Senate Bill sb2252
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Florida Senate - 2004 SB 2252
By Senator Smith
14-337-04
1 A bill to be entitled
2 An act relating to criminal history records;
3 amending ss. 943.0585 and 943.059, F.S.;
4 prohibiting the expunction or sealing of a
5 criminal history record concerning a defendant
6 who was found guilty of, or who pled guilty or
7 nolo contendere to, the offense of voyeurism,
8 regardless of whether adjudication was
9 withheld; providing an effective 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. 810.14, s. 817.034, s. 825.1025, s.
31 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145,
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1 s. 893.135, or a violation enumerated in s. 907.041 may not be
2 expunged, without regard to whether adjudication was withheld,
3 if the defendant was found guilty of or pled guilty or nolo
4 contendere to the offense, or if the defendant, as a minor,
5 was found to have committed, or pled guilty or nolo contendere
6 to committing, the offense as a delinquent act. The court may
7 only order expunction of a criminal history record pertaining
8 to one arrest or one incident of alleged criminal activity,
9 except as provided in this section. The court may, at its sole
10 discretion, order the expunction of a criminal history record
11 pertaining to more than one arrest if the additional arrests
12 directly relate to the original arrest. If the court intends
13 to order the expunction of records pertaining to such
14 additional arrests, such intent must be specified in the
15 order. A criminal justice agency may not expunge any record
16 pertaining to such additional arrests if the order to expunge
17 does not articulate the intention of the court to expunge a
18 record pertaining to more than one arrest. This section does
19 not prevent the court from ordering the expunction of only a
20 portion of a criminal history record pertaining to one arrest
21 or one incident of alleged criminal activity. Notwithstanding
22 any law to the contrary, a criminal justice agency may comply
23 with laws, court orders, and official requests of other
24 jurisdictions relating to expunction, correction, or
25 confidential handling of criminal history records or
26 information derived therefrom. This section does not confer
27 any right to the expunction of any criminal history record,
28 and any request for expunction of a criminal history record
29 may be denied at the sole discretion of the court.
30
31
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1 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY
2 RECORD.--Each petition to a court to expunge a criminal
3 history record is complete only when accompanied by:
4 (a) A certificate of eligibility for expunction issued
5 by the department pursuant to subsection (2).
6 (b) The petitioner's sworn statement attesting that
7 the petitioner:
8 1. Has never, prior to the date on which the petition
9 is filed, been adjudicated guilty of a criminal offense or
10 comparable ordinance violation or adjudicated delinquent for
11 committing a felony or a misdemeanor specified in s.
12 943.051(3)(b).
13 2. Has not been adjudicated guilty of, or adjudicated
14 delinquent for committing, any of the acts stemming from the
15 arrest or alleged criminal activity to which the petition
16 pertains.
17 3. Has never secured a prior sealing or expunction of
18 a criminal history record under this section, former s.
19 893.14, former s. 901.33, or former s. 943.058, or from any
20 jurisdiction outside the state.
21 4. Is eligible for such an expunction to the best of
22 his or her knowledge or belief and does not have any other
23 petition to expunge or any petition to seal pending before any
24 court.
25
26 Any person who knowingly provides false information on such
27 sworn statement to the court commits a felony of the third
28 degree, punishable as provided in s. 775.082, s. 775.083, or
29 s. 775.084.
30 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior
31 to petitioning the court to expunge a criminal history record,
3
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1 a person seeking to expunge a criminal history record shall
2 apply to the department for a certificate of eligibility for
3 expunction. The department shall, by rule adopted pursuant to
4 chapter 120, establish procedures pertaining to the
5 application for and issuance of certificates of eligibility
6 for expunction. The department shall issue a certificate of
7 eligibility for expunction to a person who is the subject of a
8 criminal history record if that person:
9 (a) Has obtained, and submitted to the department, a
10 written, certified statement from the appropriate state
11 attorney or statewide prosecutor which indicates:
12 1. That an indictment, information, or other charging
13 document was not filed or issued in the case.
14 2. That an indictment, information, or other charging
15 document, if filed or issued in the case, was dismissed or
16 nolle prosequi by the state attorney or statewide prosecutor,
17 or was dismissed by a court of competent jurisdiction.
18 3. That the criminal history record does not relate to
19 a violation of s. 787.025, chapter 794, s. 796.03, s. 800.04,
20 s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839,
21 s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, or a
22 violation enumerated in s. 907.041, where the defendant was
23 found guilty of, or pled guilty or nolo contendere to any such
24 offense, or that the defendant, as a minor, was found to have
25 committed, or pled guilty or nolo contendere to committing,
26 such an offense as a delinquent act, without regard to whether
27 adjudication was withheld.
28 (b) Remits a $75 processing fee to the department for
29 placement in the Department of Law Enforcement Operating Trust
30 Fund, unless such fee is waived by the executive director.
31
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1 (c) Has submitted to the department a certified copy
2 of the disposition of the charge to which the petition to
3 expunge pertains.
4 (d) 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 (e) 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 expunge pertains.
13 (f) 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 (g) Is no longer under court supervision applicable to
17 the disposition of the arrest or alleged criminal activity to
18 which the petition to expunge pertains.
19 (h) Is not required to wait a minimum of 10 years
20 prior to being eligible for an expunction of such records
21 because all charges related to the arrest or criminal activity
22 to which the petition to expunge pertains were dismissed prior
23 to trial, adjudication, or the withholding of adjudication.
24 Otherwise, such criminal history record must be sealed under
25 this section, former s. 893.14, former s. 901.33, or former s.
26 943.058 for at least 10 years before such record is eligible
27 for expunction.
28 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
29 (a) In judicial proceedings under this section, a copy
30 of the completed petition to expunge shall be served upon the
31 appropriate state attorney or the statewide prosecutor and
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1 upon the arresting agency; however, it is not necessary to
2 make any agency other than the state a party. The appropriate
3 state attorney or the statewide prosecutor and the arresting
4 agency may respond to the court regarding the completed
5 petition to expunge.
6 (b) If relief is granted by the court, the clerk of
7 the court shall certify copies of the order to the appropriate
8 state attorney or the statewide prosecutor and the arresting
9 agency. The arresting agency is responsible for forwarding the
10 order to any other agency to which the arresting agency
11 disseminated the criminal history record information to which
12 the order pertains. The department shall forward the order to
13 expunge to the Federal Bureau of Investigation. The clerk of
14 the court shall certify a copy of the order to any other
15 agency which the records of the court reflect has received the
16 criminal history record from the court.
17 (c) For an order to expunge entered by a court prior
18 to July 1, 1992, the department shall notify the appropriate
19 state attorney or statewide prosecutor of an order to expunge
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 expunge. The
27 department shall seal the record until such time as the order
28 is voided 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 expunge 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 expunge when the petitioner for such
11 order failed to obtain the certificate of eligibility as
12 required by this section or such order does not otherwise
13 comply with the requirements of this section.
14 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
15 criminal history record of a minor or an adult which is
16 ordered expunged by a court of competent jurisdiction pursuant
17 to this section must be physically destroyed or obliterated by
18 any criminal justice agency having custody of such record;
19 except that any criminal history record in the custody of the
20 department must be retained in all cases. A criminal history
21 record ordered expunged that is retained by the department is
22 confidential and exempt from the provisions of s. 119.07(1)
23 and s. 24(a), Art. I of the State Constitution and not
24 available to any person or entity except upon order of a court
25 of competent jurisdiction. A criminal justice agency may
26 retain a notation indicating compliance with an order to
27 expunge.
28 (a) The person who is the subject of a criminal
29 history record that is expunged under this section or under
30 other provisions of law, including former s. 893.14, former s.
31 901.33, and former s. 943.058, may lawfully deny or fail to
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1 acknowledge the arrests covered by the expunged record, except
2 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. 943.059;
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.
17 985.407, 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 that
22 licenses child care facilities.
23 (b) Subject to the exceptions in paragraph (a), a
24 person who has been granted an expunction 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 an
29 expunged criminal history record.
30 (c) Information relating to the existence of an
31 expunged criminal history record which is provided in
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1 accordance with paragraph (a) is confidential and exempt from
2 the provisions of s. 119.07(1) and s. 24(a), Art. I of the
3 State Constitution, except that the department shall disclose
4 the existence of a criminal history record ordered expunged to
5 the entities set forth in subparagraphs (a)1., 4., 5., and 6.
6 for their respective licensing and employment purposes, and to
7 criminal justice agencies for their respective criminal
8 justice purposes. It is unlawful for any employee of an entity
9 set forth in subparagraph (a)1., subparagraph (a)4.,
10 subparagraph (a)5., or subparagraph (a)6. to disclose
11 information relating to the existence of an expunged criminal
12 history record of a person seeking employment or licensure
13 with such entity or contractor, except to the person to whom
14 the criminal history record relates or to persons having
15 direct responsibility for employment or licensure decisions.
16 Any person who violates this paragraph commits a misdemeanor
17 of the first degree, punishable as provided in s. 775.082 or
18 s. 775.083.
19 (5) STATUTORY REFERENCES.--Any reference to any other
20 chapter, section, or subdivision of the Florida Statutes in
21 this section constitutes a general reference under the
22 doctrine of incorporation by reference.
23 Section 2. Section 943.059, Florida Statutes, is
24 amended to read:
25 943.059 Court-ordered sealing of criminal history
26 records.--The courts of this state shall continue to have
27 jurisdiction over their own procedures, including the
28 maintenance, sealing, and correction of judicial records
29 containing criminal history information to the extent such
30 procedures are not inconsistent with the conditions,
31 responsibilities, and duties established by this section. Any
9
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1 court of competent jurisdiction may order a criminal justice
2 agency to seal the criminal history record of a minor or an
3 adult who complies with the requirements of this section. The
4 court shall not order a criminal justice agency to seal a
5 criminal history record until the person seeking to seal a
6 criminal history record has applied for and received a
7 certificate of eligibility for sealing pursuant to subsection
8 (2). A criminal history record that relates to a violation of
9 s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 810.14, s.
10 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s.
11 847.0135, s. 847.0145, s. 893.135, or a violation enumerated
12 in s. 907.041 may not be sealed, without regard to whether
13 adjudication was withheld, if the defendant was found guilty
14 of or pled guilty or nolo contendere to the offense, or if the
15 defendant, as a minor, was found to have committed or pled
16 guilty or nolo contendere to committing the offense as a
17 delinquent act. The court may only order sealing of a criminal
18 history record pertaining to one arrest or one incident of
19 alleged criminal activity, except as provided in this section.
20 The court may, at its sole discretion, order the sealing of a
21 criminal history record pertaining to more than one arrest if
22 the additional arrests directly relate to the original arrest.
23 If the court intends to order the sealing of records
24 pertaining to such additional arrests, such intent must be
25 specified in the order. A criminal justice agency may not seal
26 any record pertaining to such additional arrests if the order
27 to seal does not articulate the intention of the court to seal
28 records pertaining to more than one arrest. This section does
29 not prevent the court from ordering the sealing of only a
30 portion of a criminal history record pertaining to one arrest
31 or one incident of alleged criminal activity. Notwithstanding
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1 any law to the contrary, a criminal justice agency may comply
2 with laws, court orders, and official requests of other
3 jurisdictions relating to sealing, correction, or confidential
4 handling of criminal history records or information derived
5 therefrom. This section does not confer any right to the
6 sealing of any criminal history record, and any request for
7 sealing a criminal history record may be denied at the sole
8 discretion of the court.
9 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
10 petition to a court to seal a criminal history record is
11 complete only when accompanied by:
12 (a) A certificate of eligibility for sealing issued by
13 the department pursuant to subsection (2).
14 (b) The petitioner's sworn statement attesting that
15 the petitioner:
16 1. Has never, prior to the date on which the petition
17 is filed, been adjudicated guilty of a criminal offense or
18 comparable ordinance violation or adjudicated delinquent for
19 committing a felony or a misdemeanor specified in s.
20 943.051(3)(b).
21 2. Has not been adjudicated guilty of or adjudicated
22 delinquent for committing any of the acts stemming from the
23 arrest or alleged criminal activity to which the petition to
24 seal pertains.
25 3. Has never secured a prior sealing or expunction of
26 a criminal history record under this section, former s.
27 893.14, former s. 901.33, former s. 943.058, or from any
28 jurisdiction outside the state.
29 4. Is eligible for such a sealing to the best of his
30 or her knowledge or belief and does not have any other
31
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1 petition to seal or any petition to expunge pending before any
2 court.
3
4 Any person who knowingly provides false information on such
5 sworn statement to the court commits a felony of the third
6 degree, punishable as provided in s. 775.082, s. 775.083, or
7 s. 775.084.
8 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
9 petitioning the court to seal a criminal history record, a
10 person seeking to seal a criminal history record shall apply
11 to the department for a certificate of eligibility for
12 sealing. The department shall, by rule adopted pursuant to
13 chapter 120, establish procedures pertaining to the
14 application for and issuance of certificates of eligibility
15 for sealing. The department shall issue a certificate of
16 eligibility for sealing to a person who is the subject of a
17 criminal history record provided that such person:
18 (a) Has submitted to the department a certified copy
19 of the disposition of the charge to which the petition to seal
20 pertains.
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 never, prior to the date on which the
25 application for a certificate of eligibility is filed, been
26 adjudicated guilty of a criminal offense or comparable
27 ordinance violation or adjudicated delinquent for committing a
28 felony or a misdemeanor specified in s. 943.051(3)(b).
29 (d) 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 to
2 seal pertains.
3 (e) 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.
6 (f) Is no longer under court supervision applicable to
7 the disposition of the arrest or alleged criminal activity to
8 which the petition to seal pertains.
9 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
10 (a) In judicial proceedings under this section, a copy
11 of the completed petition to seal shall be served upon the
12 appropriate state attorney or the statewide prosecutor and
13 upon the arresting agency; however, it is not necessary to
14 make any agency other than the state a party. The appropriate
15 state attorney or the statewide prosecutor and the arresting
16 agency may respond to the court regarding the completed
17 petition to seal.
18 (b) If relief is granted by the court, the clerk of
19 the court shall certify copies of the order to the appropriate
20 state attorney or the statewide prosecutor and to the
21 arresting agency. The arresting agency is responsible for
22 forwarding the order to any other agency to which the
23 arresting agency disseminated the criminal history record
24 information to which the order pertains. The department shall
25 forward the order to seal to the Federal Bureau of
26 Investigation. The clerk of the court shall certify a copy of
27 the order to any other agency which the records of the court
28 reflect has received the criminal history record from the
29 court.
30 (c) For an order to seal entered by a court prior to
31 July 1, 1992, the department shall notify the appropriate
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1 state attorney or statewide prosecutor of any order to seal
2 which is contrary to law because the person who is the subject
3 of the record has previously been convicted of a crime or
4 comparable ordinance violation or has had a prior criminal
5 history record sealed or expunged. Upon receipt of such
6 notice, the appropriate state attorney or statewide prosecutor
7 shall take action, within 60 days, to correct the record and
8 petition the court to void the order to seal. The department
9 shall seal the record until such time as the order is voided
10 by the court.
11 (d) On or after July 1, 1992, the department or any
12 other criminal justice agency is not required to act on an
13 order to seal entered by a court when such order does not
14 comply with the requirements of this section. Upon receipt of
15 such an order, the department must notify the issuing court,
16 the appropriate state attorney or statewide prosecutor, the
17 petitioner or the petitioner's attorney, and the arresting
18 agency of the reason for noncompliance. The appropriate state
19 attorney or statewide prosecutor shall take action within 60
20 days to correct the record and petition the court to void the
21 order. No cause of action, including contempt of court, shall
22 arise against any criminal justice agency for failure to
23 comply with an order to seal when the petitioner for such
24 order failed to obtain the certificate of eligibility as
25 required by this section or when such order does not comply
26 with the requirements of this section.
27 (e) An order sealing a criminal history record
28 pursuant to this section does not require that such record be
29 surrendered to the court, and such record shall continue to be
30 maintained by the department and other criminal justice
31 agencies.
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1 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
2 criminal history record of a minor or an adult which is
3 ordered sealed by a court of competent jurisdiction pursuant
4 to this section is confidential and exempt from the provisions
5 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
6 and is available only to the person who is the subject of the
7 record, to the subject's attorney, to criminal justice
8 agencies for their respective criminal justice purposes, or to
9 those entities set forth in subparagraphs (a)1., 4., 5., and
10 6. for their respective licensing and employment purposes.
11 (a) The subject of a criminal history record sealed
12 under this section or under other provisions of law, including
13 former s. 893.14, former s. 901.33, and former s. 943.058, may
14 lawfully deny or fail to acknowledge the arrests covered by
15 the sealed record, except when the subject of the record:
16 1. Is a candidate for employment with a criminal
17 justice agency;
18 2. Is a defendant in a criminal prosecution;
19 3. Concurrently or subsequently petitions for relief
20 under this section or s. 943.0585;
21 4. Is a candidate for admission to The Florida Bar;
22 5. Is seeking to be employed or licensed by or to
23 contract with the Department of Children and Family Services
24 or the Department of Juvenile Justice or to be employed or
25 used by such contractor or licensee in a sensitive position
26 having direct contact with children, the developmentally
27 disabled, the aged, or the elderly as provided in s.
28 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.
29 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
30 415.103, s. 985.407, or chapter 400; or
31
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1 6. Is seeking to be employed or licensed by the Office
2 of Teacher Education, Certification, Staff Development, and
3 Professional Practices of the Department of Education, any
4 district school board, or any local governmental entity which
5 licenses child care facilities.
6 (b) Subject to the exceptions in paragraph (a), a
7 person who has been granted a sealing under this section,
8 former s. 893.14, former s. 901.33, or former s. 943.058 may
9 not be held under any provision of law of this state to commit
10 perjury or to be otherwise liable for giving a false statement
11 by reason of such person's failure to recite or acknowledge a
12 sealed criminal history record.
13 (c) Information relating to the existence of a sealed
14 criminal record provided in accordance with the provisions of
15 paragraph (a) is confidential and exempt from the provisions
16 of s. 119.07(1) and s. 24(a), Art. I of the State
17 Constitution, except that the department shall disclose the
18 sealed criminal history record to the entities set forth in
19 subparagraphs (a)1., 4., 5., and 6. for their respective
20 licensing and employment purposes. It is unlawful for any
21 employee of an entity set forth in subparagraph (a)1.,
22 subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
23 to disclose information relating to the existence of a sealed
24 criminal history record of a person seeking employment or
25 licensure with such entity or contractor, except to the person
26 to whom the criminal history record relates or to persons
27 having direct responsibility for employment or licensure
28 decisions. Any person who violates the provisions of this
29 paragraph commits a misdemeanor of the first degree,
30 punishable as provided in s. 775.082 or s. 775.083.
31
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1 (5) STATUTORY REFERENCES.--Any reference to any other
2 chapter, section, or subdivision of the Florida Statutes in
3 this section constitutes a general reference under the
4 doctrine of incorporation by reference.
5 Section 3. This act shall take effect July 1, 2004.
6
7 *****************************************
8 SENATE SUMMARY
9 Prohibits expunging or sealing a criminal history record
concerning a defendant who was found guilty of, or who
10 pled guilty or nolo contendere to, the offense of
voyeurism, regardless of whether adjudication was
11 withheld.
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