HB 719

1
A bill to be entitled
2An act relating to the sealing of criminal records;
3amending s. 943.059, F.S.; providing that a prohibition
4against sealing the criminal history record of certain
5offenses does not apply if a charging document is not
6filed, if the case is dismissed, if a nolle prosequi is
7entered in the case, or if the defendant is acquitted or
8found not guilty; providing that a certificate of
9eligibility for sealing is available if the person seeking
10the certificate has never secured a prior sealing or
11expunction of a criminal history record under specified
12provisions involving an offense for which he or she was
13found guilty or pled guilty or nolo contendere; providing
14an effective date.
15
16Be It Enacted by the Legislature of the State of Florida:
17
18     Section 1.  Section 943.059, Florida Statutes, is amended
19to read:
20     943.059  Court-ordered sealing of criminal history
21records.--The courts of this state shall continue to have
22jurisdiction over their own procedures, including the
23maintenance, sealing, and correction of judicial records
24containing criminal history information to the extent the such
25procedures are not inconsistent with the conditions,
26responsibilities, and duties established by this section. Any
27court of competent jurisdiction may order a criminal justice
28agency to seal the criminal history record of a minor or an
29adult who complies with the requirements of this section. The
30court shall not order a criminal justice agency to seal a
31criminal history record until the person seeking to seal a
32criminal history record has applied for and received a
33certificate of eligibility for sealing pursuant to subsection
34(3)(2).
35     (1)  PROHIBITION ON SEALING CERTAIN RECORDS.--A criminal
36history record that relates to a violation of s. 393.135, s.
37394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s.
38817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s.
39847.0135, s. 847.0145, s. 893.135, s. 916.1075, or a violation
40enumerated in s. 907.041 may not be sealed, without regard to
41whether adjudication was withheld, if the defendant was found
42guilty of or pled guilty or nolo contendere to the offense, or
43if the defendant, as a minor, was found to have committed or
44pled guilty or nolo contendere to committing the offense as a
45delinquent act, even if the adjudication was withheld. The
46prohibition applies only to cases in which the defendant,
47including a minor, was found guilty of or pled guilty or nolo
48contendere to the offense. In all other cases involving the
49offenses enumerated in this subsection, if an indictment,
50information, or other charging document was not filed or issued,
51the criminal history record may be sealed. If a charging
52document was filed or issued in the case, the criminal history
53record may be sealed if the case was dismissed or a nolle
54prosequi was entered by the state attorney or statewide
55prosecutor, if the case was dismissed by a court of competent
56jurisdiction, or if the defendant was acquitted or found not
57guilty. The court may only order sealing of a criminal history
58record pertaining to one arrest or one incident of alleged
59criminal activity, except as provided in this section. The court
60may, at its sole discretion, order the sealing of a criminal
61history record pertaining to more than one arrest if the
62additional arrests directly relate to the original arrest. If
63the court intends to order the sealing of records pertaining to
64the such additional arrests, the such intent must be specified
65in the order. A criminal justice agency may not seal any record
66pertaining to the such additional arrests if the order to seal
67does not articulate the intention of the court to seal records
68pertaining to more than one arrest. This section does not
69prevent the court from ordering the sealing of only a portion of
70a criminal history record pertaining to one arrest or one
71incident of alleged criminal activity. Notwithstanding any law
72to the contrary, a criminal justice agency may comply with laws,
73court orders, and official requests of other jurisdictions
74relating to sealing, correction, or confidential handling of
75criminal history records or information derived therefrom. This
76section does not confer any right to the sealing of any criminal
77history record, and any request for sealing a criminal history
78record may be denied at the sole discretion of the court.
79     (2)(1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
80petition to a court to seal a criminal history record is
81complete only when accompanied by:
82     (a)  A certificate of eligibility for sealing issued by the
83department pursuant to subsection (3)(2).
84     (b)  The petitioner's sworn statement attesting that the
85petitioner:
86     1.  Has never, prior to the date on which the petition is
87filed, been adjudicated guilty of a criminal offense or
88comparable ordinance violation or adjudicated delinquent for
89committing a felony or a misdemeanor specified in s.
90943.051(3)(b).
91     2.  Has not been adjudicated guilty of or adjudicated
92delinquent for committing any of the acts stemming from the
93arrest or alleged criminal activity to which the petition to
94seal pertains.
95     3.  Except as otherwise provided in this section, has never
96secured a prior sealing or expunction of a criminal history
97record under this section, former s. 893.14, former s. 901.33,
98former s. 943.058, or from any jurisdiction outside the state.
99     4.  Is eligible for such a sealing to the best of his or
100her knowledge or belief and does not have any other petition to
101seal or any petition to expunge pending before any court.
102
103Any person who knowingly provides false information on the such
104sworn statement to the court commits a felony of the third
105degree, punishable as provided in s. 775.082, s. 775.083, or s.
106775.084.
107     (3)(2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
108petitioning the court to seal a criminal history record, a
109person seeking to seal a criminal history record shall apply to
110the department for a certificate of eligibility for sealing. The
111department shall, by rule adopted pursuant to chapter 120,
112establish procedures pertaining to the application for and
113issuance of certificates of eligibility for sealing. The
114department shall issue a certificate of eligibility for sealing
115to a person who is the subject of a criminal history record
116provided that the such person:
117     (a)  Has submitted to the department a certified copy of
118the disposition of the charge to which the petition to seal
119pertains.
120     (b)  Remits a $75 processing fee to the department for
121placement in the Department of Law Enforcement Operating Trust
122Fund, unless the such fee is waived by the executive director.
123     (c)  Has never, prior to the date on which the application
124for a certificate of eligibility is filed, been adjudicated
125guilty of a criminal offense or comparable ordinance violation
126or adjudicated delinquent for committing a felony or a
127misdemeanor specified in s. 943.051(3)(b).
128     (d)  Has not been adjudicated guilty of or adjudicated
129delinquent for committing any of the acts stemming from the
130arrest or alleged criminal activity to which the petition to
131seal pertains.
132     (e)  Has never secured a prior sealing or expunction of a
133criminal history record under this section, former s. 893.14,
134former s. 901.33, or former s. 943.058 involving an offense for
135which the defendant has been found guilty or pled guilty or nolo
136contendere.
137     (f)  Is no longer under court supervision applicable to the
138disposition of the arrest or alleged criminal activity to which
139the petition to seal pertains.
140     (4)(3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--
141     (a)  In judicial proceedings under this section, a copy of
142the completed petition to seal shall be served upon the
143appropriate state attorney or the statewide prosecutor and upon
144the arresting agency; however, it is not necessary to make any
145agency other than the state a party. The appropriate state
146attorney or the statewide prosecutor and the arresting agency
147may respond to the court regarding the completed petition to
148seal.
149     (b)  If relief is granted by the court, the clerk of the
150court shall certify copies of the order to the appropriate state
151attorney or the statewide prosecutor and to the arresting
152agency. The arresting agency is responsible for forwarding the
153order to any other agency to which the arresting agency
154disseminated the criminal history record information to which
155the order pertains. The department shall forward the order to
156seal to the Federal Bureau of Investigation. The clerk of the
157court shall certify a copy of the order to any other agency
158which the records of the court reflect has received the criminal
159history record from the court.
160     (c)  For an order to seal entered by a court prior to July
1611, 1992, the department shall notify the appropriate state
162attorney or statewide prosecutor of any order to seal which is
163contrary to law because the person who is the subject of the
164record has previously been convicted of a crime or comparable
165ordinance violation or has had a prior criminal history record
166sealed or expunged. Upon receipt of the such notice, the
167appropriate state attorney or statewide prosecutor shall take
168action, within 60 days, to correct the record and petition the
169court to void the order to seal. The department shall seal the
170record until such time as the order is voided by the court.
171     (d)  On or after July 1, 1992, the department or any other
172criminal justice agency is not required to act on an order to
173seal entered by a court when the such order does not comply with
174the requirements of this section. Upon receipt of such an order,
175the department must notify the issuing court, the appropriate
176state attorney or statewide prosecutor, the petitioner or the
177petitioner's attorney, and the arresting agency of the reason
178for noncompliance. The appropriate state attorney or statewide
179prosecutor shall take action within 60 days to correct the
180record and petition the court to void the order. No cause of
181action, including contempt of court, shall arise against any
182criminal justice agency for failure to comply with an order to
183seal when the petitioner for the such order failed to obtain the
184certificate of eligibility as required by this section or when
185the such order does not comply with the requirements of this
186section.
187     (e)  An order sealing a criminal history record pursuant to
188this section does not require that the such record be
189surrendered to the court, and the such record shall continue to
190be maintained by the department and other criminal justice
191agencies.
192     (5)(4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
193criminal history record of a minor or an adult which is ordered
194sealed by a court of competent jurisdiction pursuant to this
195section is confidential and exempt from the provisions of s.
196119.07(1) and s. 24(a), Art. I of the State Constitution and is
197available only to the person who is the subject of the record,
198to the subject's attorney, to criminal justice agencies for
199their respective criminal justice purposes, or to those entities
200set forth in subparagraphs (a)1., 4., 5., and 6. for their
201respective licensing and employment purposes.
202     (a)  The subject of a criminal history record sealed under
203this section or under other provisions of law, including former
204s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
205deny or fail to acknowledge the arrests covered by the sealed
206record, except when the subject of the record:
207     1.  Is a candidate for employment with a criminal justice
208agency;
209     2.  Is a defendant in a criminal prosecution;
210     3.  Concurrently or subsequently petitions for relief under
211this section or s. 943.0585;
212     4.  Is a candidate for admission to The Florida Bar;
213     5.  Is seeking to be employed or licensed by or to contract
214with the Department of Children and Family Services or the
215Department of Juvenile Justice or to be employed or used by the
216such contractor or licensee in a sensitive position having
217direct contact with children, the developmentally disabled, the
218aged, or the elderly as provided in s. 110.1127(3), s. 393.063,
219s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
220409.175(2)(i), s. 415.102(4), s. 415.103, s. 916.106(10) and
221(13), s. 985.407, or chapter 400; or
222     6.  Is seeking to be employed or licensed by the Department
223of Education, any district school board, any university
224laboratory school, any charter school, any private or parochial
225school, or any local governmental entity that licenses child
226care facilities.
227     (b)  Subject to the exceptions in paragraph (a), a person
228who has been granted a sealing under this section, former s.
229893.14, former s. 901.33, or former s. 943.058 may not be held
230under any provision of law of this state to commit perjury or to
231be otherwise liable for giving a false statement by reason of
232the such person's failure to recite or acknowledge a sealed
233criminal history record.
234     (c)  Information relating to the existence of a sealed
235criminal record provided in accordance with the provisions of
236paragraph (a) is confidential and exempt from the provisions of
237s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
238except that the department shall disclose the sealed criminal
239history record to the entities set forth in subparagraphs (a)1.,
2404., 5., and 6. for their respective licensing and employment
241purposes. It is unlawful for any employee of an entity set forth
242in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5.,
243or subparagraph (a)6. to disclose information relating to the
244existence of a sealed criminal history record of a person
245seeking employment or licensure with the such entity or
246contractor, except to the person to whom the criminal history
247record relates or to persons having direct responsibility for
248employment or licensure decisions. Any person who violates the
249provisions of this paragraph commits a misdemeanor of the first
250degree, punishable as provided in s. 775.082 or s. 775.083.
251     (6)(5)  STATUTORY REFERENCES.--Any reference to any other
252chapter, section, or subdivision of the Florida Statutes in this
253section constitutes a general reference under the doctrine of
254incorporation by reference.
255     Section 2.  This act shall take effect upon becoming a law.


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