Senate Bill 0136

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    Florida Senate - 2000                                   SB 136

    By Senator Diaz-Balart





    37-80A-00                                               See HB

  1                      A bill to be entitled

  2         An act relating to pretrial detention;

  3         providing a short title; amending s. 907.041,

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

  5         permitting the court to order pretrial

  6         detention under specified circumstances when it

  7         finds a substantial probability that a

  8         defendant committed the charged crime of DUI

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

10         relating to driving under the influence, and

11         that the defendant poses the threat of harm to

12         the community; specifying certain conditions

13         that would support a finding that the defendant

14         poses the threat of harm to the community;

15         deleting requirement for additional court

16         findings for pretrial detention; permitting

17         pretrial detention for any violation of

18         conditions of pretrial release or bond which,

19         in the discretion of the court, supports a

20         finding that no condition of release can

21         reasonably protect the community from physical

22         harm, assure the presence of the accused at

23         trial, or assure the integrity of the judicial

24         process; deleting limitation upon detention

25         period when detention is based on threat of

26         harm to the community; authorizing a court to

27         detain a defendant at a bail hearing without

28         separate hearing or motion for pretrial

29         detention; authorizing the state to orally move

30         for pretrial detention any time the defendant

31         is before the court for a bail hearing;

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1         providing for construction; reenacting s.

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

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

  4         relating to court-ordered expunction of

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

  6         relating to court-ordered sealing of criminal

  7         history records, to incorporate said amendment

  8         in references; repealing Rules 3.131 and 3.132,

  9         Florida Rules of Criminal Procedure, relating

10         to pretrial release and pretrial detention, to

11         the extent of inconsistency with the act;

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

13         cancellation of bond under certain

14         circumstances; providing an effective date.

15

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

17

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

19  Robert Smith Act."

20         Section 2.  Section 907.041, Florida Statutes, is

21  amended to read:

22         907.041  Pretrial detention and release.--

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

24  state that persons committing serious criminal offenses,

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

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

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

28  specified criteria shall be released under certain conditions

29  until proceedings are concluded and adjudication has been

30  determined. The Legislature finds that this policy of pretrial

31  detention and release will assure the detention of those

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1  persons posing a threat to society while reducing the costs

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

  3  considered a danger to the community who meet certain

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

  5  primary consideration be the protection of the community from

  6  risk of physical harm to persons.

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

  8  release determinations shall be governed by rules adopted by

  9  the Supreme Court.

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

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

12  release on nonmonetary conditions for any person who is

13  granted pretrial release.  Such person shall be released on

14  monetary conditions only if it is determined that such

15  monetary conditions are necessary to assure the presence of

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

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

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

19  of the judicial process.

20         (4)  PRETRIAL DETENTION.--

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

22  means any of the following:

23         1.  Arson;

24         2.  Aggravated assault;

25         3.  Aggravated battery;

26         4.  Illegal use of explosives;

27         5.  Child abuse or aggravated child abuse;

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

29  aggravated abuse of an elderly person or disabled adult;

30         7.  Hijacking;

31         8.  Kidnapping;

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1         9.  Homicide;

  2         10.  Manslaughter;

  3         11.  Sexual battery;

  4         12.  Robbery;

  5         13.  Carjacking;

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

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

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

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

10  solicitation of person in familial or custodial authority;

11         16.  Burglary of a dwelling;

12         17.  Stalking and aggravated stalking;

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

14  and

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

16  and home-invasion robbery.

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

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

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

20  any other relevant facts, that any of the following

21  circumstances exists:

22         1.  The defendant has previously violated conditions of

23  release and that no further conditions of release are

24  reasonably likely to assure the defendant's appearance at

25  subsequent proceedings;

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

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

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

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

30  release will reasonably prevent the obstruction of the

31  judicial process;

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1         3.  The defendant is charged with trafficking in

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

  3  a substantial probability that the defendant has committed the

  4  offense, and that no conditions of release will reasonably

  5  assure the defendant's appearance at subsequent criminal

  6  proceedings; or

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

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

  9  that the defendant committed the crime and poses a threat of

10  harm to the community. Conditions that would support a finding

11  by the court pursuant to this subparagraph poses a threat of

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

13  the 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 which 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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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  least one of the following conditions is present:

  3         a.  The defendant has previously been convicted of a

  4  crime punishable by death or life imprisonment.

  5         b.  The defendant has been convicted of a dangerous

  6  crime within the 10 years immediately preceding the date of

  7  his or her arrest for the crime presently charged.

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

  9  other release pending completion of sentence or on pretrial

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

11  offense was committed; or arrest.

12         7.  The defendant has violated one or more conditions

13  of pretrial release or bond for the offense currently before

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

15  supports a finding that no conditions of release can

16  reasonably protect the community from risk of physical harm to

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

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

19  pretrial detention could be ordered is arrested, the arresting

20  agency shall promptly notify the state attorney of the arrest

21  and shall provide the state attorney with such information as

22  the arresting agency has obtained relative to:

23         1.  The nature and circumstances of the offense

24  charged;

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

26  contents of any statements obtained from the defendant or any

27  witness;

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

29  financial condition, and mental condition; and

30

31

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  including any record of convictions, previous flight to avoid

  3  prosecution, or failure to appear at court proceedings.

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

  5  pretrial detention could be ordered is arrested, the arresting

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

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

  8  period not to exceed 24 hours.

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

10  pretrial detention hearing.  The pretrial detention hearing

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

12  attorney of a complaint to seek pretrial detention.  The

13  defendant may request a continuance.  No continuance shall be

14  for longer than 5 days unless there are extenuating

15  circumstances. The defendant may be detained pending the

16  hearing.  The state attorney shall be entitled to one

17  continuance for good cause.

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

19  need for pretrial detention.

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

21  counsel, to present witnesses and evidence, and to

22  cross-examine witnesses.  The court may admit relevant

23  evidence without complying with the rules of evidence, but

24  evidence secured in violation of the United States

25  Constitution or the Constitution of the State of Florida shall

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

27  admissible to prove guilt at any other judicial proceeding,

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

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

30  detention hearing, or for impeachment.

31

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  based solely upon evidence produced at the hearing and shall

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

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

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

  6  the pretrial detention hearing.

  7         (i)  If ordered detained pending trial pursuant to

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

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

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

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

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

13  his or her counsel.

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

15  issuance of a pretrial detention order shall have credited to

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

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

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

19  of the pretrial detention order whenever the court finds that

20  a subsequent event has eliminated the basis for detention.

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

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

23  condition precedent to detaining the defendant if the

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

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

26  pretrial detention any time a defendant is before the court

27  for a bail hearing.

28         Section 3.  For the purpose of incorporating the

29  amendment to section 907.041, Florida Statutes, in references

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

31  Florida Statutes, is reenacted to read:

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1         790.065  Sale and delivery of firearms.--

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

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

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

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

  6  whether the potential buyer or transferee has been indicted or

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

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

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

10  against domestic violence entered against the potential buyer

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

12  protection against repeat violence entered against the

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

14  arrested for a dangerous crime as specified in s.

15  907.041(4)(a) or for any of the following enumerated offenses:

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

17         b.  Extortion under s. 836.05.

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

19         d.  Controlled substances violations under chapter 893.

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

21         f.  Weapons and firearms violations under this chapter.

22         g.  Treason under s. 876.32.

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

24         i.  Sabotage under s. 876.38.

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

26

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

28  arrest, the department shall provide to the licensee a

29  conditional nonapproval number.

30         2.  Within 24 working hours, the department shall

31  determine the disposition of the indictment, information, or

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1  arrest and inform the licensee as to whether the potential

  2  buyer is prohibited from receiving or possessing a firearm.

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

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

  5  legal holidays.

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

  7  the department, shall respond to any department request for

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

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

10  working hours.

11         4.  The department shall determine as quickly as

12  possible within the allotted time period whether the potential

13  buyer is prohibited from receiving or possessing a firearm.

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

15  the department cannot determine the disposition information

16  within the allotted time period, the department shall provide

17  the licensee with a conditional approval number.

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

19  nonapproval number shall become a nonapproval number.

20         7.  The department shall continue its attempts to

21  obtain the disposition information and may retain a record of

22  all approval numbers granted without sufficient disposition

23  information.  If the department later obtains disposition

24  information which indicates:

25         a.  That the potential buyer is not prohibited from

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

27  in accordance with this section; or

28         b.  That the potential buyer is prohibited from owning

29  a firearm, it shall immediately revoke the conditional

30  approval number and notify local law enforcement.

31

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

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

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

  5  conditional nonapproval number shall remain in effect.

  6         Section 4.  For the purpose of incorporating the

  7  amendment to section 907.041, Florida Statutes, in references

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

  9  read:

10         943.0585  Court-ordered expunction of criminal history

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

12  their own procedures, including the maintenance, expunction,

13  and correction of judicial records containing criminal history

14  information to the extent such procedures are not inconsistent

15  with the conditions, responsibilities, and duties established

16  by this section.  Any court of competent jurisdiction may

17  order a criminal justice agency to expunge the criminal

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

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

20  criminal justice agency to expunge a criminal history record

21  until the person seeking to expunge a criminal history record

22  has applied for and received a certificate of eligibility for

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

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

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

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

27  without regard to whether adjudication was withheld, if the

28  defendant was found guilty of or pled guilty or nolo

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

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

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

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1  only order expunction of a criminal history record pertaining

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

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

  4  discretion, order the expunction of a criminal history record

  5  pertaining to more than one arrest if the additional arrests

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

  7  to order the expunction of records pertaining to such

  8  additional arrests, such intent must be specified in the

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

10  pertaining to such additional arrests if the order to expunge

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

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

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

14  portion of a criminal history record pertaining to one arrest

15  or one incident of alleged criminal activity.  Notwithstanding

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

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

18  jurisdictions relating to expunction, correction, or

19  confidential handling of criminal history records or

20  information derived therefrom.  This section does not confer

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

22  and any request for expunction of a criminal history record

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

24         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

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

26  history record is complete only when accompanied by:

27         (a)  A certificate of eligibility for expunction issued

28  by the department pursuant to subsection (2).

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

30  the petitioner:

31

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

  3  comparable ordinance violation or adjudicated delinquent for

  4  committing a felony or a misdemeanor specified in s.

  5  943.051(3)(b).

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

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

  8  arrest or alleged criminal activity to which the petition

  9  pertains.

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

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

12  893.14, former s. 901.33, or former s. 943.058, or from any

13  jurisdiction outside the state.

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

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

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

17  court.

18

19  Any person who knowingly provides false information on such

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

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

22  s. 775.084.

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

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

25  a person seeking to expunge a criminal history record shall

26  apply to the department for a certificate of eligibility for

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

28  chapter 120, establish procedures pertaining to the

29  application for and issuance of certificates of eligibility

30  for expunction. The department shall issue a certificate of

31

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  criminal history record if that person:

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

  4  written, certified statement from the appropriate state

  5  attorney or statewide prosecutor which indicates:

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

  7  document was not filed or issued in the case.

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

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

10  nolle prosequi by the state attorney or statewide prosecutor,

11  or was dismissed by a court of competent jurisdiction.

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

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

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

15  907.041, where the defendant was found guilty of, or pled

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

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

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

19  delinquent act, without regard to whether adjudication was

20  withheld.

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

22  placement in the Department of Law Enforcement Operating Trust

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

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

25  of the disposition of the charge to which the petition to

26  expunge pertains.

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

28  application for a certificate of eligibility is filed, been

29  adjudicated guilty of a criminal offense or comparable

30  ordinance violation or adjudicated delinquent for committing a

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

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

  3  arrest or alleged criminal activity to which the petition to

  4  expunge pertains.

  5         (f)  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.

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

  9  the disposition of the arrest or alleged criminal activity to

10  which the petition to expunge pertains.

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

12  prior to being eligible for an expunction of such records

13  because all charges related to the arrest or criminal activity

14  to which the petition to expunge pertains were dismissed prior

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

16  Otherwise, such criminal history record must be sealed under

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

18  943.058 for at least 10 years before such record is eligible

19  for expunction.

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

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

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

23  appropriate state attorney or the statewide prosecutor and

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

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

26  state attorney or the statewide prosecutor and the arresting

27  agency may respond to the court regarding the completed

28  petition to expunge.

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

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

31  state attorney or the statewide prosecutor and the arresting

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1  agency. The arresting agency is responsible for forwarding the

  2  order to any other agency to which the arresting agency

  3  disseminated the criminal history record information to which

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

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

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

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

  8  criminal history record from the court.

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

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

11  state attorney or statewide prosecutor of an order to expunge

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

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

14  comparable ordinance violation or has had a prior criminal

15  history record sealed or expunged. Upon receipt of such

16  notice, the appropriate state attorney or statewide prosecutor

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

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

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

20  is voided by the court.

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

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

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

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

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

26  the appropriate state attorney or statewide prosecutor, the

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

28  agency of the reason for noncompliance. The appropriate state

29  attorney or statewide prosecutor shall take action within 60

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

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

                                  16

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1  arise against any criminal justice agency for failure to

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

  3  order failed to obtain the certificate of eligibility as

  4  required by this section or such order does not otherwise

  5  comply with the requirements of this section.

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

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

  8  ordered expunged by a court of competent jurisdiction pursuant

  9  to this section must be physically destroyed or obliterated by

10  any criminal justice agency having custody of such record;

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

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

13  record ordered expunged that is retained by the department is

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

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

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

17  of competent jurisdiction. A criminal justice agency may

18  retain a notation indicating compliance with an order to

19  expunge.

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

21  history record that is expunged under this section or under

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

23  901.33, and former s. 943.058, may lawfully deny or fail to

24  acknowledge the arrests covered by the expunged record, except

25  when the subject of the record:

26         1.  Is a candidate for employment with a criminal

27  justice agency;

28         2.  Is a defendant in a criminal prosecution;

29         3.  Concurrently or subsequently petitions for relief

30  under this section or s. 943.059;

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

                                  17

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  contract with the Department of Children and Family Services

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

  4  used by such contractor or licensee in a sensitive position

  5  having direct contact with children, the developmentally

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

  7  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

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

  9  415.1075(4), s. 985.407, or chapter 400; or

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

11  of Teacher Education, Certification, Staff Development, and

12  Professional Practices of the Department of Education, any

13  district school board, or any local governmental entity that

14  licenses child care facilities.

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

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

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

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

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

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

21  expunged criminal history record.

22         (c)  Information relating to the existence of an

23  expunged criminal history record which is provided in

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

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

26  State Constitution, except that the department shall disclose

27  the existence of a criminal history record ordered expunged to

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

29  for their respective licensing and employment purposes, and to

30  criminal justice agencies for their respective criminal

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

                                  18

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

  3  information relating to the existence of an expunged criminal

  4  history record of a person seeking employment or licensure

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

  6  the criminal history record relates or to persons having

  7  direct responsibility for employment or licensure decisions.

  8  Any person who violates this paragraph commits a misdemeanor

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

10  s. 775.083.

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

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

13  this section constitutes a general reference under the

14  doctrine of incorporation by reference.

15         Section 5.  For the purpose of incorporating the

16  amendment to section 907.041, Florida Statutes, in references

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

18  read:

19         943.059  Court-ordered sealing of criminal history

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

21  jurisdiction over their own procedures, including the

22  maintenance, sealing, and correction of judicial records

23  containing criminal history information to the extent such

24  procedures are not inconsistent with the conditions,

25  responsibilities, and duties established by this section.  Any

26  court of competent jurisdiction may order a criminal justice

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

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

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

30  criminal history record until the person seeking to seal a

31  criminal history record has applied for and received a

                                  19

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1  certificate of eligibility for sealing pursuant to subsection

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

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

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

  5  sealed, without regard to whether adjudication was withheld,

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

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

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

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

10  only order sealing of a criminal history record pertaining to

11  one arrest or one incident of alleged criminal activity,

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

13  discretion, order the sealing of a criminal history record

14  pertaining to more than one arrest if the additional arrests

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

16  to order the sealing of records pertaining to such additional

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

18  criminal justice agency may not seal any record pertaining to

19  such additional arrests if the order to seal does not

20  articulate the intention of the court to seal records

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

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

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

24  incident of alleged criminal activity. Notwithstanding any law

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

26  laws, court orders, and official requests of other

27  jurisdictions relating to sealing, correction, or confidential

28  handling of criminal history records or information derived

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

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

31

                                  20

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  discretion of the court.

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

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

  5  complete only when accompanied by:

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

  7  the department pursuant to subsection (2).

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

  9  the petitioner:

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

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

12  comparable ordinance violation or adjudicated delinquent for

13  committing a felony or a misdemeanor specified in s.

14  943.051(3)(b).

15         2.  Has not been adjudicated guilty of or adjudicated

16  delinquent for committing any of the acts stemming from the

17  arrest or alleged criminal activity to which the petition to

18  seal pertains.

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

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

21  893.14, former s. 901.33, former s. 943.058, or from any

22  jurisdiction outside the state.

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

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

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

26  court.

27

28  Any person who knowingly provides false information on such

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

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

31  s. 775.084.

                                  21

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

  3  person seeking to seal a criminal history record shall apply

  4  to the department for a certificate of eligibility for

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

  6  chapter 120, establish procedures pertaining to the

  7  application for and issuance of certificates of eligibility

  8  for sealing.  The department shall issue a certificate of

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

10  criminal history record provided that such person:

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

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

13  pertains.

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 never, prior to the date on which the

18  application for a certificate of eligibility is filed, been

19  adjudicated guilty of a criminal offense or comparable

20  ordinance violation or adjudicated delinquent for committing a

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

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

23  delinquent for committing any of the acts stemming from the

24  arrest or alleged criminal activity to which the petition to

25  seal pertains.

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

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

28  893.14, former s. 901.33, or former s. 943.058.

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

30  the disposition of the arrest or alleged criminal activity to

31  which the petition to seal pertains.

                                  22

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

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

  4  appropriate state attorney or the statewide prosecutor and

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

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

  7  state attorney or the statewide prosecutor and the arresting

  8  agency may respond to the court regarding the completed

  9  petition to seal.

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

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

12  state attorney or the statewide prosecutor and to the

13  arresting agency. The arresting agency is responsible for

14  forwarding the order to any other agency to which the

15  arresting agency disseminated the criminal history record

16  information to which the order pertains. The department shall

17  forward the order to seal to the Federal Bureau of

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

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

20  reflect has received the criminal history record from the

21  court.

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

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

24  state attorney or statewide prosecutor of any order to seal

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

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

27  comparable ordinance violation or has had a prior criminal

28  history record sealed or expunged.  Upon receipt of such

29  notice, the appropriate state attorney or statewide prosecutor

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

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

                                  23

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  by the court.

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

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

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

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

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

  8  the appropriate state attorney or statewide prosecutor, the

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

10  agency of the reason for noncompliance. The appropriate state

11  attorney or statewide prosecutor shall take action within 60

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

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

14  arise against any criminal justice agency for failure to

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

16  order failed to obtain the certificate of eligibility as

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

18  with the requirements of this section.

19         (e)  An order sealing a criminal history record

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

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

22  maintained by the department and other criminal justice

23  agencies.

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

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

26  ordered sealed by a court of competent jurisdiction pursuant

27  to this section is confidential and exempt from the provisions

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

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

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

31  agencies for their respective criminal justice purposes, or to

                                  24

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  6. for their respective licensing and employment purposes.

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

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

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

  6  lawfully deny or fail to acknowledge the arrests covered by

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

  8         1.  Is a candidate for employment with a criminal

  9  justice agency;

10         2.  Is a defendant in a criminal prosecution;

11         3.  Concurrently or subsequently petitions for relief

12  under this section or s. 943.0585;

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

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

15  contract with the Department of Children and Family Services

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

17  used by such contractor or licensee in a sensitive position

18  having direct contact with children, the developmentally

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

20  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

21  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

22  415.103, s. 985.407, or chapter 400; or

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

24  of Teacher Education, Certification, Staff Development, and

25  Professional Practices of the Department of Education, any

26  district school board, or any local governmental entity which

27  licenses child care facilities.

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

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

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

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

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

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

  3  sealed criminal history record.

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

  5  criminal record provided in accordance with the provisions of

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

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

  8  Constitution, except that the department shall disclose the

  9  sealed criminal history record to the entities set forth in

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

11  licensing and employment purposes. It is unlawful for any

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

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

14  to disclose information relating to the existence of a sealed

15  criminal history record of a person seeking employment or

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

17  to whom the criminal history record relates or to persons

18  having direct responsibility for employment or licensure

19  decisions.  Any person who violates the provisions of this

20  paragraph commits a misdemeanor of the first degree,

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

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

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

24  this section constitutes a general reference under the

25  doctrine of incorporation by reference.

26         Section 6.  Rules 3.131 and 3.132, Florida Rules of

27  Criminal Procedure, are repealed to the extent that they are

28  inconsistent with this act.

29         Section 7.  Section 903.31, Florida Statutes, is

30  amended to read:

31         903.31  Canceling the bond.--

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




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

  2  bond have been satisfied or the forfeiture discharged or

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

  4  surety has attached a certificate of cancellation to the

  5  original bond, shall furnish an executed certificate of

  6  cancellation to the surety without cost. An adjudication of

  7  guilt or innocence of the defendant shall satisfy the

  8  conditions of the bond.  The original appearance bond shall

  9  expire 36 months after such bond has been posted for the

10  release of the defendant from custody.  This subsection does

11  not apply to cases in which a bond has been declared

12  forfeited.

13         (2)  The original appearance bond shall not be

14  construed to guarantee deferred sentences, appearance during

15  or after a presentence investigation, appearance during or

16  after appeals, conduct during or appearance after admission to

17  a pretrial intervention program, payment of fines, or

18  attendance at educational or rehabilitation facilities the

19  court otherwise provides in the judgment.  If the original

20  appearance bond has been forfeited or revoked, the bond shall

21  not be reinstated without approval from the surety on the

22  original bond.

23         (3)  In any case where no formal charges have been

24  brought against the defendant within 365 days after arrest,

25  the court shall order the bond canceled unless good cause is

26  shown by the state.

27         Section 8.  This act shall take effect October 1, 2000,

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

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

30  of each house of the Legislature.

31

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    Florida Senate - 2000                                   SB 136
    37-80A-00                                               See HB




  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3
      Revises criteria for pretrial detention. Permits the
  4    court to order pretrial detention under specified
      circumstances when it finds a substantial probability
  5    that a defendant charged with DUI manslaughter committed
      the crime and that the defendant poses the threat of harm
  6    to the community. Specifies certain conditions that would
      support the finding that the defendant poses the threat
  7    of harm to the community. Deletes a requirement for
      additional court findings for pretrial detention.
  8    Provides that a court may detain a defendant after a bail
      hearing without separate hearing or motion for pretrial
  9    detention if the court finds that no conditions of
      release can protect the community from harm or assure the
10    defendant's presence at trial. Removes limitation upon
      detention period when detention is based on threat of
11    harm to the community. Authorizes a court to detain a
      defendant at a bail hearing without separate hearing or
12    motion for pretrial detention and authorizes the state to
      orally move for pretrial detention any time the defendant
13    is before the court for a bail hearing. Reenacts various
      statutory provisions to incorporate changes made by the
14    act in references. Repeals Rules 3.131 and 3.132, Florida
      Rules of Criminal Procedure, relating to pretrial release
15    and pretrial detention, to the extent that they are
      inconsistent with the act. Provides for cancellation of
16    bond when no formal charges are brought against the
      defendant within one year after arrest.
17

18

19

20

21

22

23

24

25

26

27

28

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                                  28