HB 0719CS

CHAMBER ACTION



1The Criminal Justice Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to the sealing and expunction of criminal
7records; amending s. 943.0585, F.S.; clarifying that a
8criminal record that relates to certain offenses may not
9be expunged, regardless of whether adjudication was
10withheld, if the defendant was found guilty of or pled
11guilty or nolo contendere to the offense; amending s.
12943.059, F.S.; clarifying that a criminal record that
13relates to certain offenses may not be sealed, regardless
14of whether adjudication was withheld, if the defendant was
15found guilty of or pled guilty or nolo contendere to the
16offense; providing that a certificate of eligibility for
17sealing is available if the person seeking the certificate
18has never secured a prior sealing or expunction of a
19criminal history record under specified provisions
20involving an offense for which he or she was found guilty
21or pled guilty or nolo contendere; providing an effective
22date.
23
24Be It Enacted by the Legislature of the State of Florida:
25
26     Section 1.  Section 943.0585, Florida Statutes, is amended
27to read:
28     943.0585  Court-ordered expunction of criminal history
29records.--The courts of this state have jurisdiction over their
30own procedures, including the maintenance, expunction, and
31correction of judicial records containing criminal history
32information to the extent the such procedures are not
33inconsistent with the conditions, responsibilities, and duties
34established by this section. Any court of competent jurisdiction
35may order a criminal justice agency to expunge the criminal
36history record of a minor or an adult who complies with the
37requirements of this section. The court shall not order a
38criminal justice agency to expunge a criminal history record
39until the person seeking to expunge a criminal history record
40has applied for and received a certificate of eligibility for
41expunction pursuant to subsection (2). A criminal history record
42that relates to a violation of s. 393.135, s. 394.4593, s.
43787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.
44825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s.
45847.0145, s. 893.135, s. 916.1075, or a violation enumerated in
46s. 907.041 may not be expunged, if eligible under subsections
47(1) and (2). If, without regard to whether adjudication was
48withheld, if the defendant was found guilty of or pled guilty or
49nolo contendere to the offense, or if the defendant, as a minor,
50was found to have committed, or pled guilty or nolo contendere
51to committing, the offense as a delinquent act, a record that
52relates to any of the violations specified above may not be
53sealed or expunged. The court may only order expunction of a
54criminal history record pertaining to one arrest or one incident
55of alleged criminal activity, except as provided in this
56section. The court may, at its sole discretion, order the
57expunction of a criminal history record pertaining to more than
58one arrest if the additional arrests directly relate to the
59original arrest. If the court intends to order the expunction of
60records pertaining to the such additional arrests, the such
61intent must be specified in the order. A criminal justice agency
62may not expunge any record pertaining to the such additional
63arrests if the order to expunge does not articulate the
64intention of the court to expunge a record pertaining to more
65than one arrest. This section does not prevent the court from
66ordering the expunction of only a portion of a criminal history
67record pertaining to one arrest or one incident of alleged
68criminal activity. Notwithstanding any law to the contrary, a
69criminal justice agency may comply with laws, court orders, and
70official requests of other jurisdictions relating to expunction,
71correction, or confidential handling of criminal history records
72or information derived therefrom. This section does not confer
73any right to the expunction of any criminal history record, and
74any request for expunction of a criminal history record may be
75denied at the sole discretion of the court.
76     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each
77petition to a court to expunge a criminal history record is
78complete only when accompanied by:
79     (a)  A certificate of eligibility for expunction issued by
80the department pursuant to subsection (2).
81     (b)  The petitioner's sworn statement attesting that the
82petitioner:
83     1.  Has never, prior to the date on which the petition is
84filed, been adjudicated guilty of a criminal offense or
85comparable ordinance violation or adjudicated delinquent for
86committing a felony or a misdemeanor specified in s.
87943.051(3)(b).
88     2.  Has not been adjudicated guilty of, or adjudicated
89delinquent for committing, any of the acts stemming from the
90arrest or alleged criminal activity to which the petition
91pertains.
92     3.  Has never secured a prior sealing or expunction of a
93criminal history record under this section, former s. 893.14,
94former s. 901.33, or former s. 943.058, or from any jurisdiction
95outside the state.
96     4.  Is eligible for such an expunction to the best of his
97or her knowledge or belief and does not have any other petition
98to expunge or any petition to seal pending before any court.
99
100Any person who knowingly provides false information on the such
101sworn statement to the court commits a felony of the third
102degree, punishable as provided in s. 775.082, s. 775.083, or s.
103775.084.
104     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to
105petitioning the court to expunge a criminal history record, a
106person seeking to expunge a criminal history record shall apply
107to the department for a certificate of eligibility for
108expunction. The department shall, by rule adopted pursuant to
109chapter 120, establish procedures pertaining to the application
110for and issuance of certificates of eligibility for expunction.
111The department shall issue a certificate of eligibility for
112expunction to a person who is the subject of a criminal history
113record if that person:
114     (a)  Has obtained, and submitted to the department, a
115written, certified statement from the appropriate state attorney
116or statewide prosecutor which indicates:
117     1.  That an indictment, information, or other charging
118document was not filed or issued in the case.
119     2.  That an indictment, information, or other charging
120document, if filed or issued in the case, was dismissed or nolle
121prosequi by the state attorney or statewide prosecutor, or was
122dismissed by a court of competent jurisdiction.
123     3.  That the criminal history record does not relate to a
124violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
125s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,
126chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135,
127s. 916.1075, or a violation enumerated in s. 907.041, where the
128defendant was found guilty of, or pled guilty or nolo contendere
129to any such offense, or that the defendant, as a minor, was
130found to have committed, or pled guilty or nolo contendere to
131committing, such an offense as a delinquent act, without regard
132to whether adjudication was withheld.
133     (b)  Remits a $75 processing fee to the department for
134placement in the Department of Law Enforcement Operating Trust
135Fund, unless the such fee is waived by the executive director.
136     (c)  Has submitted to the department a certified copy of
137the disposition of the charge to which the petition to expunge
138pertains.
139     (d)  Has never, prior to the date on which the application
140for a certificate of eligibility is filed, been adjudicated
141guilty of a criminal offense or comparable ordinance violation
142or adjudicated delinquent for committing a felony or a
143misdemeanor specified in s. 943.051(3)(b).
144     (e)  Has not been adjudicated guilty of, or adjudicated
145delinquent for committing, any of the acts stemming from the
146arrest or alleged criminal activity to which the petition to
147expunge pertains.
148     (f)  Has never secured a prior sealing or expunction of a
149criminal history record under this section, former s. 893.14,
150former s. 901.33, or former s. 943.058.
151     (g)  Is no longer under court supervision applicable to the
152disposition of the arrest or alleged criminal activity to which
153the petition to expunge pertains.
154     (h)  Is not required to wait a minimum of 10 years prior to
155being eligible for an expunction of such records because all
156charges related to the arrest or criminal activity to which the
157petition to expunge pertains were dismissed prior to trial,
158adjudication, or the withholding of adjudication. Otherwise,
159such criminal history record must be sealed under this section,
160former s. 893.14, former s. 901.33, or former s. 943.058 for at
161least 10 years before the such record is eligible for
162expunction.
163     (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
164     (a)  In judicial proceedings under this section, a copy of
165the completed petition to expunge shall be served upon the
166appropriate state attorney or the statewide prosecutor and upon
167the arresting agency; however, it is not necessary to make any
168agency other than the state a party. The appropriate state
169attorney or the statewide prosecutor and the arresting agency
170may respond to the court regarding the completed petition to
171expunge.
172     (b)  If relief is granted by the court, the clerk of the
173court shall certify copies of the order to the appropriate state
174attorney or the statewide prosecutor and the arresting agency.
175The arresting agency is responsible for forwarding the order to
176any other agency to which the arresting agency disseminated the
177criminal history record information to which the order pertains.
178The department shall forward the order to expunge to the Federal
179Bureau of Investigation. The clerk of the court shall certify a
180copy of the order to any other agency which the records of the
181court reflect has received the criminal history record from the
182court.
183     (c)  For an order to expunge entered by a court prior to
184July 1, 1992, the department shall notify the appropriate state
185attorney or statewide prosecutor of an order to expunge which is
186contrary to law because the person who is the subject of the
187record has previously been convicted of a crime or comparable
188ordinance violation or has had a prior criminal history record
189sealed or expunged. Upon receipt of the such notice, the
190appropriate state attorney or statewide prosecutor shall take
191action, within 60 days, to correct the record and petition the
192court to void the order to expunge. The department shall seal
193the record until such time as the order is voided by the court.
194     (d)  On or after July 1, 1992, the department or any other
195criminal justice agency is not required to act on an order to
196expunge entered by a court when the such order does not comply
197with the requirements of this section. Upon receipt of such an
198order, the department must notify the issuing court, the
199appropriate state attorney or statewide prosecutor, the
200petitioner or the petitioner's attorney, and the arresting
201agency of the reason for noncompliance. The appropriate state
202attorney or statewide prosecutor shall take action within 60
203days to correct the record and petition the court to void the
204order. No cause of action, including contempt of court, shall
205arise against any criminal justice agency for failure to comply
206with an order to expunge when the petitioner for the such order
207failed to obtain the certificate of eligibility as required by
208this section or the such order does not otherwise comply with
209the requirements of this section.
210     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
211criminal history record of a minor or an adult which is ordered
212expunged by a court of competent jurisdiction pursuant to this
213section must be physically destroyed or obliterated by any
214criminal justice agency having custody of the such record;
215except that any criminal history record in the custody of the
216department must be retained in all cases. A criminal history
217record ordered expunged that is retained by the department is
218confidential and exempt from the provisions of s. 119.07(1) and
219s. 24(a), Art. I of the State Constitution and not available to
220any person or entity except upon order of a court of competent
221jurisdiction. A criminal justice agency may retain a notation
222indicating compliance with an order to expunge.
223     (a)  The person who is the subject of a criminal history
224record that is expunged under this section or under other
225provisions of law, including former s. 893.14, former s. 901.33,
226and former s. 943.058, may lawfully deny or fail to acknowledge
227the arrests covered by the expunged record, except when the
228subject of the record:
229     1.  Is a candidate for employment with a criminal justice
230agency;
231     2.  Is a defendant in a criminal prosecution;
232     3.  Concurrently or subsequently petitions for relief under
233this section or s. 943.059;
234     4.  Is a candidate for admission to The Florida Bar;
235     5.  Is seeking to be employed or licensed by or to contract
236with the Department of Children and Family Services or the
237Department of Juvenile Justice or to be employed or used by the
238such contractor or licensee in a sensitive position having
239direct contact with children, the developmentally disabled, the
240aged, or the elderly as provided in s. 110.1127(3), s. 393.063,
241s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
242409.175(2)(i), s. 415.102(4), s. 916.106(10) and (13), s.
243985.407, or chapter 400; or
244     6.  Is seeking to be employed or licensed by the Department
245of Education, any district school board, any university
246laboratory school, any charter school, any private or parochial
247school, or any local governmental entity that licenses child
248care facilities.
249     (b)  Subject to the exceptions in paragraph (a), a person
250who has been granted an expunction under this section, former s.
251893.14, former s. 901.33, or former s. 943.058 may not be held
252under any provision of law of this state to commit perjury or to
253be otherwise liable for giving a false statement by reason of
254the such person's failure to recite or acknowledge an expunged
255criminal history record.
256     (c)  Information relating to the existence of an expunged
257criminal history record which is provided in accordance with
258paragraph (a) is confidential and exempt from the provisions of
259s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
260except that the department shall disclose the existence of a
261criminal history record ordered expunged to the entities set
262forth in subparagraphs (a)1., 4., 5., and 6. for their
263respective licensing and employment purposes, and to criminal
264justice agencies for their respective criminal justice purposes.
265It is unlawful for any employee of an entity set forth in
266subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., or
267subparagraph (a)6. to disclose information relating to the
268existence of an expunged criminal history record of a person
269seeking employment or licensure with the such entity or
270contractor, except to the person to whom the criminal history
271record relates or to persons having direct responsibility for
272employment or licensure decisions. Any person who violates this
273paragraph commits a misdemeanor of the first degree, punishable
274as provided in s. 775.082 or s. 775.083.
275     (5)  STATUTORY REFERENCES.--Any reference to any other
276chapter, section, or subdivision of the Florida Statutes in this
277section constitutes a general reference under the doctrine of
278incorporation by reference.
279     Section 2.  Section 943.059, Florida Statutes, is amended
280to read:
281     943.059  Court-ordered sealing of criminal history
282records.--The courts of this state shall continue to have
283jurisdiction over their own procedures, including the
284maintenance, sealing, and correction of judicial records
285containing criminal history information to the extent the such
286procedures are not inconsistent with the conditions,
287responsibilities, and duties established by this section. Any
288court of competent jurisdiction may order a criminal justice
289agency to seal the criminal history record of a minor or an
290adult who complies with the requirements of this section. The
291court shall not order a criminal justice agency to seal a
292criminal history record until the person seeking to seal a
293criminal history record has applied for and received a
294certificate of eligibility for sealing pursuant to subsection
295(2). A criminal history record that relates to a violation of s.
296393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
297800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.
298847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, or
299a violation enumerated in s. 907.041 may not be sealed, if
300eligible under subsections (1) and (2), unless, without regard
301to whether adjudication was withheld, if the defendant was found
302guilty of or pled guilty or nolo contendere to the offense, or
303if the defendant, as a minor, was found to have committed or
304pled guilty or nolo contendere to committing the offense as a
305delinquent act. If the defendant was found guilty of or pled
306guilty or nolo contendere to the offense, or if the defendant,
307as a minor, was found to have committed or pled guilty or nolo
308contendere to committing the offense as a delinquent act, a
309record that relates to any of the violations specified above may
310not be sealed, without regard to whether adjudication was
311withheld. The court may only order sealing of a criminal history
312record pertaining to one arrest or one incident of alleged
313criminal activity, except as provided in this section. The court
314may, at its sole discretion, order the sealing of a criminal
315history record pertaining to more than one arrest if the
316additional arrests directly relate to the original arrest. If
317the court intends to order the sealing of records pertaining to
318the such additional arrests, the such intent must be specified
319in the order. A criminal justice agency may not seal any record
320pertaining to the such additional arrests if the order to seal
321does not articulate the intention of the court to seal records
322pertaining to more than one arrest. This section does not
323prevent the court from ordering the sealing of only a portion of
324a criminal history record pertaining to one arrest or one
325incident of alleged criminal activity. Notwithstanding any law
326to the contrary, a criminal justice agency may comply with laws,
327court orders, and official requests of other jurisdictions
328relating to sealing, correction, or confidential handling of
329criminal history records or information derived therefrom. This
330section does not confer any right to the sealing of any criminal
331history record, and any request for sealing a criminal history
332record may be denied at the sole discretion of the court.
333     (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
334petition to a court to seal a criminal history record is
335complete only when accompanied by:
336     (a)  A certificate of eligibility for sealing issued by the
337department pursuant to subsection (2).
338     (b)  The petitioner's sworn statement attesting that the
339petitioner:
340     1.  Has never, prior to the date on which the petition is
341filed, been adjudicated guilty of a criminal offense or
342comparable ordinance violation or adjudicated delinquent for
343committing a felony or a misdemeanor specified in s.
344943.051(3)(b).
345     2.  Has not been adjudicated guilty of or adjudicated
346delinquent for committing any of the acts stemming from the
347arrest or alleged criminal activity to which the petition to
348seal pertains.
349     3.  Except as otherwise provided in this section, has never
350secured a prior sealing or expunction of a criminal history
351record under this section, former s. 893.14, former s. 901.33,
352former s. 943.058, or from any jurisdiction outside the state.
353     4.  Is eligible for such a sealing to the best of his or
354her knowledge or belief and does not have any other petition to
355seal or any petition to expunge pending before any court.
356
357Any person who knowingly provides false information on the such
358sworn statement to the court commits a felony of the third
359degree, punishable as provided in s. 775.082, s. 775.083, or s.
360775.084.
361     (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
362petitioning the court to seal a criminal history record, a
363person seeking to seal a criminal history record shall apply to
364the department for a certificate of eligibility for sealing. The
365department shall, by rule adopted pursuant to chapter 120,
366establish procedures pertaining to the application for and
367issuance of certificates of eligibility for sealing. The
368department shall issue a certificate of eligibility for sealing
369to a person who is the subject of a criminal history record
370provided that the such person:
371     (a)  Has submitted to the department a certified copy of
372the disposition of the charge to which the petition to seal
373pertains.
374     (b)  Remits a $75 processing fee to the department for
375placement in the Department of Law Enforcement Operating Trust
376Fund, unless the such fee is waived by the executive director.
377     (c)  Has never, prior to the date on which the application
378for a certificate of eligibility is filed, been adjudicated
379guilty of a criminal offense or comparable ordinance violation
380or adjudicated delinquent for committing a felony or a
381misdemeanor specified in s. 943.051(3)(b).
382     (d)  Has not been adjudicated guilty of or adjudicated
383delinquent for committing any of the acts stemming from the
384arrest or alleged criminal activity to which the petition to
385seal pertains.
386     (e)  Has never secured a prior sealing or expunction of a
387criminal history record under this section, former s. 893.14,
388former s. 901.33, or former s. 943.058 involving an offense for
389which the defendant has been found guilty or pled guilty or nolo
390contendere.
391     (f)  Is no longer under court supervision applicable to the
392disposition of the arrest or alleged criminal activity to which
393the petition to seal pertains.
394     (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--
395     (a)  In judicial proceedings under this section, a copy of
396the completed petition to seal shall be served upon the
397appropriate state attorney or the statewide prosecutor and upon
398the arresting agency; however, it is not necessary to make any
399agency other than the state a party. The appropriate state
400attorney or the statewide prosecutor and the arresting agency
401may respond to the court regarding the completed petition to
402seal.
403     (b)  If relief is granted by the court, the clerk of the
404court shall certify copies of the order to the appropriate state
405attorney or the statewide prosecutor and to the arresting
406agency. The arresting agency is responsible for forwarding the
407order to any other agency to which the arresting agency
408disseminated the criminal history record information to which
409the order pertains. The department shall forward the order to
410seal to the Federal Bureau of Investigation. The clerk of the
411court shall certify a copy of the order to any other agency
412which the records of the court reflect has received the criminal
413history record from the court.
414     (c)  For an order to seal entered by a court prior to July
4151, 1992, the department shall notify the appropriate state
416attorney or statewide prosecutor of any order to seal which is
417contrary to law because the person who is the subject of the
418record has previously been convicted of a crime or comparable
419ordinance violation or has had a prior criminal history record
420sealed or expunged. Upon receipt of the such notice, the
421appropriate state attorney or statewide prosecutor shall take
422action, within 60 days, to correct the record and petition the
423court to void the order to seal. The department shall seal the
424record until such time as the order is voided by the court.
425     (d)  On or after July 1, 1992, the department or any other
426criminal justice agency is not required to act on an order to
427seal entered by a court when the such order does not comply with
428the requirements of this section. Upon receipt of such an order,
429the department must notify the issuing court, the appropriate
430state attorney or statewide prosecutor, the petitioner or the
431petitioner's attorney, and the arresting agency of the reason
432for noncompliance. The appropriate state attorney or statewide
433prosecutor shall take action within 60 days to correct the
434record and petition the court to void the order. No cause of
435action, including contempt of court, shall arise against any
436criminal justice agency for failure to comply with an order to
437seal when the petitioner for the such order failed to obtain the
438certificate of eligibility as required by this section or when
439the such order does not comply with the requirements of this
440section.
441     (e)  An order sealing a criminal history record pursuant to
442this section does not require that the such record be
443surrendered to the court, and the such record shall continue to
444be maintained by the department and other criminal justice
445agencies.
446     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
447history record of a minor or an adult which is ordered sealed by
448a court of competent jurisdiction pursuant to this section is
449confidential and exempt from the provisions of s. 119.07(1) and
450s. 24(a), Art. I of the State Constitution and is available only
451to the person who is the subject of the record, to the subject's
452attorney, to criminal justice agencies for their respective
453criminal justice purposes, or to those entities set forth in
454subparagraphs (a)1., 4., 5., and 6. for their respective
455licensing and employment purposes.
456     (a)  The subject of a criminal history record sealed under
457this section or under other provisions of law, including former
458s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
459deny or fail to acknowledge the arrests covered by the sealed
460record, except when the subject of the record:
461     1.  Is a candidate for employment with a criminal justice
462agency;
463     2.  Is a defendant in a criminal prosecution;
464     3.  Concurrently or subsequently petitions for relief under
465this section or s. 943.0585;
466     4.  Is a candidate for admission to The Florida Bar;
467     5.  Is seeking to be employed or licensed by or to contract
468with the Department of Children and Family Services or the
469Department of Juvenile Justice or to be employed or used by the
470such contractor or licensee in a sensitive position having
471direct contact with children, the developmentally disabled, the
472aged, or the elderly as provided in s. 110.1127(3), s. 393.063,
473s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
474409.175(2)(i), s. 415.102(4), s. 415.103, s. 916.106(10) and
475(13), s. 985.407, or chapter 400; or
476     6.  Is seeking to be employed or licensed by the Department
477of Education, any district school board, any university
478laboratory school, any charter school, any private or parochial
479school, or any local governmental entity that licenses child
480care facilities.
481     (b)  Subject to the exceptions in paragraph (a), a person
482who has been granted a sealing under this section, former s.
483893.14, former s. 901.33, or former s. 943.058 may not be held
484under any provision of law of this state to commit perjury or to
485be otherwise liable for giving a false statement by reason of
486the such person's failure to recite or acknowledge a sealed
487criminal history record.
488     (c)  Information relating to the existence of a sealed
489criminal record provided in accordance with the provisions of
490paragraph (a) is confidential and exempt from the provisions of
491s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
492except that the department shall disclose the sealed criminal
493history record to the entities set forth in subparagraphs (a)1.,
4944., 5., and 6. for their respective licensing and employment
495purposes. It is unlawful for any employee of an entity set forth
496in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5.,
497or subparagraph (a)6. to disclose information relating to the
498existence of a sealed criminal history record of a person
499seeking employment or licensure with the such entity or
500contractor, except to the person to whom the criminal history
501record relates or to persons having direct responsibility for
502employment or licensure decisions. Any person who violates the
503provisions of this paragraph commits a misdemeanor of the first
504degree, punishable as provided in s. 775.082 or s. 775.083.
505     (5)  STATUTORY REFERENCES.--Any reference to any other
506chapter, section, or subdivision of the Florida Statutes in this
507section constitutes a general reference under the doctrine of
508incorporation by reference.
509     Section 3.  This act shall take effect upon becoming a law.


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