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





                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Brown-Waite moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         On page 1, line 10,

15

16  and insert:

17         Section 1.  Section 943.0542, Florida Statutes, is

18  created to read:

19         943.0542  Access to criminal history information

20  provided by the department to qualified entities.--

21         (1)  As used in this section, the term:

22         (a)  "Care" means the provision of care, treatment,

23  education, training, instruction, supervision, or recreation

24  to children, the elderly, or individuals with disabilities.

25         (b)  "Qualified entity" means a business or

26  organization, whether public, private, operated for profit,

27  operated not for profit, or voluntary, which provides care or

28  care-placement services, including a business or organization

29  that licenses or certifies others to provide care or

30  care-placement services.

31         (2)(a)  A qualified entity must register with the

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                                                  SENATE AMENDMENT

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 1  department before submitting a request for screening under

 2  this section. Each such request must be voluntary and conform

 3  to the requirements established in the National Child

 4  Protection Act of 1993, as amended. As a part of the

 5  registration, the qualified entity must agree to comply with

 6  state and federal law and must so indicate by signing an

 7  agreement approved by the department. The department may

 8  periodically audit qualified entities to ensure compliance

 9  with federal law and this section.

10         (b)  A qualified entity shall submit to the department

11  a request for screening an employee or volunteer or person

12  applying to be an employee or volunteer on a completed

13  fingerprint card, with a signed waiver allowing the release of

14  state and national criminal history record information to the

15  qualified entity.

16         (c)  Each such request must be accompanied by a fee,

17  which shall approximate the actual cost of producing the

18  record information, as provided in s. 943.053, plus the amount

19  required by the Federal Bureau of Investigation for the

20  national criminal history check in compliance with the

21  National Child Protection Act of 1993, as amended.

22         (d)  Any current or prospective employee or volunteer

23  who is subject to a request for screening must indicate to the

24  qualified entity submitting the request the name and address

25  of each qualified entity that has submitted a previous request

26  for screening regarding that employee or volunteer.

27         (3)  The department shall provide directly to the

28  qualified entity the state criminal history records that are

29  not exempt from disclosure under chapter 119 or otherwise

30  confidential under law. A person who is the subject of a state

31  criminal history record may challenge the record only as

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                                                  SENATE AMENDMENT

    Bill No. HB 391

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 1  provided in s. 943.056.

 2         (4)  The national criminal history data is available to

 3  qualified entities to use only for the purpose of screening

 4  employees and volunteers or persons applying to be an employee

 5  or volunteer with a qualified entity. The department shall

 6  provide this national criminal history record information

 7  directly to the qualified entity as authorized by the written

 8  waiver required for submission of a request to the department.

 9         (5)  The determination whether the criminal history

10  record shows that the employee or volunteer has been convicted

11  of or is under pending indictment for any crime that bears

12  upon the fitness of the employee or volunteer to have

13  responsibility for the safety and well-being of children, the

14  elderly, or disabled persons shall solely be made by the

15  qualified entity. This section does not require the department

16  to make such a determination on behalf of any qualified

17  entity.

18         (6)  The qualified entity must notify in writing the

19  person of his or her right to obtain a copy of any background

20  screening report, including the criminal history records, if

21  any, contained in the report, and of the person's right to

22  challenge the accuracy and completeness of any information

23  contained in any such report and to obtain a determination as

24  to the validity of such challenge before a final determination

25  regarding the person is made by the qualified entity reviewing

26  the criminal history information. A qualified entity that is

27  required by law to apply screening criteria, including any

28  right to contest or request an exemption from

29  disqualification, shall apply such screening criteria to the

30  state and national criminal history record information

31  received from the department for those persons subject to the

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 1  required screening.

 2         (7)  The department may establish a database of

 3  registered qualified entities and make this data available

 4  free of charge to all registered qualified entities. The

 5  database must include, at a minimum, the name, address, and

 6  phone number of each qualified entity.

 7         (8)  A qualified entity is not liable for damages

 8  solely for failing to obtain the information authorized under

 9  this section with respect to an employee or volunteer. The

10  state, any political subdivision of the state, or any agency,

11  officer, or employee of the state or a political subdivision

12  is not liable for damages for providing the information

13  requested under this section.

14         (9)  The department has authority to adopt rules to

15  implement this section.

16         Section 2.  Section 943.0543, Florida Statutes, is

17  created to read:

18         943.0543  National Crime Prevention and Privacy

19  Compact; ratification and implementation.--

20         (1)  In order to facilitate the authorized interstate

21  exchange of criminal history information for noncriminal

22  justice purposes, including, but not limited to, background

23  checks for the licensing and screening of employees and

24  volunteers under the National Child Protection Act of 1993, as

25  amended, and to implement the National Crime Prevention and

26  Privacy Compact, 42 U.S.C. s. 14616, the Legislature approves

27  and ratifies the compact. The executive director of the

28  Department of Law Enforcement shall execute the compact on

29  behalf of the state.

30         (2)  The department is the repository of criminal

31  history records for purposes of the compact and shall do all

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 1  things necessary or incidental to carrying out the compact.

 2         (3)  The executive director of the department, or the

 3  director's designee, is the state's compact officer and shall

 4  administer the compact within the state. The department may

 5  adopt rules and establish procedures for the cooperative

 6  exchange of criminal history records between the state and

 7  Federal Government for use in noncriminal justice cases.

 8         (4)  The state's ratification of the compact remains in

 9  effect until legislation is enacted which specifically

10  renounces the compact.

11         (5)  This compact and this section do not affect or

12  abridge the obligations and responsibilities of the department

13  under other provisions of this chapter, including s. 943.053,

14  and does not alter or amend the manner, direct or otherwise,

15  in which the public is afforded access to criminal history

16  records under state law.

17         Section 3.  Section 943.0544, Florida Statutes, is

18  created to read:

19         943.0544  Criminal justice information network and

20  information management.--

21         (1)  The department may develop, implement, maintain,

22  and manage innovative, progressive, and effective methods of

23  serving the information-management needs of criminal justice

24  agencies, and may take necessary steps to promote the

25  efficient and cost-effective use of such information.

26         (2)  The department may develop, implement, maintain,

27  manage, and operate the Criminal Justice Network, which shall

28  be an intraagency information and data-sharing network for use

29  by the state's criminal justice agencies. The department, in

30  consultation with the Criminal and Juvenile Justice

31  Information Systems Council, shall determine and regulate

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 1  access to the Criminal Justice Network by the state's criminal

 2  justice agencies.

 3         (3)  In addition, the department may authorize entities

 4  that offer or provide a product, program, or service

 5  determined by the department to be of substantial value to the

 6  criminal justice information needs of the state's criminal

 7  justice agencies a special limited presence on the network

 8  under terms, conditions, and limitations established by the

 9  department after consultation with the Criminal and Juvenile

10  Justice Information Systems Council.

11         (4)  In carrying out its duties under this section, the

12  department may enter into contracts; conduct pilot studies and

13  projects; assess and collect fees, commissions, royalties, or

14  other charges from entities approved for special presence on

15  the Criminal Justice Network in consideration for such

16  presence. The department may enter into agreements by which

17  products, programs, or services of value to the department or

18  the information needs of criminal justice agencies are

19  provided in lieu of all or a part of a fee, commission,

20  royalty, or charge that might otherwise be assessed by the

21  department upon an entity granted special limited presence as

22  provided in this subsection.

23         (5)  The department may enter into an agreement with

24  any entity to facilitate the department's responsibilities for

25  receiving, maintaining, managing, processing, allowing access

26  to, and disseminating criminal justice information,

27  intelligence, data, or criminal history records and

28  information, or to otherwise accomplish the duties and

29  responsibilities related to information and records as defined

30  in this chapter. The department may enter into agreements by

31  which products, programs, or services of value to the

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 1  department or the information needs of criminal justice

 2  agencies are provided in lieu of all or part of a fee,

 3  commission, royalty, or charge that might be otherwise

 4  assessed by the department upon an entity entering into an

 5  agreement with the department. Any entity under contract with

 6  the department to perform all or part of the department's

 7  information functions or duties shall, as specified in the

 8  contract, be performing such functions or duties as a criminal

 9  justice agency for purposes of handling, collecting, managing,

10  or disseminating criminal justice information, intelligence,

11  data, histories, and other records. Disclosure of such

12  information to an entity under such a contract does not waive

13  any confidentiality or exemption from disclosure under s.

14  119.07 or any other applicable law.

15         (6)  The department may adopt rules to administer this

16  section. Except as otherwise specified in this section, this

17  section does not alter or limit the powers and duties of the

18  department established under this chapter.

19         Section 4.  For the purpose of incorporating all

20  amendments made prior to the effective date of this act to the

21  chapters, sections, or subdivisions of Florida Statutes

22  referenced in section 943.0585, Florida Statutes, 1998

23  Supplement, which amendments have not been incorporated by

24  reference thereto, section 943.0585, Florida Statutes, 1998

25  Supplement, is reenacted and amended to read:

26         943.0585  Court-ordered expunction of criminal history

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

28  their own procedures, including the maintenance, expunction,

29  and correction of judicial records containing criminal history

30  information to the extent such procedures are not inconsistent

31  with the conditions, responsibilities, and duties established

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 1  by this section.  Any court of competent jurisdiction may

 2  order a criminal justice agency to expunge the criminal

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

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

 5  criminal justice agency to expunge a criminal history record

 6  until the person seeking to expunge a criminal history record

 7  has applied for and received a certificate of eligibility for

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

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

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

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

12  without regard to whether adjudication was withheld, if the

13  defendant was found guilty of or pled guilty or nolo

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

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

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

17  only order expunction of a criminal history record pertaining

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

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

20  discretion, order the expunction of a criminal history record

21  pertaining to more than one arrest if the additional arrests

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

23  to order the expunction of records pertaining to such

24  additional arrests, such intent must be specified in the

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

26  pertaining to such additional arrests if the order to expunge

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

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

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

30  portion of a criminal history record pertaining to one arrest

31  or one incident of alleged criminal activity.  Notwithstanding

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

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

 3  jurisdictions relating to expunction, correction, or

 4  confidential handling of criminal history records or

 5  information derived therefrom.  This section does not confer

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

 7  and any request for expunction of a criminal history record

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

 9         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

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

11  history record is complete only when accompanied by:

12         (a)  A certificate of eligibility for expunction issued

13  by the department pursuant to subsection (2).

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

15  the petitioner:

16         1.  Has never, prior to the date on which the petition

17  is filed, previously been adjudicated guilty of a criminal

18  offense or comparable ordinance violation or adjudicated

19  delinquent for committing a felony or a misdemeanor specified

20  in s. 943.051(3)(b).

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

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

23  arrest or alleged criminal activity to which the petition

24  pertains.

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

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

27  893.14, former s. 901.33, or former s. 943.058, or from any

28  jurisdiction outside the state.

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

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

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

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 1  court.

 2

 3  Any person who knowingly provides false information on such

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

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

 6  s. 775.084.

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

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

 9  a person seeking to expunge a criminal history record shall

10  apply to the department for a certificate of eligibility for

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

12  chapter 120, establish procedures pertaining to the

13  application for and issuance of certificates of eligibility

14  for expunction. The department shall issue a certificate of

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

16  criminal history record if that person:

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

18  written, certified statement from the appropriate state

19  attorney or statewide prosecutor which indicates:

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

21  document was not filed or issued in the case.

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

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

24  nolle prosequi by the state attorney or statewide prosecutor,

25  or was dismissed by a court of competent jurisdiction.

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

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

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

29  907.041, where the defendant was found guilty of, or pled

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

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

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

 2  delinquent act, without regard to whether adjudication was

 3  withheld.

 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 submitted to the department a certified copy

 8  of the disposition of the charge to which the petition to

 9  expunge pertains.

10         (d)  Has never, prior to the date on which the

11  application for a certificate of eligibility is filed,

12  previously been adjudicated guilty of a criminal offense or

13  comparable ordinance violation or adjudicated delinquent for

14  committing a felony or a misdemeanor specified in s.

15  943.051(3)(b).

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

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

18  arrest or alleged criminal activity to which the petition to

19  expunge pertains.

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

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

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

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

24  the disposition of the arrest or alleged criminal activity to

25  which the petition to expunge pertains.

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

27  prior to being eligible for an expunction of such records

28  because all charges related to the arrest or criminal activity

29  to which the petition to expunge pertains were dismissed prior

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

31  Otherwise, such criminal history record must be sealed under

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

 2  943.058 for at least 10 years before such record is eligible

 3  for expunction.

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

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

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

 7  appropriate state attorney or the statewide prosecutor and

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

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

10  state attorney or the statewide prosecutor and the arresting

11  agency may respond to the court regarding the completed

12  petition to expunge.

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

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

15  state attorney or the statewide prosecutor and the arresting

16  agency. The arresting agency is responsible for forwarding the

17  order to any other agency to which the arresting agency

18  disseminated the criminal history record information to which

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

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

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

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

23  criminal history record from the court.

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

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

26  state attorney or statewide prosecutor of an order to expunge

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

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

29  comparable ordinance violation or has had a prior criminal

30  history record sealed or expunged. Upon receipt of such

31  notice, the appropriate state attorney or statewide prosecutor

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

 2  petition the court to void the order to expunge. The

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

 4  is voided by the court.

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

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

 7  order to expunge entered by a court when such order does not

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

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

10  the appropriate state attorney or statewide prosecutor, the

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

12  agency of the reason for noncompliance. The appropriate state

13  attorney or statewide prosecutor shall take action within 60

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

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

16  arise against any criminal justice agency for failure to

17  comply with an order to expunge when the petitioner for such

18  order failed to obtain the certificate of eligibility as

19  required by this section or such order does not otherwise

20  comply with the requirements of this section.

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

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

23  ordered expunged by a court of competent jurisdiction pursuant

24  to this section must be physically destroyed or obliterated by

25  any criminal justice agency having custody of such record;

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

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

28  record ordered expunged that is retained by the department is

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

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

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

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 1  of competent jurisdiction. A criminal justice agency may

 2  retain a notation indicating compliance with an order to

 3  expunge.

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

 5  history record that is expunged under this section or under

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

 7  901.33, and former s. 943.058, may lawfully deny or fail to

 8  acknowledge the arrests covered by the expunged record, except

 9  when the subject of the record:

10         1.  Is a candidate for employment with a criminal

11  justice agency;

12         2.  Is a defendant in a criminal prosecution;

13         3.  Concurrently or subsequently petitions for relief

14  under this section or s. 943.059;

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

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

17  contract with the Department of Children and Family Services

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

19  used by such contractor or licensee in a sensitive position

20  having direct contact with children, the developmentally

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

22  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

23  402.302(3) s. 402.302(8), s. 402.313(3), s. 409.175(2)(i), s.

24  415.102(4), s. 415.1075(4), s. 985.407, or chapter 400; or

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

26  of Teacher Education, Certification, Staff Development, and

27  Professional Practices of the Department of Education, any

28  district school board, or any local governmental entity that

29  licenses child care facilities.

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

31  person who has been granted an expunction under this section,

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

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

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

 4  by reason of such person's failure to recite or acknowledge an

 5  expunged criminal history record.

 6         (c)  Information relating to the existence of an

 7  expunged criminal history record which is provided in

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

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

10  State Constitution, except that the department shall disclose

11  the existence of a criminal history record ordered expunged to

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

13  for their respective licensing and employment purposes, and to

14  criminal justice agencies for their respective criminal

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

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

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

18  information relating to the existence of an expunged criminal

19  history record of a person seeking employment or licensure

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

21  the criminal history record relates or to persons having

22  direct responsibility for employment or licensure decisions.

23  Any person who violates this paragraph commits a misdemeanor

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

25  s. 775.083.

26         (5)  STATUTORY REFERENCES.--Any reference to any other

27  chapter, section, or subdivision of the Florida Statutes in

28  this section constitutes a general reference under the

29  doctrine of incorporation by reference.

30         Section 5.  For the purpose of incorporating all

31  amendments made prior to the effective date of this act to the

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 1  chapters, sections, or subdivisions of Florida Statutes

 2  referenced in section 943.059, Florida Statutes, 1998

 3  Supplement, which amendments have not been incorporated by

 4  reference thereto, section 943.059, Florida Statutes, 1998

 5  Supplement, is reenacted and amended to read:

 6         943.059  Court-ordered sealing of criminal history

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

 8  jurisdiction over their own procedures, including the

 9  maintenance, sealing, and correction of judicial records

10  containing criminal history information to the extent such

11  procedures are not inconsistent with the conditions,

12  responsibilities, and duties established by this section.  Any

13  court of competent jurisdiction may order a criminal justice

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

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

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

17  criminal history record until the person seeking to seal a

18  criminal history record has applied for and received a

19  certificate of eligibility for sealing pursuant to subsection

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

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

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

23  sealed, without regard to whether adjudication was withheld,

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

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

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

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

28  only order sealing of a criminal history record pertaining to

29  one arrest or one incident of alleged criminal activity,

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

31  discretion, order the sealing of a criminal history record

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





 1  pertaining to more than one arrest if the additional arrests

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

 3  to order the sealing of records pertaining to such additional

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

 5  criminal justice agency may not seal any record pertaining to

 6  such additional arrests if the order to seal does not

 7  articulate the intention of the court to seal records

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

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

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

11  incident of alleged criminal activity. Notwithstanding any law

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

13  laws, court orders, and official requests of other

14  jurisdictions relating to sealing, correction, or confidential

15  handling of criminal history records or information derived

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

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

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

19  discretion of the court.

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

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

22  complete only when accompanied by:

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

24  the department pursuant to subsection (2).

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

26  the petitioner:

27         1.  Has never, prior to the date on which the petition

28  is filed, previously been adjudicated guilty of a criminal

29  offense or comparable ordinance violation or adjudicated

30  delinquent for committing a felony or a misdemeanor specified

31  in s. 943.051(3)(b).

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                                                  SENATE AMENDMENT

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    Amendment No.    





 1         2.  Has not been adjudicated guilty of or adjudicated

 2  delinquent for committing any of the acts stemming from the

 3  arrest or alleged criminal activity to which the petition to

 4  seal pertains.

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

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

 7  893.14, former s. 901.33, former s. 943.058, or from any

 8  jurisdiction outside the state.

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

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

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

12  court.

13

14  Any person who knowingly provides false information on such

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

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

17  s. 775.084.

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

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

20  person seeking to seal a criminal history record shall apply

21  to the department for a certificate of eligibility for

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

23  chapter 120, establish procedures pertaining to the

24  application for and issuance of certificates of eligibility

25  for sealing.  The department shall issue a certificate of

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

27  criminal history record provided that such person:

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

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

30  pertains.

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

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





 1  placement in the Department of Law Enforcement Operating Trust

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

 3         (c)  Has never, prior to the date on which the

 4  application for a certificate of eligibility is filed,

 5  previously been adjudicated guilty of a criminal offense or

 6  comparable ordinance violation or adjudicated delinquent for

 7  committing a felony or a misdemeanor specified in s.

 8  943.051(3)(b).

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

10  delinquent for committing any of the acts stemming from the

11  arrest or alleged criminal activity to which the petition to

12  seal pertains.

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

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

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

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

17  the disposition of the arrest or alleged criminal activity to

18  which the petition to seal pertains.

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

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

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

22  appropriate state attorney or the statewide prosecutor and

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

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

25  state attorney or the statewide prosecutor and the arresting

26  agency may respond to the court regarding the completed

27  petition to seal.

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

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

30  state attorney or the statewide prosecutor and to the

31  arresting agency. The arresting agency is responsible for

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





 1  forwarding the order to any other agency to which the

 2  arresting agency disseminated the criminal history record

 3  information to which the order pertains. The department shall

 4  forward the order to seal to the Federal Bureau of

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

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

 7  reflect has received the criminal history record from the

 8  court.

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

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

11  state attorney or statewide prosecutor of any order to seal

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

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

14  comparable ordinance violation or has had a prior criminal

15  history record sealed or expunged.  Upon receipt of such

16  notice, the appropriate state attorney or statewide prosecutor

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

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

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

20  by the court.

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

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

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

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

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

26  the appropriate state attorney or statewide prosecutor, the

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

28  agency of the reason for noncompliance. The appropriate state

29  attorney or statewide prosecutor shall take action within 60

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





 1  arise against any criminal justice agency for failure to

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

 3  order failed to obtain the certificate of eligibility as

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

 5  with the requirements of this section.

 6         (e)  An order sealing a criminal history record

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

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

 9  maintained by the department and other criminal justice

10  agencies.

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

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

13  ordered sealed by a court of competent jurisdiction pursuant

14  to this section is confidential and exempt from the provisions

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

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

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

18  agencies for their respective criminal justice purposes, or to

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

20  6. for their respective licensing and employment purposes.

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

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

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

24  lawfully deny or fail to acknowledge the arrests covered by

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

26         1.  Is a candidate for employment with a criminal

27  justice agency;

28         2.  Is a defendant in a criminal prosecution;

29         3.  Concurrently or subsequently petitions for relief

30  under this section or s. 943.0585;

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

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





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

 2  contract with the Department of Children and Family Services

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

 4  used by such contractor or licensee in a sensitive position

 5  having direct contact with children, the developmentally

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

 7  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

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

 9  415.102(4), s. 415.103, s. 985.407, or chapter 400; or

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

11  of Teacher Education, Certification, Staff Development, and

12  Professional Practices of the Department of Education, any

13  district school board, or any local governmental entity which

14  licenses child care facilities.

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

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

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

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

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

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

21  sealed criminal history record.

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

23  criminal record provided in accordance with the provisions of

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

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

26  Constitution, except that the department shall disclose the

27  sealed criminal history record to the entities set forth in

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

29  licensing and employment purposes. It is unlawful for any

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





 1  to disclose information relating to the existence of a sealed

 2  criminal history record of a person seeking employment or

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

 4  to whom the criminal history record relates or to persons

 5  having direct responsibility for employment or licensure

 6  decisions.  Any person who violates the provisions of this

 7  paragraph commits a misdemeanor of the first degree,

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

 9         (5)  STATUTORY REFERENCES.--Any reference to any other

10  chapter, section, or subdivision of the Florida Statutes in

11  this section constitutes a general reference under the

12  doctrine of incorporation by reference.

13         Section 6.  Subsection (5) of section 943.051, Florida

14  Statutes, as amended by section 6 of chapter 98-94, Laws of

15  Florida, is repealed.

16         Section 7.  In order to meet added demand for the

17  release of criminal history information created by this act,

18  the Department of Law Enforcement may file an application with

19  the Executive Office of the Governor certifying that there are

20  no authorized positions available for addition, deletion, or

21  transfer within the agency and recommending an increase in the

22  number of positions. The Administration Commission may, after

23  a public hearing, authorize an increase in the number of

24  positions in excess of the amount established by the

25  Legislature. Any request under this section is subject to the

26  notice and review procedures set forth in section 216.177,

27  Florida Statutes.

28

29  (Redesignate subsequent sections.)

30

31

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





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

 2  And the title is amended as follows:

 3         On page 1, lines 2 and 3, delete those lines

 4

 5  and insert:

 6         An act relating to the Department of Law

 7         Enforcement; creating s. 943.0543, F.S.;

 8         requiring that the department provide qualified

 9         entities that provide care, treatment, or other

10         services for children, the elderly, or

11         individuals with disabilities access to

12         criminal history information; requiring

13         compliance with certain federal laws; providing

14         for fees; providing for the disclosure of

15         criminal history records that are not exempt

16         from disclosure under the public records law;

17         requiring the department to establish a

18         database of entities qualified to obtain

19         criminal history information; providing certain

20         exemptions from liability; providing rulemaking

21         authority; creating s. 943.0543, F.S.;

22         ratifying the National Crime Prevention and

23         Privacy Compact; requiring that the executive

24         director of the department administer the

25         compact; creating s. 943.0544, F.S.;

26         authorizing the department to develop and

27         operate the Criminal Justice Network; providing

28         for the department to regulate access to the

29         network; authorizing the department to accept

30         services in lieu of fees or other charges;

31         authorizing the department to enter into

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                                                  SENATE AMENDMENT

    Bill No. HB 391

    Amendment No.    





 1         agreements with private entities for the

 2         purpose of managing and disseminating criminal

 3         justice information; providing rulemaking

 4         authority; amending ss. 943.0585, 943.059,

 5         F.S., relating to the court-ordered expunction

 6         and sealing of criminal history records;

 7         providing that references to any chapter,

 8         section, or subdivision in the section

 9         constitute a general reference under the

10         doctrine of incorporation by reference;

11         clarifying certain requirements for a petition

12         to expunge or seal a criminal history record;

13         repealing s. 943.051(5), F.S., relating to the

14         department's authority to contract with other

15         agencies and private entities for the

16         management and dissemination of criminal

17         justice information; authorizing the

18         Administration Commission to increase positions

19         within the department following notice and

20         public hearing; amending s. 943.053, F.S.;

21

22

23

24

25

26

27

28

29

30

31

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