Senate Bill sb1082
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Florida Senate - 2003 SB 1082
By Senator Smith
14-922-03
1 A bill to be entitled
2 An act relating to expunged or sealed criminal
3 history records; amending ss. 943.0585,
4 943.059, F.S.; expanding the list of offenses
5 that cannot be expunged or sealed to include
6 offenses that meet the statutory criteria of
7 sexual predator, sexual offender, and career
8 offender designation; providing an effective
9 date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Section 943.0585, Florida Statutes, is
14 amended to read:
15 943.0585 Court-ordered expunction of criminal history
16 records.--The courts of this state have jurisdiction over
17 their own procedures, including the maintenance, expunction,
18 and correction of judicial records containing criminal history
19 information to the extent such procedures are not inconsistent
20 with the conditions, responsibilities, and duties established
21 by this section. Any court of competent jurisdiction may order
22 a criminal justice agency to expunge the criminal history
23 record of a minor or an adult who complies with the
24 requirements of this section. The court shall not order a
25 criminal justice agency to expunge a criminal history record
26 until the person seeking to expunge a criminal history record
27 has applied for and received a certificate of eligibility for
28 expunction pursuant to subsection (2). A criminal history
29 record that relates to a violation of s. 787.025, chapter 794,
30 s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,
31 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
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1 893.135, or a violation enumerated in s. 907.041, or any
2 violation specified as a predicate offense requiring
3 registration as a sexual predator pursuant to s. 775.21, as a
4 sexual offender pursuant to s. 943.0435, or as a career
5 offender pursuant to s. 775.261, may not be expunged, without
6 regard to whether adjudication was withheld, if the defendant
7 was found guilty of or pled guilty or nolo contendere to the
8 offense, or if the defendant, as a minor, was found to have
9 committed, or pled guilty or nolo contendere to committing,
10 the offense as a delinquent act. The court may only order
11 expunction of a criminal history record pertaining to one
12 arrest or one incident of alleged criminal activity, except as
13 provided in this section. The court may, at its sole
14 discretion, order the expunction of a criminal history record
15 pertaining to more than one arrest if the additional arrests
16 directly relate to the original arrest. If the court intends
17 to order the expunction of records pertaining to such
18 additional arrests, such intent must be specified in the
19 order. A criminal justice agency may not expunge any record
20 pertaining to such additional arrests if the order to expunge
21 does not articulate the intention of the court to expunge a
22 record pertaining to more than one arrest. This section does
23 not prevent the court from ordering the expunction of only a
24 portion of a criminal history record pertaining to one arrest
25 or one incident of alleged criminal activity. Notwithstanding
26 any law to the contrary, a criminal justice agency may comply
27 with laws, court orders, and official requests of other
28 jurisdictions relating to expunction, correction, or
29 confidential handling of criminal history records or
30 information derived therefrom. This section does not confer
31 any right to the expunction of any criminal history record,
2
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1 and any request for expunction of a criminal history record
2 may be denied at the sole discretion of the court.
3 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY
4 RECORD.--Each petition to a court to expunge a criminal
5 history record is complete only when accompanied by:
6 (a) A certificate of eligibility for expunction issued
7 by 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
18 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, or former s. 943.058, or from any
22 jurisdiction outside the state.
23 4. Is eligible for such an expunction to the best of
24 his or her knowledge or belief and does not have any other
25 petition to expunge or any petition to seal 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.
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1 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior
2 to petitioning the court to expunge a criminal history record,
3 a person seeking to expunge a criminal history record shall
4 apply to the department for a certificate of eligibility for
5 expunction. 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 expunction. The department shall issue a certificate of
9 eligibility for expunction to a person who is the subject of a
10 criminal history record if that person:
11 (a) Has obtained, and submitted to the department, a
12 written, certified statement from the appropriate state
13 attorney or statewide prosecutor which indicates:
14 1. That an indictment, information, or other charging
15 document was not filed or issued in the case.
16 2. That an indictment, information, or other charging
17 document, if filed or issued in the case, was dismissed or
18 nolle prosequi by the state attorney or statewide prosecutor,
19 or was dismissed by a court of competent jurisdiction.
20 3. That the criminal history record does not relate to
21 a violation of s. 787.025, chapter 794, s. 796.03, s. 800.04,
22 s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133,
23 s. 847.0135, s. 847.0145, s. 893.135, or a violation
24 enumerated in s. 907.041, or any violation specified as a
25 predicate offense requiring registration as a sexual predator
26 pursuant to s. 775.21, as a sexual offender pursuant to s.
27 943.0435, or as a career offender pursuant to s. 775.261,
28 where the defendant was found guilty of, or pled guilty or
29 nolo contendere to any such offense, or that the defendant, as
30 a minor, was found to have committed, or pled guilty or nolo
31
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1 contendere to committing, such an offense as a delinquent act,
2 without regard to whether adjudication was withheld.
3 (b) Remits a $75 processing fee to the department for
4 placement in the Department of Law Enforcement Operating Trust
5 Fund, unless such fee is waived by the executive director.
6 (c) Has submitted to the department a certified copy
7 of the disposition of the charge to which the petition to
8 expunge pertains.
9 (d) Has never, prior to the date on which the
10 application for a certificate of eligibility is filed, been
11 adjudicated guilty of a criminal offense or comparable
12 ordinance violation or adjudicated delinquent for committing a
13 felony or a misdemeanor specified in s. 943.051(3)(b).
14 (e) Has not been adjudicated guilty of, or adjudicated
15 delinquent for committing, any of the acts stemming from the
16 arrest or alleged criminal activity to which the petition to
17 expunge pertains.
18 (f) Has never secured a prior sealing or expunction of
19 a criminal history record under this section, former s.
20 893.14, former s. 901.33, or former s. 943.058.
21 (g) Is no longer under court supervision applicable to
22 the disposition of the arrest or alleged criminal activity to
23 which the petition to expunge pertains.
24 (h) Is not required to wait a minimum of 10 years
25 prior to being eligible for an expunction of such records
26 because all charges related to the arrest or criminal activity
27 to which the petition to expunge pertains were dismissed prior
28 to trial, adjudication, or the withholding of adjudication.
29 Otherwise, such criminal history record must be sealed under
30 this section, former s. 893.14, former s. 901.33, or former s.
31
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1 943.058 for at least 10 years before such record is eligible
2 for expunction.
3 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
4 (a) In judicial proceedings under this section, a copy
5 of the completed petition to expunge shall be served upon the
6 appropriate state attorney or the statewide prosecutor and
7 upon the arresting agency; however, it is not necessary to
8 make any agency other than the state a party. The appropriate
9 state attorney or the statewide prosecutor and the arresting
10 agency may respond to the court regarding the completed
11 petition to expunge.
12 (b) If relief is granted by the court, the clerk of
13 the court shall certify copies of the order to the appropriate
14 state attorney or the statewide prosecutor and the arresting
15 agency. The arresting agency is responsible for forwarding the
16 order to any other agency to which the arresting agency
17 disseminated the criminal history record information to which
18 the order pertains. The department shall forward the order to
19 expunge to the Federal Bureau of Investigation. The clerk of
20 the court shall certify a copy of the order to any other
21 agency which the records of the court reflect has received the
22 criminal history record from the court.
23 (c) For an order to expunge entered by a court prior
24 to July 1, 1992, the department shall notify the appropriate
25 state attorney or statewide prosecutor of an order to expunge
26 which is contrary to law because the person who is the subject
27 of the record has previously been convicted of a crime or
28 comparable ordinance violation or has had a prior criminal
29 history record sealed or expunged. Upon receipt of such
30 notice, the appropriate state attorney or statewide prosecutor
31 shall take action, within 60 days, to correct the record and
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1 petition the court to void the order to expunge. The
2 department shall seal the record until such time as the order
3 is voided by the court.
4 (d) On or after July 1, 1992, the department or any
5 other criminal justice agency is not required to act on an
6 order to expunge entered by a court when such order does not
7 comply with the requirements of this section. Upon receipt of
8 such an order, the department must notify the issuing court,
9 the appropriate state attorney or statewide prosecutor, the
10 petitioner or the petitioner's attorney, and the arresting
11 agency of the reason for noncompliance. The appropriate state
12 attorney or statewide prosecutor shall take action within 60
13 days to correct the record and petition the court to void the
14 order. No cause of action, including contempt of court, shall
15 arise against any criminal justice agency for failure to
16 comply with an order to expunge when the petitioner for such
17 order failed to obtain the certificate of eligibility as
18 required by this section or such order does not otherwise
19 comply with the requirements of this section.
20 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
21 criminal history record of a minor or an adult which is
22 ordered expunged by a court of competent jurisdiction pursuant
23 to this section must be physically destroyed or obliterated by
24 any criminal justice agency having custody of such record;
25 except that any criminal history record in the custody of the
26 department must be retained in all cases. A criminal history
27 record ordered expunged that is retained by the department is
28 confidential and exempt from the provisions of s. 119.07(1)
29 and s. 24(a), Art. I of the State Constitution and not
30 available to any person or entity except upon order of a court
31 of competent jurisdiction. A criminal justice agency may
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1 retain a notation indicating compliance with an order to
2 expunge.
3 (a) The person who is the subject of a criminal
4 history record that is expunged under this section or under
5 other provisions of law, including former s. 893.14, former s.
6 901.33, and former s. 943.058, may lawfully deny or fail to
7 acknowledge the arrests covered by the expunged record, except
8 when the subject of the record:
9 1. Is a candidate for employment with a criminal
10 justice agency;
11 2. Is a defendant in a criminal prosecution;
12 3. Concurrently or subsequently petitions for relief
13 under this section or s. 943.059;
14 4. Is a candidate for admission to The Florida Bar;
15 5. Is seeking to be employed or licensed by or to
16 contract with the Department of Children and Family Services
17 or the Department of Juvenile Justice or to be employed or
18 used by such contractor or licensee in a sensitive position
19 having direct contact with children, the developmentally
20 disabled, the aged, or the elderly as provided in s.
21 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.
22 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
23 985.407, or chapter 400; or
24 6. Is seeking to be employed or licensed by the Office
25 of Teacher Education, Certification, Staff Development, and
26 Professional Practices of the Department of Education, any
27 district school board, or any local governmental entity that
28 licenses child care facilities.
29 (b) Subject to the exceptions in paragraph (a), a
30 person who has been granted an expunction under this section,
31 former s. 893.14, former s. 901.33, or former s. 943.058 may
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1 not be held under any provision of law of this state to commit
2 perjury or to be otherwise liable for giving a false statement
3 by reason of such person's failure to recite or acknowledge an
4 expunged criminal history record.
5 (c) Information relating to the existence of an
6 expunged criminal history record which is provided in
7 accordance with paragraph (a) is confidential and exempt from
8 the provisions of s. 119.07(1) and s. 24(a), Art. I of the
9 State Constitution, except that the department shall disclose
10 the existence of a criminal history record ordered expunged to
11 the entities set forth in subparagraphs (a)1., 4., 5., and 6.
12 for their respective licensing and employment purposes, and to
13 criminal justice agencies for their respective criminal
14 justice purposes. It is unlawful for any employee of an entity
15 set forth in subparagraph (a)1., subparagraph (a)4.,
16 subparagraph (a)5., or subparagraph (a)6. to disclose
17 information relating to the existence of an expunged criminal
18 history record of a person seeking employment or licensure
19 with such entity or contractor, except to the person to whom
20 the criminal history record relates or to persons having
21 direct responsibility for employment or licensure decisions.
22 Any person who violates this paragraph commits a misdemeanor
23 of the first degree, punishable as provided in s. 775.082 or
24 s. 775.083.
25 (5) STATUTORY REFERENCES.--Any reference to any other
26 chapter, section, or subdivision of the Florida Statutes in
27 this section constitutes a general reference under the
28 doctrine of incorporation by reference.
29 Section 2. Section 943.059, Florida Statutes, is
30 amended to read:
31
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1 943.059 Court-ordered sealing of criminal history
2 records.--The courts of this state shall continue to have
3 jurisdiction over their own procedures, including the
4 maintenance, sealing, and correction of judicial records
5 containing criminal history information to the extent such
6 procedures are not inconsistent with the conditions,
7 responsibilities, and duties established by this section. Any
8 court of competent jurisdiction may order a criminal justice
9 agency to seal the criminal history record of a minor or an
10 adult who complies with the requirements of this section. The
11 court shall not order a criminal justice agency to seal a
12 criminal history record until the person seeking to seal a
13 criminal history record has applied for and received a
14 certificate of eligibility for sealing pursuant to subsection
15 (2). A criminal history record that relates to a violation of
16 s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.
17 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
18 s. 847.0145, s. 893.135, or a violation enumerated in s.
19 907.041, or any violation specified as a predicate offense
20 requiring registration as a sexual predator pursuant to s.
21 775.21, as a sexual offender pursuant to s. 943.0435, or as a
22 career offender pursuant to s. 775.261, may not be sealed,
23 without regard to whether adjudication was withheld, if the
24 defendant was found guilty of or pled guilty or nolo
25 contendere to the offense, or if the defendant, as a minor,
26 was found to have committed or pled guilty or nolo contendere
27 to committing the offense as a delinquent act. The court may
28 only order sealing of a criminal history record pertaining to
29 one arrest or one incident of alleged criminal activity,
30 except as provided in this section. The court may, at its sole
31 discretion, order the sealing of a criminal history record
10
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1 pertaining to more than one arrest if the additional arrests
2 directly relate to the original arrest. If the court intends
3 to order the sealing of records pertaining to such additional
4 arrests, such intent must be specified in the order. A
5 criminal justice agency may not seal any record pertaining to
6 such additional arrests if the order to seal does not
7 articulate the intention of the court to seal records
8 pertaining to more than one arrest. This section does not
9 prevent the court from ordering the sealing of only a portion
10 of a criminal history record pertaining to one arrest or one
11 incident of alleged criminal activity. Notwithstanding any law
12 to the contrary, a criminal justice agency may comply with
13 laws, court orders, and official requests of other
14 jurisdictions relating to sealing, correction, or confidential
15 handling of criminal history records or information derived
16 therefrom. This section does not confer any right to the
17 sealing of any criminal history record, and any request for
18 sealing a criminal history record may be denied at the sole
19 discretion of the court.
20 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
21 petition to a court to seal a criminal history record is
22 complete only when accompanied by:
23 (a) A certificate of eligibility for sealing issued by
24 the department pursuant to subsection (2).
25 (b) The petitioner's sworn statement attesting that
26 the petitioner:
27 1. Has never, prior to the date on which the petition
28 is filed, been adjudicated guilty of a criminal offense or
29 comparable ordinance violation or adjudicated delinquent for
30 committing a felony or a misdemeanor specified in s.
31 943.051(3)(b).
11
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1 2. Has not been adjudicated guilty of or adjudicated
2 delinquent for committing any of the acts stemming from the
3 arrest or alleged criminal activity to which the petition to
4 seal pertains.
5 3. Has never secured a prior sealing or expunction of
6 a criminal history record under this section, former s.
7 893.14, former s. 901.33, former s. 943.058, or from any
8 jurisdiction outside the state.
9 4. Is eligible for such a sealing to the best of his
10 or her knowledge or belief and does not have any other
11 petition to seal or any petition to expunge pending before any
12 court.
13
14 Any person who knowingly provides false information on such
15 sworn statement to the court commits a felony of the third
16 degree, punishable as provided in s. 775.082, s. 775.083, or
17 s. 775.084.
18 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
19 petitioning the court to seal a criminal history record, a
20 person seeking to seal a criminal history record shall apply
21 to the department for a certificate of eligibility for
22 sealing. The department shall, by rule adopted pursuant to
23 chapter 120, establish procedures pertaining to the
24 application for and issuance of certificates of eligibility
25 for sealing. The department shall issue a certificate of
26 eligibility for sealing to a person who is the subject of a
27 criminal history record provided that such person:
28 (a) Has submitted to the department a certified copy
29 of the disposition of the charge to which the petition to seal
30 pertains.
31
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1 (b) Remits a $75 processing fee to the department for
2 placement in the Department of Law Enforcement Operating Trust
3 Fund, unless such fee is waived by the executive director.
4 (c) Has never, prior to the date on which the
5 application for a certificate of eligibility is filed, been
6 adjudicated guilty of a criminal offense or comparable
7 ordinance violation or adjudicated delinquent for committing a
8 felony or a misdemeanor specified in s. 943.051(3)(b).
9 (d) Has not been adjudicated guilty of or adjudicated
10 delinquent for committing any of the acts stemming from the
11 arrest or alleged criminal activity to which the petition to
12 seal pertains.
13 (e) Has never secured a prior sealing or expunction of
14 a criminal history record under this section, former s.
15 893.14, former s. 901.33, or former s. 943.058.
16 (f) Is no longer under court supervision applicable to
17 the disposition of the arrest or alleged criminal activity to
18 which the petition to seal pertains.
19 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
20 (a) In judicial proceedings under this section, a copy
21 of the completed petition to seal shall be served upon the
22 appropriate state attorney or the statewide prosecutor and
23 upon the arresting agency; however, it is not necessary to
24 make any agency other than the state a party. The appropriate
25 state attorney or the statewide prosecutor and the arresting
26 agency may respond to the court regarding the completed
27 petition to seal.
28 (b) If relief is granted by the court, the clerk of
29 the court shall certify copies of the order to the appropriate
30 state attorney or the statewide prosecutor and to the
31 arresting agency. The arresting agency is responsible for
13
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1 forwarding the order to any other agency to which the
2 arresting agency disseminated the criminal history record
3 information to which the order pertains. The department shall
4 forward the order to seal to the Federal Bureau of
5 Investigation. The clerk of the court shall certify a copy of
6 the order to any other agency which the records of the court
7 reflect has received the criminal history record from the
8 court.
9 (c) For an order to seal entered by a court prior to
10 July 1, 1992, the department shall notify the appropriate
11 state attorney or statewide prosecutor of any order to seal
12 which is contrary to law because the person who is the subject
13 of the record has previously been convicted of a crime or
14 comparable ordinance violation or has had a prior criminal
15 history record sealed or expunged. Upon receipt of such
16 notice, the appropriate state attorney or statewide prosecutor
17 shall take action, within 60 days, to correct the record and
18 petition the court to void the order to seal. The department
19 shall seal the record until such time as the order is voided
20 by the court.
21 (d) On or after July 1, 1992, the department or any
22 other criminal justice agency is not required to act on an
23 order to seal entered by a court when such order does not
24 comply with the requirements of this section. Upon receipt of
25 such an order, the department must notify the issuing court,
26 the appropriate state attorney or statewide prosecutor, the
27 petitioner or the petitioner's attorney, and the arresting
28 agency of the reason for noncompliance. The appropriate state
29 attorney or statewide prosecutor shall take action within 60
30 days to correct the record and petition the court to void the
31 order. No cause of action, including contempt of court, shall
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1 arise against any criminal justice agency for failure to
2 comply with an order to seal when the petitioner for such
3 order failed to obtain the certificate of eligibility as
4 required by this section or when such order does not comply
5 with the requirements of this section.
6 (e) An order sealing a criminal history record
7 pursuant to this section does not require that such record be
8 surrendered to the court, and such record shall continue to be
9 maintained by the department and other criminal justice
10 agencies.
11 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
12 criminal history record of a minor or an adult which is
13 ordered sealed by a court of competent jurisdiction pursuant
14 to this section is confidential and exempt from the provisions
15 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
16 and is available only to the person who is the subject of the
17 record, to the subject's attorney, to criminal justice
18 agencies for their respective criminal justice purposes, or to
19 those entities set forth in subparagraphs (a)1., 4., 5., and
20 6. for their respective licensing and employment purposes.
21 (a) The subject of a criminal history record sealed
22 under this section or under other provisions of law, including
23 former s. 893.14, former s. 901.33, and former s. 943.058, may
24 lawfully deny or fail to acknowledge the arrests covered by
25 the sealed record, except when the subject of the record:
26 1. Is a candidate for employment with a criminal
27 justice agency;
28 2. Is a defendant in a criminal prosecution;
29 3. Concurrently or subsequently petitions for relief
30 under this section or s. 943.0585;
31 4. Is a candidate for admission to The Florida Bar;
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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.
9 415.103, s. 985.407, or chapter 400; or
10 6. Is seeking to be employed or licensed by the Office
11 of Teacher Education, Certification, Staff Development, and
12 Professional Practices of the Department of Education, any
13 district school board, or any local governmental entity which
14 licenses child care facilities.
15 (b) Subject to the exceptions in paragraph (a), a
16 person who has been granted a sealing under this section,
17 former s. 893.14, former s. 901.33, or former s. 943.058 may
18 not be held under any provision of law of this state to commit
19 perjury or to be otherwise liable for giving a false statement
20 by reason of such person's failure to recite or acknowledge a
21 sealed criminal history record.
22 (c) Information relating to the existence of a sealed
23 criminal record provided in accordance with the provisions of
24 paragraph (a) is confidential and exempt from the provisions
25 of s. 119.07(1) and s. 24(a), Art. I of the State
26 Constitution, except that the department shall disclose the
27 sealed criminal history record to the entities set forth in
28 subparagraphs (a)1., 4., 5., and 6. for their respective
29 licensing and employment purposes. It is unlawful for any
30 employee of an entity set forth in subparagraph (a)1.,
31 subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
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1 to disclose information relating to the existence of a sealed
2 criminal history record of a person seeking employment or
3 licensure with such entity or contractor, except to the person
4 to whom the criminal history record relates or to persons
5 having direct responsibility for employment or licensure
6 decisions. Any person who violates the provisions of this
7 paragraph commits a misdemeanor of the first degree,
8 punishable as provided in s. 775.082 or s. 775.083.
9 (5) STATUTORY REFERENCES.--Any reference to any other
10 chapter, section, or subdivision of the Florida Statutes in
11 this section constitutes a general reference under the
12 doctrine of incorporation by reference.
13 Section 3. This act shall take effect July 1, 2003.
14
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16 SENATE SUMMARY
17 Expands the list of offenses that cannot be expunged or
sealed to include such offenses that meet the statutory
18 criteria of sexual predator, sexual offender, and career
offender designation.
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