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





                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Diaz-Balart moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

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

18  Robert Smith Act."

19         Section 2.  Section 907.041, Florida Statutes, is

20  amended to read:

21         907.041  Pretrial detention and release.--

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

23  state that persons committing serious criminal offenses,

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

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

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

27  specified criteria shall be released under certain conditions

28  until proceedings are concluded and adjudication has been

29  determined. The Legislature finds that this policy of pretrial

30  detention and release will assure the detention of those

31  persons posing a threat to society while reducing the costs

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





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

 2  considered a danger to the community who meet certain

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

 4  primary consideration be the protection of the community from

 5  risk of physical harm to persons.

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

 7  release determinations shall be governed by rules adopted by

 8  the Supreme Court.

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

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

11  release on nonmonetary conditions for any person who is

12  granted pretrial release.  Such person shall be released on

13  monetary conditions only if it is determined that such

14  monetary conditions are necessary to assure the presence of

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

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

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

18  of the judicial process.

19         (4)  PRETRIAL DETENTION.--

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

21  means any of the following:

22         1.  Arson;

23         2.  Aggravated assault;

24         3.  Aggravated battery;

25         4.  Illegal use of explosives;

26         5.  Child abuse or aggravated child abuse;

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

28  aggravated abuse of an elderly person or disabled adult;

29         7.  Hijacking;

30         8.  Kidnapping;

31         9.  Homicide;

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1         10.  Manslaughter;

 2         11.  Sexual battery;

 3         12.  Robbery;

 4         13.  Carjacking;

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

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

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

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

 9  solicitation of person in familial or custodial authority;

10         16.  Burglary of a dwelling;

11         17.  Stalking and aggravated stalking;

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

13  and

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

15  and home-invasion robbery.

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

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

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

19  any other relevant facts, that any of the following

20  circumstances exist:

21         1.  The defendant has previously violated conditions of

22  release and that no further conditions of release are

23  reasonably likely to assure the defendant's appearance at

24  subsequent proceedings;

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

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

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

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

29  release will reasonably prevent the obstruction of the

30  judicial process;

31         3.  The defendant is charged with trafficking in

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





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

 2  a substantial probability that the defendant has committed the

 3  offense, and that no conditions of release will reasonably

 4  assure the defendant's appearance at subsequent criminal

 5  proceedings; or

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

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

 8  probability that the defendant committed the crime and that

 9  the defendant poses a threat of harm to the community;

10  conditions that would support a finding by the court pursuant

11  to this subparagraph that the defendant poses a threat of harm

12  to the community include, but are not limited to, any of the

13  following:

14         a.  The defendant has previously been convicted of any

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

16  territory of the United States that is substantially similar

17  to any crime under s. 316.193;

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

19  license when the charged crime was committed; or

20         c.  The defendant has previously been found guilty of,

21  or has had adjudication of guilt withheld for, driving while

22  the defendant's driver's license was suspended or revoked in

23  violation of s. 322.34;

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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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 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)  Due to the dangerous or violent nature of the

19  offenses described in paragraphs (a) and (b), public funds may

20  not be used to subsidize release of a person charged with such

21  an offense.

22         (d)(c)  When a person charged with a crime for which

23  pretrial detention could be ordered is arrested, the arresting

24  agency shall promptly notify the state attorney of the arrest

25  and shall provide the state attorney with such information as

26  the arresting agency has obtained relative to:

27         1.  The nature and circumstances of the offense

28  charged;

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

30  contents of any statements obtained from the defendant or any

31  witness;

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                                                  SENATE AMENDMENT

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

 2  financial condition, and mental condition; and

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

 4  including any record of convictions, previous flight to avoid

 5  prosecution, or failure to appear at court proceedings.

 6         (e)(d)  When a person charged with a crime for which

 7  pretrial detention could be ordered is arrested, the arresting

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

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

10  period not to exceed 24 hours.

11         (f)(e)  The court shall order detention only after a

12  pretrial detention hearing.  The pretrial detention hearing

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

14  attorney of a complaint to seek pretrial detention.  The

15  defendant may request a continuance.  No continuance shall be

16  for longer than 5 days unless there are extenuating

17  circumstances. The defendant may be detained pending the

18  hearing.  The state attorney shall be entitled to one

19  continuance for good cause.

20         (g)(f)  The state attorney has the burden of showing

21  the need for pretrial detention.

22         (h)(g)  The defendant is entitled to be represented by

23  counsel, to present witnesses and evidence, and to

24  cross-examine witnesses.  The court may admit relevant

25  evidence without complying with the rules of evidence, but

26  evidence secured in violation of the United States

27  Constitution or the Constitution of the State of Florida shall

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

29  admissible to prove guilt at any other judicial proceeding,

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  detention hearing, or for impeachment.

 2         (i)(h)  The pretrial detention order of the court shall

 3  be based solely upon evidence produced at the hearing and

 4  shall contain findings of fact and conclusions of law to

 5  support it.  The order shall be made either in writing or

 6  orally on the record. The court shall render its findings

 7  within 24 hours of the pretrial detention hearing.

 8         (i)  If ordered detained pending trial pursuant to

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

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

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

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

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

14  his or her counsel.

15         (j)  A defendant convicted at trial following the

16  issuance of a pretrial detention order shall have credited to

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

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

19         (k)  The defendant shall be entitled to dissolution of

20  the pretrial detention order whenever the court finds that a

21  subsequent event has eliminated the basis for detention.

22         (l)  Nothing in this section shall be construed to

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

24  condition precedent to detaining the defendant if the

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

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

27  pretrial detention any time a defendant is before the court

28  for a bail hearing.

29         Section 3.  For the purpose of incorporating the

30  amendment to section 907.041, Florida Statutes, in references

31  thereto, the following sections or subdivisions of Florida

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 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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                                                  SENATE AMENDMENT

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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         b.  That the potential buyer is prohibited from owning

31  a firearm, it shall immediately revoke the conditional

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                                                  SENATE AMENDMENT

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 1  approval number and notify local law enforcement.

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

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

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

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

 6  conditional nonapproval number shall remain in effect.

 7         943.0585  Court-ordered expunction of criminal history

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

 9  their own procedures, including the maintenance, expunction,

10  and correction of judicial records containing criminal history

11  information to the extent such procedures are not inconsistent

12  with the conditions, responsibilities, and duties established

13  by this section.  Any court of competent jurisdiction may

14  order a criminal justice agency to expunge the criminal

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

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

17  criminal justice agency to expunge a criminal history record

18  until the person seeking to expunge a criminal history record

19  has applied for and received a certificate of eligibility for

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

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

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

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

24  without regard to whether adjudication was withheld, if the

25  defendant was found guilty of or pled guilty or nolo

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

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

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

29  only order expunction of a criminal history record pertaining

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  discretion, order the expunction of a criminal history record

 2  pertaining to more than one arrest if the additional arrests

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

 4  to order the expunction of records pertaining to such

 5  additional arrests, such intent must be specified in the

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

 7  pertaining to such additional arrests if the order to expunge

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

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

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

11  portion of a criminal history record pertaining to one arrest

12  or one incident of alleged criminal activity.  Notwithstanding

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

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

15  jurisdictions relating to expunction, correction, or

16  confidential handling of criminal history records or

17  information derived therefrom.  This section does not confer

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

19  and any request for expunction of a criminal history record

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

21         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

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

23  history record is complete only when accompanied by:

24         (a)  A certificate of eligibility for expunction issued

25  by the department pursuant to subsection (2).

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

27  the petitioner:

28         1.  Has never previously been adjudicated guilty of a

29  criminal offense or comparable ordinance violation or

30  adjudicated delinquent for committing a felony or a

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

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                                                  SENATE AMENDMENT

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 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

 4  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, or former s. 943.058, or from any

 8  jurisdiction outside the state.

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

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

11  petition to expunge or any petition to seal 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 EXPUNCTION.--Prior

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

20  a person seeking to expunge a criminal history record shall

21  apply to the department for a certificate of eligibility for

22  expunction. 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 expunction. The department shall issue a certificate of

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

27  criminal history record if that person:

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

29  written, certified statement from the appropriate state

30  attorney or statewide prosecutor which indicates:

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

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                                                  SENATE AMENDMENT

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 1  document was not filed or issued in the case.

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

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

 4  nolle prosequi by the state attorney or statewide prosecutor,

 5  or was dismissed by a court of competent jurisdiction.

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

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

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

 9  907.041, where the defendant was found guilty of, or pled

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

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

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

13  delinquent act, without regard to whether adjudication was

14  withheld.

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

16  placement in the Department of Law Enforcement Operating Trust

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

18         (c)  Has submitted to the department a certified copy

19  of the disposition of the charge to which the petition to

20  expunge pertains.

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

22  criminal offense or comparable ordinance violation or

23  adjudicated delinquent for committing a felony or a

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

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

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

27  arrest or alleged criminal activity to which the petition to

28  expunge pertains.

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

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

31  893.14, former s. 901.33, or former s. 943.058.

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

 2  the disposition of the arrest or alleged criminal activity to

 3  which the petition to expunge pertains.

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

 5  prior to being eligible for an expunction of such records

 6  because all charges related to the arrest or criminal activity

 7  to which the petition to expunge pertains were dismissed prior

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

 9  Otherwise, such criminal history record must be sealed under

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

11  943.058 for at least 10 years before such record is eligible

12  for expunction.

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

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

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

16  appropriate state attorney or the statewide prosecutor and

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

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

19  state attorney or the statewide prosecutor and the arresting

20  agency may respond to the court regarding the completed

21  petition to expunge.

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

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

24  state attorney or the statewide prosecutor and the arresting

25  agency. The arresting agency is responsible for forwarding the

26  order to any other agency to which the arresting agency

27  disseminated the criminal history record information to which

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

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

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

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

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    Amendment No.    





 1  criminal history record from the court.

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

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

 4  state attorney or statewide prosecutor of an order to expunge

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

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

 7  comparable ordinance violation or has had a prior criminal

 8  history record sealed or expunged. Upon receipt of such

 9  notice, the appropriate state attorney or statewide prosecutor

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

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

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

13  is voided by the court.

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

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

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

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

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

19  the appropriate state attorney or statewide prosecutor, the

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

21  agency of the reason for noncompliance. The appropriate state

22  attorney or statewide prosecutor shall take action within 60

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

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

25  arise against any criminal justice agency for failure to

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

27  order failed to obtain the certificate of eligibility as

28  required by this section or such order does not otherwise

29  comply with the requirements of this section.

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

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

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    Amendment No.    





 1  ordered expunged by a court of competent jurisdiction pursuant

 2  to this section must be physically destroyed or obliterated by

 3  any criminal justice agency having custody of such record;

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

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

 6  record ordered expunged that is retained by the department is

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

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

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

10  of competent jurisdiction. A criminal justice agency may

11  retain a notation indicating compliance with an order to

12  expunge.

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

14  history record that is expunged under this section or under

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

16  901.33, and former s. 943.058, may lawfully deny or fail to

17  acknowledge the arrests covered by the expunged record, except

18  when the subject of the record:

19         1.  Is a candidate for employment with a criminal

20  justice agency;

21         2.  Is a defendant in a criminal prosecution;

22         3.  Concurrently or subsequently petitions for relief

23  under this section or s. 943.059;

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

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

26  contract with the Department of Children and Family Services

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

28  used by such contractor or licensee in a sensitive position

29  having direct contact with children, the developmentally

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

31  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

                                  16
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  402.302(8), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

 2  415.1075(4), s. 985.407, or chapter 400; or

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

 4  of Teacher Education, Certification, Staff Development, and

 5  Professional Practices of the Department of Education, any

 6  district school board, or any local governmental entity that

 7  licenses child care facilities.

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

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

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

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

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

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

14  expunged criminal history record.

15         (c)  Information relating to the existence of an

16  expunged criminal history record which is provided in

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

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

19  State Constitution, except that the department shall disclose

20  the existence of a criminal history record ordered expunged to

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

22  for their respective licensing and employment purposes, and to

23  criminal justice agencies for their respective criminal

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

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

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

27  information relating to the existence of an expunged criminal

28  history record of a person seeking employment or licensure

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

30  the criminal history record relates or to persons having

31  direct responsibility for employment or licensure decisions.

                                  17
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  Any person who violates this paragraph commits a misdemeanor

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

 3  s. 775.083.

 4         943.059  Court-ordered sealing of criminal history

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

 6  jurisdiction over their own procedures, including the

 7  maintenance, sealing, and correction of judicial records

 8  containing criminal history information to the extent such

 9  procedures are not inconsistent with the conditions,

10  responsibilities, and duties established by this section.  Any

11  court of competent jurisdiction may order a criminal justice

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

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

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

15  criminal history record until the person seeking to seal a

16  criminal history record has applied for and received a

17  certificate of eligibility for sealing pursuant to subsection

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

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

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

21  sealed, without regard to whether adjudication was withheld,

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

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

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

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

26  only order sealing of a criminal history record pertaining to

27  one arrest or one incident of alleged criminal activity,

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

29  discretion, order the sealing of a criminal history record

30  pertaining to more than one arrest if the additional arrests

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

                                  18
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  to order the sealing of records pertaining to such additional

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

 3  criminal justice agency may not seal any record pertaining to

 4  such additional arrests if the order to seal does not

 5  articulate the intention of the court to seal records

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

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

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

 9  incident of alleged criminal activity. Notwithstanding any law

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

11  laws, court orders, and official requests of other

12  jurisdictions relating to sealing, correction, or confidential

13  handling of criminal history records or information derived

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

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

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

17  discretion of the court.

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

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

20  complete only when accompanied by:

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

22  the department pursuant to subsection (2).

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

24  the petitioner:

25         1.  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         2.  Has not been adjudicated guilty of or adjudicated

30  delinquent for committing any of the acts stemming from the

31  arrest or alleged criminal activity to which the petition to

                                  19
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  seal pertains.

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

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

 4  893.14, former s. 901.33, former s. 943.058, or from any

 5  jurisdiction outside the state.

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

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

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

 9  court.

10

11  Any person who knowingly provides false information on such

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

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

14  s. 775.084.

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

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

17  person seeking to seal a criminal history record shall apply

18  to the department for a certificate of eligibility for

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

20  chapter 120, establish procedures pertaining to the

21  application for and issuance of certificates of eligibility

22  for sealing.  The department shall issue a certificate of

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

24  criminal history record provided that such person:

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

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

27  pertains.

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

29  placement in the Department of Law Enforcement Operating Trust

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

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

                                  20
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  criminal offense or comparable ordinance violation or

 2  adjudicated delinquent for committing a felony or a

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

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

 5  delinquent for committing any of the acts stemming from the

 6  arrest or alleged criminal activity to which the petition to

 7  seal pertains.

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

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

10  893.14, former s. 901.33, or former s. 943.058.

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

12  the disposition of the arrest or alleged criminal activity to

13  which the petition to seal pertains.

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

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

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

17  appropriate state attorney or the statewide prosecutor and

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

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

20  state attorney or the statewide prosecutor and the arresting

21  agency may respond to the court regarding the completed

22  petition to seal.

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

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

25  state attorney or the statewide prosecutor and to the

26  arresting agency. The arresting agency is responsible for

27  forwarding the order to any other agency to which the

28  arresting agency disseminated the criminal history record

29  information to which the order pertains. The department shall

30  forward the order to seal to the Federal Bureau of

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

                                  21
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





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

 2  reflect has received the criminal history record from the

 3  court.

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

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

 6  state attorney or statewide prosecutor of any order to seal

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

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

 9  comparable ordinance violation or has had a prior criminal

10  history record sealed or expunged.  Upon receipt of such

11  notice, the appropriate state attorney or statewide prosecutor

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

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

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

15  by the court.

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

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

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

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

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

21  the appropriate state attorney or statewide prosecutor, the

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

23  agency of the reason for noncompliance. The appropriate state

24  attorney or statewide prosecutor shall take action within 60

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

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

27  arise against any criminal justice agency for failure to

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

29  order failed to obtain the certificate of eligibility as

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

31  with the requirements of this section.

                                  22
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1         (e)  An order sealing a criminal history record

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

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

 4  maintained by the department and other criminal justice

 5  agencies.

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

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

 8  ordered sealed by a court of competent jurisdiction pursuant

 9  to this section is confidential and exempt from the provisions

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

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

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

13  agencies for their respective criminal justice purposes, or to

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

15  6. for their respective licensing and employment purposes.

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

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

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

19  lawfully deny or fail to acknowledge the arrests covered by

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

21         1.  Is a candidate for employment with a criminal

22  justice agency;

23         2.  Is a defendant in a criminal prosecution;

24         3.  Concurrently or subsequently petitions for relief

25  under this section or s. 943.0585;

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

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

28  contract with the Department of Children and Family Services

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

30  used by such contractor or licensee in a sensitive position

31  having direct contact with children, the developmentally

                                  23
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





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

 2  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

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

 4  415.103, s. 985.407, or chapter 400; or

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

 6  of Teacher Education, Certification, Staff Development, and

 7  Professional Practices of the Department of Education, any

 8  district school board, or any local governmental entity which

 9  licenses child care facilities.

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

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

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

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

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

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

16  sealed criminal history record.

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

18  criminal record provided in accordance with the provisions of

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

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

21  Constitution, except that the department shall disclose the

22  sealed criminal history record to the entities set forth in

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

24  licensing and employment purposes. It is unlawful for any

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

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

27  to disclose information relating to the existence of a sealed

28  criminal history record of a person seeking employment or

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

30  to whom the criminal history record relates or to persons

31  having direct responsibility for employment or licensure

                                  24
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1  decisions.  Any person who violates the provisions of this

 2  paragraph commits a misdemeanor of the first degree,

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

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

 5  Criminal Procedure, are hereby repealed to the extent that

 6  they are inconsistent with this act.

 7         Section 5.  Section 903.31, Florida Statutes, is

 8  amended to read:

 9         903.31  Canceling the bond.--

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

11  bond have been satisfied or the forfeiture discharged or

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

13  surety has attached a certificate of cancellation to the

14  original bond, shall furnish an executed certificate of

15  cancellation to the surety without cost. An adjudication of

16  guilt or innocence of the defendant shall satisfy the

17  conditions of the bond.  The original appearance bond shall

18  not be construed to guarantee deferred sentences, appearance

19  during or after a presentence investigation, appearance during

20  or after appeals, conduct during or appearance after admission

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

22  attendance at educational or rehabilitation facilities the

23  court otherwise provides in the judgment.

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

25  brought against defendant within 365 days after arrest, the

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

27  by the state.

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

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

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

31  of each house of the Legislature.

                                  25
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    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         Delete everything before the enacting clause

 4

 5  and insert:

 6                      A bill to be entitled

 7         An act relating to pretrial detention;

 8         providing a short title; amending s. 907.041,

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

10         permitting the court to order pretrial

11         detention under specified circumstances when it

12         finds a substantial probability that a

13         defendant committed the charged crime of DUI

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

15         relating to driving under the influence, and

16         that the defendant poses the threat of harm to

17         the community; specifying certain conditions

18         that would support a finding that the defendant

19         poses the threat of harm to the community;

20         deleting requirement for additional court

21         findings for pretrial detention; permitting

22         pretrial detention for any violation of

23         conditions of pretrial release or bond which,

24         in the discretion of the court, supports a

25         finding that no condition of release can

26         reasonably protect the community from physical

27         harm, assure the presence of the accused at

28         trial, or assure the integrity of the judicial

29         process; deleting limitation upon detention

30         period when detention is based on threat of

31         harm to the community; authorizing a court to

                                  26
    4:27 PM   04/20/99                              s0748c1c-37c7y




                                                  SENATE AMENDMENT

    Bill No. CS for SB 748

    Amendment No.    





 1         detain a defendant at a bail hearing without

 2         separate hearing or motion for pretrial

 3         detention; authorizing the state to orally move

 4         for pretrial detention any time the defendant

 5         is before the court for a bail hearing;

 6         providing for construction; reenacting s.

 7         790.065(2)(c), F.S., relating to sale and

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

 9         relating to court-ordered expunction of

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

11         relating to court-ordered sealing of criminal

12         history records, to incorporate said amendment

13         in references; repealing Rules 3.131 and 3.132,

14         Florida Rules of Criminal Procedure, relating

15         to pretrial release and pretrial detention, to

16         the extent of inconsistency with the act;

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

18         cancellation of bond under certain

19         circumstances; providing an effective date.

20

21

22

23

24

25

26

27

28

29

30

31

                                  27
    4:27 PM   04/20/99                              s0748c1c-37c7y