Senate Bill 0134

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    Florida Senate - 2000                                   SB 134

    By Senator Diaz-Balart





    37-79-00

  1                      A bill to be entitled

  2         An act relating to DUI manslaughter; amending

  3         s. 907.041, F.S.; permitting the court to order

  4         pretrial detention under specified

  5         circumstances when it finds a substantial

  6         probability that a defendant committed the

  7         charged crime of DUI manslaughter as defined by

  8         s. 316.193, F.S., relating to driving under the

  9         influence, and that the defendant poses a

10         threat of harm to the community; specifying

11         certain conditions that would support a finding

12         that the defendant poses a threat of harm to

13         the community; reenacting s. 790.065(2)(c),

14         F.S.; including DUI manslaughter as an offense

15         that renders a person ineligible to obtain a

16         firearm; reenacting ss. 943.0585, 943.059 F.S.,

17         relating to court-ordered expunction and

18         sealing of criminal history records; providing

19         that the offense of DUI manslaughter may not be

20         expunged or sealed if the defendant was found

21         guilty of or pled guilty or nolo contendere to

22         the offense, regardless of adjudication;

23         providing an effective date.

24

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

26

27         Section 1.  Section 907.041, Florida Statutes, is

28  amended to read:

29         907.041  Pretrial detention and release.--

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

31  state that persons committing serious criminal offenses,

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

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

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

  4  specified criteria shall be released under certain conditions

  5  until proceedings are concluded and adjudication has been

  6  determined. The Legislature finds that this policy of pretrial

  7  detention and release will assure the detention of those

  8  persons posing a threat to society while reducing the costs

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

10  considered a danger to the community who meet certain

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

12  primary consideration be the protection of the community from

13  risk of physical harm to persons.

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

15  release determinations shall be governed by rules adopted by

16  the Supreme Court.

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

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

19  release on nonmonetary conditions for any person who is

20  granted pretrial release.  Such person shall be released on

21  monetary conditions only if it is determined that such

22  monetary conditions are necessary to assure the presence of

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

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

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

26  of the judicial process.

27         (4)  PRETRIAL DETENTION.--

28         (a)  As used in this subsection, the term "dangerous

29  crime" means any of the following:

30         1.  Arson;

31         2.  Aggravated assault;

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  1         3.  Aggravated battery;

  2         4.  Illegal use of explosives;

  3         5.  Child abuse or aggravated child abuse;

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

  5  aggravated abuse of an elderly person or disabled adult;

  6         7.  Hijacking;

  7         8.  Kidnapping;

  8         9.  Homicide;

  9         10.  Manslaughter;

10         11.  Sexual battery;

11         12.  Robbery;

12         13.  Carjacking;

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

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

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

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

17  solicitation of person in familial or custodial authority;

18         16.  Burglary of a dwelling;

19         17.  Stalking and aggravated stalking;

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

21  or and

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

23  and home-invasion robbery.

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

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

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

27  any other relevant facts, that any of the following

28  circumstances exist:

29         1.  The defendant has previously violated conditions of

30  release and that no further conditions of release are

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  1  reasonably likely to assure the defendant's appearance at

  2  subsequent proceedings.;

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

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

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

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

  7  release will reasonably prevent the obstruction of the

  8  judicial process.;

  9         3.  The defendant is charged with trafficking in

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

11  a substantial probability that the defendant has committed the

12  offense, and that no conditions of release will reasonably

13  assure the defendant's appearance at subsequent criminal

14  proceedings.; or

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

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

17  probability that the defendant committed the crime and that

18  the defendant poses the threat of harm to the community.

19  Conditions that would support a finding by the court under

20  this subparagraph that the defendant poses the threat of harm

21  to the community include, but are not limited to:

22         a.  The defendant has previously been convicted of any

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

24  the United States which is substantially similar to any crime

25  under s. 316.193;

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

27  license when the charged crime was committed; or

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

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

30  crime.

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  1         5.4.  The defendant poses the threat of harm to the

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

  3  defendant is presently charged with a dangerous crime, that

  4  there is a substantial probability that the defendant

  5  committed such crime, that the factual circumstances of the

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

  7  and that there are no conditions of release reasonably

  8  sufficient to protect the community from the risk of physical

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

10  least one of the following conditions is present:

11         a.  The defendant has previously been convicted of a

12  crime punishable by death or life imprisonment.

13         b.  The defendant has been convicted of a dangerous

14  crime within the 10 years immediately preceding the date of

15  his or her arrest for the crime presently charged.

16         c.  The defendant is on probation, parole, or other

17  release pending completion of sentence or on pretrial release

18  for a dangerous crime at the time of the current arrest.

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

20  pretrial detention could be ordered is arrested, the arresting

21  agency shall promptly notify the state attorney of the arrest

22  and shall provide the state attorney with such information as

23  the arresting agency has obtained relative to:

24         1.  The nature and circumstances of the offense

25  charged;

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

27  contents of any statements obtained from the defendant or any

28  witness;

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

30  financial condition, and mental condition; and

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

  2  including any record of convictions, previous flight to avoid

  3  prosecution, or failure to appear at court proceedings.

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

  5  pretrial detention could be ordered is arrested, the arresting

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

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

  8  period not to exceed 24 hours.

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

10  pretrial detention hearing.  The hearing shall be held within

11  5 days after of the filing by the state attorney of a

12  complaint to seek pretrial detention.  The defendant may

13  request a continuance.  A No continuance may not shall be for

14  longer than 5 days unless there are extenuating circumstances.

15  The defendant may be detained pending the hearing.  The state

16  attorney is shall be entitled to one continuance for good

17  cause.

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

19  need for pretrial detention.

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

21  counsel, to present witnesses and evidence, and to

22  cross-examine witnesses.  The court may admit relevant

23  evidence without complying with the rules of evidence, but

24  evidence secured in violation of the United States

25  Constitution or the Constitution of the State of Florida is

26  shall not be admissible.  No Testimony by the defendant is not

27  shall be admissible to prove guilt at any other judicial

28  proceeding, but such testimony may be admitted in an action

29  for perjury, based upon the defendant's statements made at the

30  pretrial detention hearing, or for impeachment.

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

  2  based solely upon evidence produced at the hearing and shall

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

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

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

  6  after of the pretrial detention hearing.

  7         (i)  If ordered detained pending trial pursuant to

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

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

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

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

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

13  his or her counsel.

14         (j)  A defendant convicted at trial following the

15  issuance of a pretrial detention order shall have credited to

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

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

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

19  of the pretrial detention order whenever the court finds that

20  a subsequent event has eliminated the basis for detention.

21         Section 2.  For the purpose of incorporating the

22  amendment to section 907.041, Florida Statutes, in references

23  thereto, paragraph (c) of subsection (2) of section 790.065,

24  Florida Statutes, is reenacted to read:

25         790.065  Sale and delivery of firearms.--

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

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

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

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

30  whether the potential buyer or transferee has been indicted or

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

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

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

  3  against domestic violence entered against the potential buyer

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

  5  protection against repeat violence entered against the

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

  7  arrested for a dangerous crime as specified in s.

  8  907.041(4)(a) or for any of the following enumerated offenses:

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

10         b.  Extortion under s. 836.05.

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

12         d.  Controlled substances violations under chapter 893.

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

14         f.  Weapons and firearms violations under this chapter.

15         g.  Treason under s. 876.32.

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

17         i.  Sabotage under s. 876.38.

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

19

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

21  arrest, the department shall provide to the licensee a

22  conditional nonapproval number.

23         2.  Within 24 working hours, the department shall

24  determine the disposition of the indictment, information, or

25  arrest and inform the licensee as to whether the potential

26  buyer is prohibited from receiving or possessing a firearm.

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

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

29  legal holidays.

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

31  the department, shall respond to any department request for

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

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

  3  working hours.

  4         4.  The department shall determine as quickly as

  5  possible within the allotted time period whether the potential

  6  buyer is prohibited from receiving or possessing a firearm.

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

  8  the department cannot determine the disposition information

  9  within the allotted time period, the department shall provide

10  the licensee with a conditional approval number.

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

12  nonapproval number shall become a nonapproval number.

13         7.  The department shall continue its attempts to

14  obtain the disposition information and may retain a record of

15  all approval numbers granted without sufficient disposition

16  information.  If the department later obtains disposition

17  information which indicates:

18         a.  That the potential buyer is not prohibited from

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

20  in accordance with this section; or

21         b.  That the potential buyer is prohibited from owning

22  a firearm, it shall immediately revoke the conditional

23  approval number and notify local law enforcement.

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

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

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

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

28  conditional nonapproval number shall remain in effect.

29         Section 3.  For the purpose of incorporating the

30  amendment to section 907.041, Florida Statutes, in references

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  1  thereto, section 943.0585, Florida Statutes, is reenacted to

  2  read:

  3         943.0585  Court-ordered expunction of criminal history

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

  5  their own procedures, including the maintenance, expunction,

  6  and correction of judicial records containing criminal history

  7  information to the extent such procedures are not inconsistent

  8  with the conditions, responsibilities, and duties established

  9  by this section.  Any court of competent jurisdiction may

10  order a criminal justice agency to expunge the criminal

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

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

13  criminal justice agency to expunge a criminal history record

14  until the person seeking to expunge a criminal history record

15  has applied for and received a certificate of eligibility for

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

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

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

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

20  without regard to whether adjudication was withheld, if the

21  defendant was found guilty of or pled guilty or nolo

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

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

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

25  only order expunction of a criminal history record pertaining

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

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

28  discretion, order the expunction of a criminal history record

29  pertaining to more than one arrest if the additional arrests

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

31  to order the expunction of records pertaining to such

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  1  additional arrests, such intent must be specified in the

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

  3  pertaining to such additional arrests if the order to expunge

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

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

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

  7  portion of a criminal history record pertaining to one arrest

  8  or one incident of alleged criminal activity.  Notwithstanding

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

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

11  jurisdictions relating to expunction, correction, or

12  confidential handling of criminal history records or

13  information derived therefrom.  This section does not confer

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

15  and any request for expunction of a criminal history record

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

17         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

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

19  history record is complete only when accompanied by:

20         (a)  A certificate of eligibility for expunction issued

21  by the department pursuant to subsection (2).

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

23  the petitioner:

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

25  is filed, been adjudicated guilty of a criminal offense or

26  comparable ordinance violation or adjudicated delinquent for

27  committing a felony or a misdemeanor specified in s.

28  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

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  1  arrest or alleged criminal activity to which the petition

  2  pertains.

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

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

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

  6  jurisdiction outside the state.

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

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

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

10  court.

11

12  Any person who knowingly provides false information on such

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

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

15  s. 775.084.

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

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

18  a person seeking to expunge a criminal history record shall

19  apply to the department for a certificate of eligibility for

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

21  chapter 120, establish procedures pertaining to the

22  application for and issuance of certificates of eligibility

23  for expunction. The department shall issue a certificate of

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

25  criminal history record if that person:

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

27  written, certified statement from the appropriate state

28  attorney or statewide prosecutor which indicates:

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

30  document was not filed or issued in the case.

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

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

  3  nolle prosequi by the state attorney or statewide prosecutor,

  4  or was dismissed by a court of competent jurisdiction.

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

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

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

  8  907.041, where the defendant was found guilty of, or pled

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

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

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

12  delinquent act, without regard to whether adjudication was

13  withheld.

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

15  placement in the Department of Law Enforcement Operating Trust

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

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

18  of the disposition of the charge to which the petition to

19  expunge pertains.

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

21  application for a certificate of eligibility is filed, been

22  adjudicated guilty of a criminal offense or comparable

23  ordinance violation or adjudicated delinquent for committing a

24  felony or a 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

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

  2  criminal history record from the court.

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

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

  5  state attorney or statewide prosecutor of an order to expunge

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

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

  8  comparable ordinance violation or has had a prior criminal

  9  history record sealed or expunged. Upon receipt of such

10  notice, the appropriate state attorney or statewide prosecutor

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

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

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

14  is voided by the court.

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

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

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

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

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

20  the appropriate state attorney or statewide prosecutor, the

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

22  agency of the reason for noncompliance. The appropriate state

23  attorney or statewide prosecutor shall take action within 60

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

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

26  arise against any criminal justice agency for failure to

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

28  order failed to obtain the certificate of eligibility as

29  required by this section or such order does not otherwise

30  comply with the requirements of this section.

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

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

  3  ordered expunged by a court of competent jurisdiction pursuant

  4  to this section must be physically destroyed or obliterated by

  5  any criminal justice agency having custody of such record;

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

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

  8  record ordered expunged that is retained by the department is

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

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

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

12  of competent jurisdiction. A criminal justice agency may

13  retain a notation indicating compliance with an order to

14  expunge.

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

16  history record that is expunged under this section or under

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

18  901.33, and former s. 943.058, may lawfully deny or fail to

19  acknowledge the arrests covered by the expunged record, except

20  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. 943.059;

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

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

  2  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

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

  4  415.1075(4), 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 that

  9  licenses child care facilities.

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

11  person who has been granted an expunction 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 an

16  expunged criminal history record.

17         (c)  Information relating to the existence of an

18  expunged criminal history record which is provided in

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

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

21  State Constitution, except that the department shall disclose

22  the existence of a criminal history record ordered expunged to

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

24  for their respective licensing and employment purposes, and to

25  criminal justice agencies for their respective criminal

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

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

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

29  information relating to the existence of an expunged criminal

30  history record of a person seeking employment or licensure

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

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  1  the criminal history record relates or to persons having

  2  direct responsibility for employment or licensure decisions.

  3  Any person who violates this paragraph commits a misdemeanor

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

  5  s. 775.083.

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

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

  8  this section constitutes a general reference under the

  9  doctrine of incorporation by reference.

10         Section 4.  For the purpose of incorporating the

11  amendment to section 907.041, Florida Statutes, in references

12  thereto, section 943.059, Florida Statutes, is reenacted to

13  read:

14         943.059  Court-ordered sealing of criminal history

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

16  jurisdiction over their own procedures, including the

17  maintenance, sealing, and correction of judicial records

18  containing criminal history information to the extent such

19  procedures are not inconsistent with the conditions,

20  responsibilities, and duties established by this section.  Any

21  court of competent jurisdiction may order a criminal justice

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

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

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

25  criminal history record until the person seeking to seal a

26  criminal history record has applied for and received a

27  certificate of eligibility for sealing pursuant to subsection

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

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

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

31  sealed, without regard to whether adjudication was withheld,

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

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

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

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

  5  only order sealing of a criminal history record pertaining to

  6  one arrest or one incident of alleged criminal activity,

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

  8  discretion, order the sealing of a criminal history record

  9  pertaining to more than one arrest if the additional arrests

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

11  to order the sealing of records pertaining to such additional

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

13  criminal justice agency may not seal any record pertaining to

14  such additional arrests if the order to seal does not

15  articulate the intention of the court to seal records

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

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

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

19  incident of alleged criminal activity. Notwithstanding any law

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

21  laws, court orders, and official requests of other

22  jurisdictions relating to sealing, correction, or confidential

23  handling of criminal history records or information derived

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

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

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

27  discretion of the court.

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

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

30  complete only when accompanied by:

31

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

  2  the department pursuant to subsection (2).

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

  4  the petitioner:

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

  6  is filed, been adjudicated guilty of a criminal offense or

  7  comparable ordinance violation or adjudicated delinquent for

  8  committing a felony or a misdemeanor specified in s.

  9  943.051(3)(b).

10         2.  Has not been adjudicated guilty of or adjudicated

11  delinquent for committing any of the acts stemming from the

12  arrest or alleged criminal activity to which the petition to

13  seal pertains.

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

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

16  893.14, former s. 901.33, former s. 943.058, or from any

17  jurisdiction outside the state.

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

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

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

21  court.

22

23  Any person who knowingly provides false information on such

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

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

26  s. 775.084.

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

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

29  person seeking to seal a criminal history record shall apply

30  to the department for a certificate of eligibility for

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

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  1  chapter 120, establish procedures pertaining to the

  2  application for and issuance of certificates of eligibility

  3  for sealing.  The department shall issue a certificate of

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

  5  criminal history record provided that such person:

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

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

  8  pertains.

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

10  placement in the Department of Law Enforcement Operating Trust

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

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

13  application for a certificate of eligibility is filed, been

14  adjudicated guilty of a criminal offense or comparable

15  ordinance violation or adjudicated delinquent for committing a

16  felony or a misdemeanor specified in s. 943.051(3)(b).

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

18  delinquent for committing any of the acts stemming from the

19  arrest or alleged criminal activity to which the petition to

20  seal pertains.

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

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

23  893.14, former s. 901.33, or former s. 943.058.

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

25  the disposition of the arrest or alleged criminal activity to

26  which the petition to seal pertains.

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

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

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

30  appropriate state attorney or the statewide prosecutor and

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

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

  2  state attorney or the statewide prosecutor and the arresting

  3  agency may respond to the court regarding the completed

  4  petition to seal.

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

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

  7  state attorney or the statewide prosecutor and to the

  8  arresting agency. The arresting agency is responsible for

  9  forwarding the order to any other agency to which the

10  arresting agency disseminated the criminal history record

11  information to which the order pertains. The department shall

12  forward the order to seal to the Federal Bureau of

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

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

15  reflect has received the criminal history record from the

16  court.

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

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

19  state attorney or statewide prosecutor of any order to seal

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

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

22  comparable ordinance violation or has had a prior criminal

23  history record sealed or expunged.  Upon receipt of such

24  notice, the appropriate state attorney or statewide prosecutor

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

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

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

28  by the court.

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

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

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

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

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

  3  the appropriate state attorney or statewide prosecutor, the

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

  5  agency of the reason for noncompliance. The appropriate state

  6  attorney or statewide prosecutor shall take action within 60

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

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

  9  arise against any criminal justice agency for failure to

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

11  order failed to obtain the certificate of eligibility as

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

13  with the requirements of this section.

14         (e)  An order sealing a criminal history record

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

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

17  maintained by the department and other criminal justice

18  agencies.

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

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

21  ordered sealed by a court of competent jurisdiction pursuant

22  to this section is confidential and exempt from the provisions

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

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

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

26  agencies for their respective criminal justice purposes, or to

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

28  6. for their respective licensing and employment purposes.

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

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

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

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  1  lawfully deny or fail to acknowledge the arrests covered by

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

  3         1.  Is a candidate for employment with a criminal

  4  justice agency;

  5         2.  Is a defendant in a criminal prosecution;

  6         3.  Concurrently or subsequently petitions for relief

  7  under this section or s. 943.0585;

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

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

10  contract with the Department of Children and Family Services

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

12  used by such contractor or licensee in a sensitive position

13  having direct contact with children, the developmentally

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

15  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

16  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

17  415.103, s. 985.407, or chapter 400; or

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

19  of Teacher Education, Certification, Staff Development, and

20  Professional Practices of the Department of Education, any

21  district school board, or any local governmental entity which

22  licenses child care facilities.

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

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

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

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

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

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

29  sealed criminal history record.

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

31  criminal record provided in accordance with the provisions of

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

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

  3  Constitution, except that the department shall disclose the

  4  sealed criminal history record to the entities set forth in

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

  6  licensing and employment purposes. It is unlawful for any

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

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

  9  to disclose information relating to the existence of a sealed

10  criminal history record of a person seeking employment or

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

12  to whom the criminal history record relates or to persons

13  having direct responsibility for employment or licensure

14  decisions.  Any person who violates the provisions of this

15  paragraph commits a misdemeanor of the first degree,

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

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

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

19  this section constitutes a general reference under the

20  doctrine of incorporation by reference.

21         Section 5.  This act shall take effect October 1, 2000.

22

23            *****************************************

24                          SENATE SUMMARY

25  Permits the court to order pretrial detention under specified
    circumstances when it finds a substantial probability that a
26  defendant charged with DUI manslaughter committed the crime
    and that the defendant poses a threat of harm to the
27  community. Specifies certain conditions that would support the
    finding that the defendant poses a threat of harm to the
28  community. Reenacts various statutory provisions to
    incorporate changes made by the act. Requires that a potential
29  buyer of a firearm who has been arrested for DUI manslaughter
    be issued a conditional nonapproval number. Provides that the
30  offense of DUI manslaughter may not be expunged or sealed if
    the defendant was found guilty of or pled guilty or nolo
31  contendere to the offense, regardless of adjudication.

                                  25