| 1 | A bill to be entitled |
| 2 | An act relating to sealing criminal history records; |
| 3 | amending s. 943.059, F.S.; permitting the sealing of a |
| 4 | criminal history record that relates to specified |
| 5 | misdemeanor violations; defining terms; providing for a |
| 6 | petition to seal; providing for a certificate of |
| 7 | eligibility; providing an effective date. |
| 8 |
|
| 9 | Be It Enacted by the Legislature of the State of Florida: |
| 10 |
|
| 11 | Section 1. Section 943.059, Florida Statutes, is amended |
| 12 | to read: |
| 13 | 943.059 Court-ordered sealing of criminal history |
| 14 | records.-- |
| 15 | (1) REQUIREMENTS AND RESTRICTIONS.--The courts of this |
| 16 | state shall continue to have jurisdiction over their own |
| 17 | procedures, including the maintenance, sealing, and correction |
| 18 | of judicial records containing criminal history information to |
| 19 | the extent such procedures are not inconsistent with the |
| 20 | conditions, responsibilities, and duties established by this |
| 21 | section. Any court of competent jurisdiction may order a |
| 22 | criminal justice agency to seal the criminal history record of a |
| 23 | minor or an adult who complies with the requirements of this |
| 24 | section. The court shall not order a criminal justice agency to |
| 25 | seal a criminal history record until the person seeking to seal |
| 26 | a criminal history record has applied for and received a |
| 27 | certificate of eligibility for sealing pursuant to subsection |
| 28 | (3) or subsection (5) (2). A criminal history record that |
| 29 | relates to a violation of s. 393.135, s. 394.4593, s. 787.025, |
| 30 | chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. |
| 31 | 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. |
| 32 | 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. |
| 33 | 907.041, or any violation specified as a predicate offense for |
| 34 | registration as a sexual predator pursuant to s. 775.21, without |
| 35 | regard to whether that offense alone is sufficient to require |
| 36 | such registration, or for registration as a sexual offender |
| 37 | pursuant to s. 943.0435, may not be sealed, without regard to |
| 38 | whether adjudication was withheld, if the defendant was found |
| 39 | guilty of or pled guilty or nolo contendere to the offense, or |
| 40 | if the defendant, as a minor, was found to have committed or |
| 41 | pled guilty or nolo contendere to committing the offense as a |
| 42 | delinquent act. The court may only order sealing of a criminal |
| 43 | history record pertaining to one arrest or one incident of |
| 44 | alleged criminal activity, except as provided in this section. |
| 45 | The court may, at its sole discretion, order the sealing of a |
| 46 | criminal history record pertaining to more than one arrest if |
| 47 | the additional arrests directly relate to the original arrest. |
| 48 | If the court intends to order the sealing of records pertaining |
| 49 | to such additional arrests, such intent must be specified in the |
| 50 | order. A criminal justice agency may not seal any record |
| 51 | pertaining to such additional arrests if the order to seal does |
| 52 | not articulate the intention of the court to seal records |
| 53 | pertaining to more than one arrest. This section does not |
| 54 | prevent the court from ordering the sealing of only a portion of |
| 55 | a criminal history record pertaining to one arrest or one |
| 56 | incident of alleged criminal activity. Notwithstanding any law |
| 57 | to the contrary, a criminal justice agency may comply with laws, |
| 58 | court orders, and official requests of other jurisdictions |
| 59 | relating to sealing, correction, or confidential handling of |
| 60 | criminal history records or information derived therefrom. This |
| 61 | section does not confer any right to the sealing of any criminal |
| 62 | history record, and any request for sealing a criminal history |
| 63 | record may be denied at the sole discretion of the court. |
| 64 | (2)(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Except |
| 65 | as provided for in subsection (4), each petition to a court to |
| 66 | seal a criminal history record is complete only when accompanied |
| 67 | by: |
| 68 | (a) A valid certificate of eligibility for sealing issued |
| 69 | by the department pursuant to subsection (3) (2). |
| 70 | (b) The petitioner's sworn statement attesting that the |
| 71 | petitioner: |
| 72 | 1. Has never, prior to the date on which the petition is |
| 73 | filed, been adjudicated guilty of a criminal offense or |
| 74 | comparable ordinance violation, or been adjudicated delinquent |
| 75 | for committing any felony or a misdemeanor specified in s. |
| 76 | 943.051(3)(b). |
| 77 | 2. Has not been adjudicated guilty of or adjudicated |
| 78 | delinquent for committing any of the acts stemming from the |
| 79 | arrest or alleged criminal activity to which the petition to |
| 80 | seal pertains. |
| 81 | 3. Has never secured a prior sealing or expunction of a |
| 82 | criminal history record under this section, former s. 893.14, |
| 83 | former s. 901.33, former s. 943.058, or from any jurisdiction |
| 84 | outside the state. |
| 85 | 4. Is eligible for such a sealing to the best of his or |
| 86 | her knowledge or belief and does not have any other petition to |
| 87 | seal or any petition to expunge pending before any court. |
| 88 |
|
| 89 | Any person who knowingly provides false information on such |
| 90 | sworn statement to the court commits a felony of the third |
| 91 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 92 | 775.084. |
| 93 | (3)(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to |
| 94 | petitioning the court to seal a criminal history record, a |
| 95 | person seeking to seal a criminal history record shall apply to |
| 96 | the department for a certificate of eligibility for sealing. The |
| 97 | department shall, by rule adopted pursuant to chapter 120, |
| 98 | establish procedures pertaining to the application for and |
| 99 | issuance of certificates of eligibility for sealing. A |
| 100 | certificate of eligibility for sealing is valid for 12 months |
| 101 | after the date stamped on the certificate when issued by the |
| 102 | department. After that time, the petitioner must reapply to the |
| 103 | department for a new certificate of eligibility. Eligibility for |
| 104 | a renewed certification of eligibility must be based on the |
| 105 | status of the applicant and the law in effect at the time of the |
| 106 | renewal application. Except as provided for in subsection (5), |
| 107 | the department shall issue a certificate of eligibility for |
| 108 | sealing to a person who is the subject of a criminal history |
| 109 | record provided that such person: |
| 110 | (a) Has submitted to the department a certified copy of |
| 111 | the disposition of the charge to which the petition to seal |
| 112 | pertains. |
| 113 | (b) Remits a $75 processing fee to the department for |
| 114 | placement in the Department of Law Enforcement Operating Trust |
| 115 | Fund, unless such fee is waived by the executive director. |
| 116 | (c) Has never, prior to the date on which the application |
| 117 | for a certificate of eligibility is filed, been adjudicated |
| 118 | guilty of a criminal offense or comparable ordinance violation, |
| 119 | or been adjudicated delinquent for committing any felony or a |
| 120 | misdemeanor specified in s. 943.051(3)(b). |
| 121 | (d) Has not been adjudicated guilty of or adjudicated |
| 122 | delinquent for committing any of the acts stemming from the |
| 123 | arrest or alleged criminal activity to which the petition to |
| 124 | seal pertains. |
| 125 | (e) Has never secured a prior sealing or expunction of a |
| 126 | criminal history record under this section, former s. 893.14, |
| 127 | former s. 901.33, or former s. 943.058. |
| 128 | (f) Is no longer under court supervision applicable to the |
| 129 | disposition of the arrest or alleged criminal activity to which |
| 130 | the petition to seal pertains. |
| 131 | (4) PETITION TO SEAL A CRIMINAL HISTORY RECORD RELATING TO |
| 132 | CERTAIN MISDEMEANORS.-- |
| 133 | (a) For purposes of this subsection and subsection (5), |
| 134 | the term "specially sealable misdemeanor" means a misdemeanor |
| 135 | violation of s. 562.11(2), s. 562.111, s. 806.101, s. 806.13, s. |
| 136 | s. 810.08, s. 810.09, s. 810.10, s. 810.11, s. 810.115, s. |
| 137 | 810.13, s. 823.01, s. 823.02, s. 856.011, s. 856.015, s. 870.02, |
| 138 | or chapter 893 in which the petitioner was adjudicated guilty or |
| 139 | delinquent. |
| 140 | (b) Each petition to a court to seal a criminal history |
| 141 | record that relates to a specially sealable misdemeanor is |
| 142 | complete only when accompanied by: |
| 143 | 1. A valid certificate of eligibility for sealing issued |
| 144 | by the department pursuant to subsection (5). |
| 145 | 2. The petitioner's sworn statement attesting that: |
| 146 | a. With the exception of being adjudicated guilty or |
| 147 | delinquent for committing a specially sealable misdemeanor to |
| 148 | which the petition to seal pertains, the petitioner has never, |
| 149 | prior to the date on which the petition is filed, been |
| 150 | adjudicated guilty of a criminal offense or comparable ordinance |
| 151 | violation or been adjudicated delinquent for committing any |
| 152 | felony or a misdemeanor specified in s. 943.051(3)(b). |
| 153 | b. The petitioner was adjudicated guilty or delinquent of |
| 154 | a specially sealable misdemeanor to which the petition pertains |
| 155 | more than 10 years prior to the date on which the petition is |
| 156 | filed. |
| 157 | c. The petitioner has never secured a prior sealing or |
| 158 | expunction of a criminal history record under this section, |
| 159 | former s. 893.14, former s. 901.33, or former s. 943.058, or |
| 160 | from any jurisdiction outside the state. |
| 161 | d. The petitioner is eligible for such a sealing to the |
| 162 | best of his or her knowledge or belief and does not have any |
| 163 | other petition to seal or any petition to expunge pending before |
| 164 | any court. |
| 165 |
|
| 166 | Any person who knowingly provides false information on such |
| 167 | sworn statement to the court commits a felony of the third |
| 168 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 169 | 775.084. |
| 170 | (5) CERTIFICATE OF ELIGIBILITY FOR SEALING A CRIMINAL |
| 171 | HISTORY RECORD RELATING TO CERTAIN MISDEMEANORS.--Prior to |
| 172 | petitioning the court to seal a criminal history record relating |
| 173 | to a specially sealable misdemeanor, a person seeking to seal a |
| 174 | criminal history record shall apply to the department for a |
| 175 | certificate of eligibility for sealing. The department shall, by |
| 176 | rule adopted pursuant to chapter 120, establish procedures |
| 177 | pertaining to the application for and issuance of certificates |
| 178 | of eligibility for sealing. The department shall endeavor to |
| 179 | make forms and procedures as simple to use as possible in order |
| 180 | to facilitate applicants who are proceeding without assistance. |
| 181 | A certificate of eligibility for sealing is valid for 12 months |
| 182 | after the date stamped on the certificate when issued by the |
| 183 | department. After that time, the petitioner must reapply to the |
| 184 | department for a new certificate of eligibility. Eligibility for |
| 185 | a renewed certification of eligibility must be based on the |
| 186 | status of the applicant and the law in effect at the time of the |
| 187 | renewal application. The department shall issue a certificate of |
| 188 | eligibility for sealing to a person who is the subject of a |
| 189 | criminal history record provided that such person: |
| 190 | (a) Has submitted to the department a certified copy of |
| 191 | the disposition of the charge to which the petition to seal |
| 192 | pertains. |
| 193 | (b) Remits a $75 processing fee to the department for |
| 194 | placement in the Department of Law Enforcement Operating Trust |
| 195 | Fund, unless such fee is waived by the executive director. |
| 196 | (c) With the exception of being adjudicated guilty or |
| 197 | delinquent for committing a misdemeanor violation of a provision |
| 198 | listed in paragraph (4)(a) to which the petition to seal |
| 199 | pertains, has never, prior to the date on which the application |
| 200 | for a certificate of eligibility is filed, been adjudicated |
| 201 | guilty of a criminal offense or comparable ordinance violation |
| 202 | or been adjudicated delinquent for committing any felony or a |
| 203 | misdemeanor specified in s. 943.051(3)(b). |
| 204 | (d) Was adjudicated guilty or delinquent for a specially |
| 205 | sealable misdemeanor to which the petition pertains more than 10 |
| 206 | years prior to the date on which the petition is filed. |
| 207 | (e) Has never secured a prior sealing or expunction of a |
| 208 | criminal history record under this section, former s. 893.14, |
| 209 | former s. 901.33, or former s. 943.058. |
| 210 | (f) Is no longer under court supervision applicable to the |
| 211 | disposition of the arrest or alleged criminal activity to which |
| 212 | the petition to seal pertains. |
| 213 | (6)(3) PROCESSING OF A PETITION OR ORDER TO SEAL.-- |
| 214 | (a) In judicial proceedings under this section, a copy of |
| 215 | the completed petition to seal shall be served upon the |
| 216 | appropriate state attorney or the statewide prosecutor and upon |
| 217 | the arresting agency; however, it is not necessary to make any |
| 218 | agency other than the state a party. The appropriate state |
| 219 | attorney or the statewide prosecutor and the arresting agency |
| 220 | may respond to the court regarding the completed petition to |
| 221 | seal. |
| 222 | (b) If relief is granted by the court, the clerk of the |
| 223 | court shall certify copies of the order to the appropriate state |
| 224 | attorney or the statewide prosecutor and to the arresting |
| 225 | agency. The arresting agency is responsible for forwarding the |
| 226 | order to any other agency to which the arresting agency |
| 227 | disseminated the criminal history record information to which |
| 228 | the order pertains. The department shall forward the order to |
| 229 | seal to the Federal Bureau of Investigation. The clerk of the |
| 230 | court shall certify a copy of the order to any other agency |
| 231 | which the records of the court reflect has received the criminal |
| 232 | history record from the court. |
| 233 | (c) For an order to seal entered by a court prior to July |
| 234 | 1, 1992, the department shall notify the appropriate state |
| 235 | attorney or statewide prosecutor of any order to seal which is |
| 236 | contrary to law because the person who is the subject of the |
| 237 | record has previously been convicted of a crime or comparable |
| 238 | ordinance violation or has had a prior criminal history record |
| 239 | sealed or expunged. Upon receipt of such notice, the appropriate |
| 240 | state attorney or statewide prosecutor shall take action, within |
| 241 | 60 days, to correct the record and petition the court to void |
| 242 | the order to seal. The department shall seal the record until |
| 243 | such time as the order is voided by the court. |
| 244 | (d) On or after July 1, 1992, the department or any other |
| 245 | criminal justice agency is not required to act on an order to |
| 246 | seal entered by a court when such order does not comply with the |
| 247 | requirements of this section. Upon receipt of such an order, the |
| 248 | department must notify the issuing court, the appropriate state |
| 249 | attorney or statewide prosecutor, the petitioner or the |
| 250 | petitioner's attorney, and the arresting agency of the reason |
| 251 | for noncompliance. The appropriate state attorney or statewide |
| 252 | prosecutor shall take action within 60 days to correct the |
| 253 | record and petition the court to void the order. No cause of |
| 254 | action, including contempt of court, shall arise against any |
| 255 | criminal justice agency for failure to comply with an order to |
| 256 | seal when the petitioner for such order failed to obtain the |
| 257 | certificate of eligibility as required by this section or when |
| 258 | such order does not comply with the requirements of this |
| 259 | section. |
| 260 | (e) An order sealing a criminal history record pursuant to |
| 261 | this section does not require that such record be surrendered to |
| 262 | the court, and such record shall continue to be maintained by |
| 263 | the department and other criminal justice agencies. |
| 264 | (7)(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A |
| 265 | criminal history record of a minor or an adult which is ordered |
| 266 | sealed by a court of competent jurisdiction pursuant to this |
| 267 | section is confidential and exempt from the provisions of s. |
| 268 | 119.07(1) and s. 24(a), Art. I of the State Constitution and is |
| 269 | available only to the person who is the subject of the record, |
| 270 | to the subject's attorney, to criminal justice agencies for |
| 271 | their respective criminal justice purposes, which include |
| 272 | conducting a criminal history background check for approval of |
| 273 | firearms purchases or transfers as authorized by state or |
| 274 | federal law, or to those entities set forth in subparagraphs |
| 275 | (a)1., 4., 5., 6., and 8. for their respective licensing, access |
| 276 | authorization, and employment purposes. |
| 277 | (a) The subject of a criminal history record sealed under |
| 278 | this section or under other provisions of law, including former |
| 279 | s. 893.14, former s. 901.33, and former s. 943.058, may lawfully |
| 280 | deny or fail to acknowledge the arrests covered by the sealed |
| 281 | record, except when the subject of the record: |
| 282 | 1. Is a candidate for employment with a criminal justice |
| 283 | agency; |
| 284 | 2. Is a defendant in a criminal prosecution; |
| 285 | 3. Concurrently or subsequently petitions for relief under |
| 286 | this section or s. 943.0585; |
| 287 | 4. Is a candidate for admission to The Florida Bar; |
| 288 | 5. Is seeking to be employed or licensed by or to contract |
| 289 | with the Department of Children and Family Services or the |
| 290 | Department of Juvenile Justice or to be employed or used by such |
| 291 | contractor or licensee in a sensitive position having direct |
| 292 | contact with children, the developmentally disabled, the aged, |
| 293 | or the elderly as provided in s. 110.1127(3), s. 393.063, s. |
| 294 | 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. |
| 295 | 409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s. |
| 296 | 985.644, chapter 400, or chapter 429; |
| 297 | 6. Is seeking to be employed or licensed by the Department |
| 298 | of Education, any district school board, any university |
| 299 | laboratory school, any charter school, any private or parochial |
| 300 | school, or any local governmental entity that licenses child |
| 301 | care facilities; |
| 302 | 7. Is attempting to purchase a firearm from a licensed |
| 303 | importer, licensed manufacturer, or licensed dealer and is |
| 304 | subject to a criminal history background check under state or |
| 305 | federal law; or |
| 306 | 8. Is seeking authorization from a Florida seaport |
| 307 | identified in s. 311.09 for employment within or access to one |
| 308 | or more of such seaports pursuant to s. 311.12 or s. 311.125. |
| 309 | (b) Subject to the exceptions in paragraph (a), a person |
| 310 | who has been granted a sealing under this section, former s. |
| 311 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
| 312 | under any provision of law of this state to commit perjury or to |
| 313 | be otherwise liable for giving a false statement by reason of |
| 314 | such person's failure to recite or acknowledge a sealed criminal |
| 315 | history record. |
| 316 | (c) Information relating to the existence of a sealed |
| 317 | criminal record provided in accordance with the provisions of |
| 318 | paragraph (a) is confidential and exempt from the provisions of |
| 319 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
| 320 | except that the department shall disclose the sealed criminal |
| 321 | history record to the entities set forth in subparagraphs (a)1., |
| 322 | 4., 5., 6., and 8. for their respective licensing, access |
| 323 | authorization, and employment purposes. It is unlawful for any |
| 324 | employee of an entity set forth in subparagraph (a)1., |
| 325 | subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or |
| 326 | subparagraph (a)8. to disclose information relating to the |
| 327 | existence of a sealed criminal history record of a person |
| 328 | seeking employment, access authorization, or licensure with such |
| 329 | entity or contractor, except to the person to whom the criminal |
| 330 | history record relates or to persons having direct |
| 331 | responsibility for employment, access authorization, or |
| 332 | licensure decisions. Any person who violates the provisions of |
| 333 | this paragraph commits a misdemeanor of the first degree, |
| 334 | punishable as provided in s. 775.082 or s. 775.083. |
| 335 | (8)(5) STATUTORY REFERENCES.--Any reference to any other |
| 336 | chapter, section, or subdivision of the Florida Statutes in this |
| 337 | section constitutes a general reference under the doctrine of |
| 338 | incorporation by reference. |
| 339 | Section 2. This act shall take effect July 1, 2007. |