3.132, Florida Rules of

13  Criminal Procedure, are hereby repealed to the extent that

14  they are inconsistent with this act.

15         Section 5.  Section 903.31, Florida Statutes, is

16  amended to read:

17         903.31  Canceling the bond.--

18         (1)  Within 10 business days after the conditions of a

19  bond have been satisfied or the forfeiture discharged or

20  remitted, the court shall order the bond canceled and, if the

21  surety has attached a certificate of cancellation to the

22  original bond, shall furnish an executed certificate of

23  cancellation to the surety without cost. An adjudication of

24  guilt or innocence of the defendant shall satisfy the

25  conditions of the bond.  The original appearance bond shall

26  not be construed to guarantee deferred sentences, appearance

27  during or after a presentence investigation, appearance during

28  or after appeals, conduct during or appearance after admission

29  to a pretrial intervention program, payment of fines, or

30  attendance at educational or rehabilitation facilities the

31  court otherwise provides in the judgment.

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  1         (2)  In any case where no formal charges have been

  2  brought against defendant within 365 days after arrest, the

  3  court shall order the bond canceled unless good cause is shown

  4  by the state.

  5         Section 6.  This act shall take effect October 1, 1999,

  6  except that section 4 shall take effect only if this act is

  7  passed by the affirmative vote of two-thirds of the membership

  8  of each house of the Legislature.

  9

10            *****************************************

11                          HOUSE SUMMARY

12
      Revises criteria for pretrial detention. Permits the
13    court to order pretrial detention under specified
      circumstances when it finds a substantial probability
14    that a defendant charged with DUI manslaughter committed
      the crime and that the defendant poses the threat of harm
15    to the community. Specifies certain conditions that would
      support the finding that the defendant poses the threat
16    of harm to the community. Deletes a requirement for
      additional court findings for pretrial detention.
17    Provides that a court may detain a defendant after a bail
      hearing without separate hearing or motion for pretrial
18    detention if the court finds that no conditions of
      release can protect the community from harm or assure the
19    defendant's presence at trial. Removes limitation upon
      detention period when detention is based on threat of
20    harm to the community. Authorizes a court to detain a
      defendant at a bail hearing without separate hearing or
21    motion for pretrial detention and authorizes the state to
      orally move for pretrial detention any time the defendant
22    is before the court for a bail hearing. Reenacts various
      statutory provisions to incorporate changes made by the
23    act in references. Repeals Rules 3.131 and 3.132, Florida
      Rules of Criminal Procedure, relating to pretrial release
24    and pretrial detention, to the extent that they are
      inconsistent with the act. Provides for cancellation of
25    bond when no formal charges are brought against the
      defendant within one year after arrest.
26

27

28

29

30

31

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