Senate Bill sb2158

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    Florida Senate - 2007                                  SB 2158

    By Senator Wilson





    33-1258-07

  1                      A bill to be entitled

  2         An act relating to criminal records; amending

  3         s. 943.0515, F.S.; requiring the Department of

  4         Law Enforcement to notify certain specified

  5         agencies of the criminal records of a minor

  6         which are expunged; requiring the arresting

  7         agency, the county, and the department to

  8         notify those entities that received the

  9         criminal records information; requiring that

10         criminal history records that are to be

11         expunged be physically destroyed or obliterated

12         by the department and any criminal justice

13         agency having physical custody of the records;

14         amending s. 943.0585, F.S.; prohibiting certain

15         criminal records from being expunged; providing

16         that other records may be expunged under

17         certain circumstances; providing that certain

18         information be included in the application for

19         a certificate of eligibility for expunction;

20         prohibiting an agency, organization, or company

21         to which criminal history information was

22         disseminated from releasing the expunged

23         information after a specified period; amending

24         s. 943.059, F.S.; prohibiting certain criminal

25         records from being sealed; providing that other

26         records may be sealed under certain

27         circumstances; requiring that certain

28         information be included in the application for

29         a certificate of eligibility for sealing;

30         prohibiting an agency, organization, or company

31         to which criminal history information was

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 1         disseminated from releasing the sealed

 2         information after a specified period; amending

 3         s. 943.0582, F.S.; conforming a

 4         cross-reference; providing an effective date.

 5  

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

 7  

 8         Section 1.  Subsections (3) and (4) are added to

 9  section 943.0515, Florida Statutes, to read:

10         943.0515  Retention of criminal history records of

11  minors.--

12         (3)  The department shall notify the appropriate clerk

13  of the court, the state attorney or statewide prosecutor, the

14  county, and the arresting agency of any criminal history

15  record that is expunged under this section. The arresting

16  agency shall send the department's notification to any other

17  agency to which the arresting agency disseminated the criminal

18  history record information and to which the order pertains.

19  The county shall send the department's notification to any

20  agency, organization, or company to which the county

21  disseminated the criminal history information and to which the

22  order pertains. The department shall send the notification of

23  expungement to the Federal Bureau of Investigation. The clerk

24  of the court shall certify a copy of the department's

25  notification to any other agency that has received the

26  criminal history record, as reflected in the records of the

27  court.

28         (4)  Any criminal history record that is expunged by

29  the department under this section must be physically destroyed

30  or obliterated by any criminal justice agency that has custody

31  

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 1  of the record, except that a criminal history record in the

 2  custody of the department must be retained in all cases.

 3         Section 2.  Section 943.0585, Florida Statutes, is

 4  amended to read:

 5         943.0585  Court-ordered expunction of criminal history

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

 7  their own procedures, including the maintenance, expunction,

 8  and correction of judicial records containing criminal history

 9  information to the extent such procedures are not inconsistent

10  with the conditions, responsibilities, and duties established

11  by this section. Any court of competent jurisdiction may order

12  a criminal justice agency to expunge the criminal history

13  record of a minor or an adult who complies with the

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

15  criminal justice agency to expunge a criminal history record

16  until the person seeking to expunge a criminal history record

17  has applied for and received a certificate of eligibility for

18  expunction pursuant to subsection (3) (2).

19         (1)  PROHIBITION ON EXPUNGING CERTAIN RECORDS.-- A

20  criminal history record that relates to a violation of s.

21  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.

22  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071,

23  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.

24  893.135, s. 916.1075, a violation enumerated in s. 907.041, or

25  any violation specified as a predicate offense for

26  registration as a sexual predator pursuant to s. 775.21,

27  without regard to whether that offense alone is sufficient to

28  require such registration, or for registration as a sexual

29  offender pursuant to s. 943.0435, may not be expunged, without

30  regard to whether adjudication was withheld, if the defendant

31  was found guilty of or pled guilty or nolo contendere to the

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 1  offense, or if the defendant, as a minor, was found to have

 2  committed, or pled guilty or nolo contendere to committing,

 3  the offense as a delinquent act even if the adjudication was

 4  withheld. The prohibition applies only to cases in which the

 5  defendant, including a minor, was found guilty of or pled

 6  guilty or nolo contendere to the offense. In all other

 7  instances involving the enumerated offenses in this

 8  subsection, the record may be expunged if an indictment,

 9  information, or other charging document was not filed or

10  issued in the case or, if filed or issued in the case, was

11  dismissed or nolle prosequi by the state attorney or statewide

12  prosecutor or was dismissed by a court of competent

13  jurisdiction, or the person was found not guilty or acquitted

14  by a judge or jury. The court may only order expunction of a

15  criminal history record pertaining to one arrest or one

16  incident of alleged criminal activity, except as provided in

17  this section. The court may, at its sole discretion, order the

18  expunction of a criminal history record pertaining to more

19  than one arrest if the additional arrests directly relate to

20  the original arrest. If the court intends to order the

21  expunction of records pertaining to such additional arrests,

22  such intent must be specified in the order. A criminal justice

23  agency may not expunge any record pertaining to such

24  additional arrests if the order to expunge does not articulate

25  the intention of the court to expunge a record pertaining to

26  more than one arrest. This section does not prevent the court

27  from ordering the expunction of only a portion of a criminal

28  history record pertaining to one arrest or one incident of

29  alleged criminal activity. Notwithstanding any law to the

30  contrary, a criminal justice agency may comply with laws,

31  court orders, and official requests of other jurisdictions

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 1  relating to expunction, correction, or confidential handling

 2  of criminal history records or information derived therefrom.

 3  This section does not confer any right to the expunction of

 4  any criminal history record, and any request for expunction of

 5  a criminal history record may be denied at the sole discretion

 6  of the court.

 7         (2)(1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

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

 9  history record is complete only when accompanied by:

10         (a)  A valid certificate of eligibility for expunction

11  issued by the department pursuant to subsection (2).

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

13  the petitioner:

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

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

16  comparable ordinance violation, or been adjudicated delinquent

17  for committing any felony or a misdemeanor specified in s.

18  943.051(3)(b).

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

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

21  arrest or alleged criminal activity to which the petition

22  pertains.

23         3.  Except as otherwise provided in this section, has

24  never secured a prior sealing or expunction of a criminal

25  history record under this section, former s. 893.14, former s.

26  901.33, or former s. 943.058, or from any jurisdiction outside

27  the state, unless expunction is sought of a criminal history

28  record previously sealed for 10 years pursuant to paragraph

29  (2)(h) and the record is otherwise eligible for expunction.

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

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

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 1  petition to expunge or any petition to seal 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         (3)(2)  CERTIFICATE OF ELIGIBILITY FOR

 9  EXPUNCTION.--Before Prior to petitioning the court to expunge

10  a criminal history record, a person seeking to expunge a

11  criminal history record shall apply to the department for a

12  certificate of eligibility for expunction. The department

13  shall, by rule adopted pursuant to chapter 120, establish

14  procedures pertaining to the application for and issuance of

15  certificates of eligibility for expunction. A certificate of

16  eligibility for expunction is valid for 12 months after the

17  date stamped on the certificate when issued by the department.

18  After that time, the petitioner must reapply to the department

19  for a new certificate of eligibility. Eligibility for a

20  renewed certification of eligibility must be based on the

21  status of the applicant and the law in effect at the time of

22  the renewal application. The department shall issue a

23  certificate of eligibility for expunction to a person who is

24  the subject of a criminal history record if that person:

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

26  written, certified statement from the appropriate state

27  attorney or statewide prosecutor which indicates:

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

29  document was not filed or issued in the case.

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

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

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 1  nolle prosequi by the state attorney or statewide prosecutor,

 2  or was dismissed by a court of competent jurisdiction, or that

 3  the person was found not guilty or acquitted by a judge or

 4  jury, and that none of the charges related to the arrest or

 5  alleged criminal activity to which the petition to expunge

 6  pertains resulted in a trial, without regard to whether the

 7  outcome of the trial was other than an adjudication of guilt.

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

 9  a violation of s. 393.135, s. 394.4593, s. 787.025, chapter

10  794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025,

11  s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s.

12  847.0145, s. 893.135, s. 916.1075, a violation enumerated in

13  s. 907.041, or any violation specified as a predicate offense

14  for registration as a sexual predator pursuant to s. 775.21,

15  without regard to whether that offense alone is sufficient to

16  require such registration, or for registration as a sexual

17  offender pursuant to s. 943.0435, where the defendant was

18  found guilty of, or pled guilty or nolo contendere to any such

19  offense, or that the defendant, as a minor, was found to have

20  committed, or pled guilty or nolo contendere to committing,

21  such an offense as a delinquent act, without regard to whether

22  adjudication was withheld.

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

24  placement in the Department of Law Enforcement Operating Trust

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

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

27  of the disposition of the charge to which the petition to

28  expunge pertains.

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

30  application for a certificate of eligibility is filed, been

31  adjudicated guilty of a criminal offense or comparable

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 1  ordinance violation, or been adjudicated delinquent for

 2  committing any felony or a misdemeanor specified in s.

 3  943.051(3)(b).

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

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

 6  arrest or alleged criminal activity to which the petition to

 7  expunge pertains.

 8         (f)  Has never secured a prior sealing or expunction of

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

10  893.14, former s. 901.33, or former s. 943.058, involving an

11  offense for which the defendant had been found guilty or pled

12  guilty or nolo contendere, unless expunction is sought of a

13  criminal history record previously sealed for 10 years

14  pursuant to paragraph (h) and the record is otherwise eligible

15  for expunction.

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)  Has previously obtained a court order sealing the

20  record under this section, former s. 893.14, former s. 901.33,

21  or former s. 943.058 for a minimum of 10 years because

22  adjudication was withheld or because all charges related to

23  the arrest or alleged criminal activity to which the petition

24  to expunge pertains were not dismissed prior to trial, without

25  regard to whether the outcome of the trial was other than an

26  adjudication of guilt. The requirement for the record to have

27  previously been sealed for a minimum of 10 years does not

28  apply when a plea was not entered or all charges related to

29  the arrest or alleged criminal activity to which the petition

30  to expunge pertains were dismissed prior to trial.

31         (4)(3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

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

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

 3  appropriate state attorney or the statewide prosecutor and

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

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

 6  state attorney or the statewide prosecutor and the arresting

 7  agency may respond to the court regarding the completed

 8  petition to expunge.

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

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

11  state attorney or the statewide prosecutor and the county and

12  the arresting agency. The arresting agency is responsible for

13  forwarding the order to any other agency to which the

14  arresting agency disseminated the criminal history record

15  information to which the order pertains. The county is

16  responsible for forwarding the order to any agency,

17  organization, or company to which the county disseminated the

18  criminal history information to which the order pertains. The

19  department shall forward the order to expunge to the Federal

20  Bureau of Investigation. The clerk of the court shall certify

21  a copy of the order to any other agency which the records of

22  the court reflect has received the criminal history record

23  from the court.

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

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

26  state attorney or statewide prosecutor of an order to expunge

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

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

29  comparable ordinance violation or has had a prior criminal

30  history record sealed or expunged. Upon receipt of such

31  notice, the appropriate state attorney or statewide prosecutor

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

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

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

 4  is voided by the court.

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

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

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

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

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

10  the appropriate state attorney or statewide prosecutor, the

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

12  agency of the reason for noncompliance. The appropriate state

13  attorney or statewide prosecutor shall take action within 60

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

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

16  arise against any criminal justice agency for failure to

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

18  order failed to obtain the certificate of eligibility as

19  required by this section or such order does not otherwise

20  comply with the requirements of this section.

21         (5)(4)  EFFECT OF CRIMINAL HISTORY RECORD

22  EXPUNCTION.--Any criminal history record of a minor or an

23  adult which is ordered expunged by a court of competent

24  jurisdiction pursuant to this section must be physically

25  destroyed or obliterated by any criminal justice agency having

26  custody of such record; except that any criminal history

27  record in the custody of the department must be retained in

28  all cases. A criminal history record ordered expunged that is

29  retained by the department is confidential and exempt from the

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

31  Constitution and not available to any person or entity except

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 1  upon order of a court of competent jurisdiction. A criminal

 2  justice agency may retain a notation indicating compliance

 3  with an order to expunge.

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

 5  history record that is expunged under this section or under

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

 7  901.33, and former s. 943.058, may lawfully deny or fail to

 8  acknowledge the arrests covered by the expunged record, except

 9  when the subject of the record:

10         1.  Is a candidate for employment with a criminal

11  justice agency;

12         2.  Is a defendant in a criminal prosecution;

13         3.  Concurrently or subsequently petitions for relief

14  under this section or s. 943.059;

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

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

17  contract with the Department of Children and Family Services

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

19  used by such contractor or licensee in a sensitive position

20  having direct contact with children, the developmentally

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

22  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

23  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),

24  chapter 916, s. 985.644, chapter 400, or chapter 429;

25         6.  Is seeking to be employed or licensed by the

26  Department of Education, any district school board, any

27  university laboratory school, any charter school, any private

28  or parochial school, or any local governmental entity that

29  licenses child care facilities; or

30  

31  

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 1         7.  Is seeking authorization from a Florida seaport

 2  identified in s. 311.09 for employment within or access to one

 3  or more of such seaports pursuant to s. 311.12 or s. 311.125.

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

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

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

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

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

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

10  expunged criminal history record.

11         (c)  Information relating to the existence of an

12  expunged criminal history record which is provided in

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

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

15  State Constitution, except that the department shall disclose

16  the existence of a criminal history record ordered expunged to

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

18  7. for their respective licensing, access authorization, and

19  employment purposes, and to criminal justice agencies for

20  their respective criminal justice purposes. It is unlawful for

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

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

23  subparagraph (a)7. to disclose information relating to the

24  existence of an expunged criminal history record of a person

25  seeking employment, access authorization, or licensure with

26  such entity or contractor, except to the person to whom the

27  criminal history record relates or to persons having direct

28  responsibility for employment, access authorization, or

29  licensure decisions. Any person who violates this paragraph

30  commits a misdemeanor of the first degree, punishable as

31  provided in s. 775.082 or s. 775.083.

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 1         (d)  An agency, organization, or company to which the

 2  county, state, or arresting agency disseminated the criminal

 3  history information and which has received the order expunging

 4  the record may not release the expunged information to the

 5  public after 30 days following the date that it receives the

 6  court order expunging the record.

 7         (6)(5)  STATUTORY REFERENCES.--Any reference to any

 8  other chapter, section, or subdivision of the Florida Statutes

 9  in this section constitutes a general reference under the

10  doctrine of incorporation by reference.

11         Section 3.  Section 943.059, Florida Statutes, is

12  amended to read:

13         943.059  Court-ordered sealing of criminal history

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

15  jurisdiction over their own procedures, including the

16  maintenance, sealing, and correction of judicial records

17  containing criminal history information to the extent such

18  procedures are not inconsistent with the conditions,

19  responsibilities, and duties established by this section. Any

20  court of competent jurisdiction may order a criminal justice

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

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

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

24  criminal history record until the person seeking to seal a

25  criminal history record has applied for and received a

26  certificate of eligibility for sealing pursuant to subsection

27  (3) (2).

28         (1)  PROHIBITION ON SEALING CERTAIN RECORDS.--A

29  criminal history record that relates to a violation of s.

30  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.

31  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071,

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 1  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.

 2  893.135, s. 916.1075, a violation enumerated in s. 907.041, or

 3  any violation specified as a predicate offense for

 4  registration as a sexual predator pursuant to s. 775.21,

 5  without regard to whether that offense alone is sufficient to

 6  require such registration, or for registration as a sexual

 7  offender pursuant to s. 943.0435, may not be sealed, without

 8  regard to whether adjudication was withheld, if the defendant

 9  was found guilty of or pled guilty or nolo contendere to the

10  offense, or if the defendant, as a minor, was found to have

11  committed or pled guilty or nolo contendere to committing the

12  offense as a delinquent act even if the adjudication was

13  withheld. The prohibition applies only to cases in which the

14  defendant, including a minor, was found guilty of or pled

15  guilty or nolo contendere to the offense. In all other

16  instances involving the enumerated offenses in this

17  subsection, the record may be sealed if an indictment,

18  information, or other charging document was not filed or

19  issued in the case or, if filed or issued in the case, was

20  dismissed or nolle prosequi by the state attorney or statewide

21  prosecutor or was dismissed by a court of competent

22  jurisdiction, or the person was found not guilty or acquitted

23  by a judge or jury. The court may only order sealing of a

24  criminal history record pertaining to one arrest or one

25  incident of alleged criminal activity, except as provided in

26  this section. The court may, at its sole discretion, order the

27  sealing of a criminal history record pertaining to more than

28  one arrest if the additional arrests directly relate to the

29  original arrest. If the court intends to order the sealing of

30  records pertaining to such additional arrests, such intent

31  must be specified in the order. A criminal justice agency may

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 1  not seal any record pertaining to such additional arrests if

 2  the order to seal does not articulate the intention of the

 3  court to seal records pertaining to more than one arrest. This

 4  section does not prevent the court from ordering the sealing

 5  of only a portion of a criminal history record pertaining to

 6  one arrest or one incident of alleged criminal activity.

 7  Notwithstanding any law to the contrary, a criminal justice

 8  agency may comply with laws, court orders, and official

 9  requests of other jurisdictions relating to sealing,

10  correction, or confidential handling of criminal history

11  records or information derived therefrom. This section does

12  not confer any right to the sealing of any criminal history

13  record, and any request for sealing a criminal history record

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

15         (2)(1)  PETITION TO SEAL A CRIMINAL HISTORY

16  RECORD.--Each petition to a court to seal a criminal history

17  record is complete only when accompanied by:

18         (a)  A valid certificate of eligibility for sealing

19  issued by the department pursuant to subsection (2).

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

21  the petitioner:

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

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

24  comparable ordinance violation, or been adjudicated delinquent

25  for committing any felony or a misdemeanor specified in s.

26  943.051(3)(b).

27         2.  Has not been adjudicated guilty of or adjudicated

28  delinquent for committing any of the acts stemming from the

29  arrest or alleged criminal activity to which the petition to

30  seal pertains.

31  

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 1         3.  Except as otherwise provided in this section, has

 2  never secured a prior sealing or expunction of a criminal

 3  history record under this section, former s. 893.14, former s.

 4  901.33, former s. 943.058, or from any jurisdiction outside

 5  the state.

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

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

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

 9  court.

10  

11  Any person who knowingly provides false information on such

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

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

14  s. 775.084.

15         (3)(2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior

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

17  person seeking to seal a criminal history record shall apply

18  to the department for a certificate of eligibility for

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

20  chapter 120, establish procedures pertaining to the

21  application for and issuance of certificates of eligibility

22  for sealing. A certificate of eligibility for sealing is valid

23  for 12 months after the date stamped on the certificate when

24  issued by the department. After that time, the petitioner must

25  reapply to the department for a new certificate of

26  eligibility. Eligibility for a renewed certification of

27  eligibility must be based on the status of the applicant and

28  the law in effect at the time of the renewal application. The

29  department shall issue a certificate of eligibility for

30  sealing to a person who is the subject of a criminal history

31  record provided that such person:

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

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

 3  pertains.

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

 5  placement in the Department of Law Enforcement Operating Trust

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

 7         (c)  Has never, prior to the date on which the

 8  application for a certificate of eligibility is filed, been

 9  adjudicated guilty of a criminal offense or comparable

10  ordinance violation, or been adjudicated delinquent for

11  committing any felony or a misdemeanor specified in s.

12  943.051(3)(b).

13         (d)  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 to

16  seal pertains.

17         (e)  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 involving an

20  offense for which the defendant had been found guilty or pled

21  guilty or nolo contendere.

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

23  the disposition of the arrest or alleged criminal activity to

24  which the petition to seal pertains.

25         (4)(3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

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

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

28  appropriate state attorney or the statewide prosecutor and

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

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

31  state attorney or the statewide prosecutor and the arresting

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 1  agency may respond to the court regarding the completed

 2  petition to seal.

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

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

 5  state attorney or the statewide prosecutor, the county and to

 6  the arresting agency. The arresting agency is responsible for

 7  forwarding the order to any other agency to which the

 8  arresting agency disseminated the criminal history record

 9  information to which the order pertains. The county is

10  responsible for forwarding the order to any agency,

11  organization, or company to which the county disseminated the

12  criminal history information to which the order pertains.

13         The department shall forward the order to seal to the

14  Federal Bureau of Investigation. The clerk of the court shall

15  certify a copy of the order to any other agency which the

16  records of the court reflect has received the criminal history

17  record from the court.

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

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

20  state attorney or statewide prosecutor of any order to seal

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

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

23  comparable ordinance violation or has had a prior criminal

24  history record sealed or expunged. Upon receipt of such

25  notice, the appropriate state attorney or statewide prosecutor

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

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

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

29  by the court.

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

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

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

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

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

 4  the appropriate state attorney or statewide prosecutor, the

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

 6  agency of the reason for noncompliance. The appropriate state

 7  attorney or statewide prosecutor shall take action within 60

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

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

10  arise against any criminal justice agency for failure to

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

12  order failed to obtain the certificate of eligibility as

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

14  with the requirements of this section.

15         (e)  An order sealing a criminal history record

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

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

18  maintained by the department and other criminal justice

19  agencies.

20         (f)  An agency, organization, or company to which the

21  county, state, or arresting agency disseminated the criminal

22  history information and which has received the order sealing

23  the record may not release the sealed information to the

24  public after 30 days following the date that it receives the

25  court order sealing the record.

26         (5)(4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

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

28  ordered sealed by a court of competent jurisdiction pursuant

29  to this section is confidential and exempt from the provisions

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

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

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

 2  agencies for their respective criminal justice purposes, which

 3  include conducting a criminal history background check for

 4  approval of firearms purchases or transfers as authorized by

 5  state or federal law, or to those entities set forth in

 6  subparagraphs (a)1., 4., 5., 6., and 8. for their respective

 7  licensing, access authorization, and employment purposes.

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

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

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

11  lawfully deny or fail to acknowledge the arrests covered by

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

13         1.  Is a candidate for employment with a criminal

14  justice agency;

15         2.  Is a defendant in a criminal prosecution;

16         3.  Concurrently or subsequently petitions for relief

17  under this section or s. 943.0585;

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

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

20  contract with the Department of Children and Family Services

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

22  used by such contractor or licensee in a sensitive position

23  having direct contact with children, the developmentally

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

25  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

26  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

27  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;

28         6.  Is seeking to be employed or licensed by the

29  Department of Education, any district school board, any

30  university laboratory school, any charter school, any private

31  

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 1  or parochial school, or any local governmental entity that

 2  licenses child care facilities;

 3         7.  Is attempting to purchase a firearm from a licensed

 4  importer, licensed manufacturer, or licensed dealer and is

 5  subject to a criminal history background check under state or

 6  federal law; or

 7         8.  Is seeking authorization from a Florida seaport

 8  identified in s. 311.09 for employment within or access to one

 9  or more of such seaports pursuant to s. 311.12 or s. 311.125.

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

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

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

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

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

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

16  sealed criminal history record.

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

18  criminal record provided in accordance with the provisions of

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

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

21  Constitution, except that the department shall disclose the

22  sealed criminal history record to the entities set forth in

23  subparagraphs (a)1., 4., 5., 6., and 8. for their respective

24  licensing, access authorization, and employment purposes. It

25  is unlawful for any employee of an entity set forth in

26  subparagraph (a)1., subparagraph (a)4., subparagraph (a)5.,

27  subparagraph (a)6., or subparagraph (a)8. to disclose

28  information relating to the existence of a sealed criminal

29  history record of a person seeking employment, access

30  authorization, or licensure with such entity or contractor,

31  except to the person to whom the criminal history record

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 1  relates or to persons having direct responsibility for

 2  employment, access authorization, or licensure decisions. Any

 3  person who violates the provisions of this paragraph commits a

 4  misdemeanor of the first degree, punishable as provided in s.

 5  775.082 or s. 775.083.

 6         (6)(5)  STATUTORY REFERENCES.--Any reference to any

 7  other chapter, section, or subdivision of the Florida Statutes

 8  in this section constitutes a general reference under the

 9  doctrine of incorporation by reference.

10         Section 4.  Paragraph (a) of subsection (2) of section

11  943.0582, Florida Statutes, is amended to read:

12         943.0582  Prearrest, postarrest, or teen court

13  diversion program expunction.--

14         (2)(a)  As used in this section, the term "expunction"

15  has the same meaning ascribed in and effect as s. 943.0585,

16  except that:

17         1.  The provisions of s. 943.0585(5)(a) s.

18  943.0585(4)(a) do not apply, except that the criminal history

19  record of a person whose record is expunged pursuant to this

20  section shall be made available only to criminal justice

21  agencies for the purpose of determining eligibility for

22  prearrest, postarrest, or teen court diversion programs; when

23  the record is sought as part of a criminal investigation; or

24  when the subject of the record is a candidate for employment

25  with a criminal justice agency.  For all other purposes, a

26  person whose record is expunged under this section may

27  lawfully deny or fail to acknowledge the arrest and the charge

28  covered by the expunged record.

29         2.  Records maintained by local criminal justice

30  agencies in the county in which the arrest occurred that are

31  

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 1  eligible for expunction pursuant to this section shall be

 2  sealed as the term is used in s. 943.059.

 3         Section 5.  This act shall take effect July 1, 2007.

 4  

 5            *****************************************

 6                          SENATE SUMMARY

 7    Requires the Department of Law Enforcement to notify
      certain specified agencies of the criminal records of a
 8    minor which are being expunged. Requires that criminal
      history records that are to be expunged be physically
 9    destroyed or obliterated by the department and any
      criminal justice agency having physical custody of the
10    records. Prohibits certain criminal records from being
      expunged or sealed. Provides that other records may be
11    expunged or sealed under certain circumstances. Provides
      that certain information be included in the application
12    for a certificate of eligibility for expunction or the
      application for a certificate of eligibility for sealing.
13    Prohibits an agency, organization, or company to which
      criminal history information was disseminated from
14    releasing the expunged or sealed information after a
      specified period.
15  

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