HB 717

1
A bill to be entitled
2An act relating to sealing criminal history records;
3amending s. 943.059, F.S.; permitting the sealing of a
4criminal history record that relates to specified
5misdemeanor violations; defining terms; providing for a
6petition to seal; providing for a certificate of
7eligibility; providing an effective date.
8
9Be It Enacted by the Legislature of the State of Florida:
10
11     Section 1.  Section 943.059, Florida Statutes, is amended
12to read:
13     943.059  Court-ordered sealing of criminal history
14records.--
15     (1)  REQUIREMENTS AND RESTRICTIONS.--The courts of this
16state shall continue to have jurisdiction over their own
17procedures, including the maintenance, sealing, and correction
18of judicial records containing criminal history information to
19the extent such procedures are not inconsistent with the
20conditions, responsibilities, and duties established by this
21section. Any court of competent jurisdiction may order a
22criminal justice agency to seal the criminal history record of a
23minor or an adult who complies with the requirements of this
24section. The court shall not order a criminal justice agency to
25seal a criminal history record until the person seeking to seal
26a criminal history record has applied for and received a
27certificate of eligibility for sealing pursuant to subsection
28(3) or subsection (5) (2). A criminal history record that
29relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
30chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s.
31825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s.
32847.0145, s. 893.135, s. 916.1075, a violation enumerated in s.
33907.041, or any violation specified as a predicate offense for
34registration as a sexual predator pursuant to s. 775.21, without
35regard to whether that offense alone is sufficient to require
36such registration, or for registration as a sexual offender
37pursuant to s. 943.0435, may not be sealed, without regard to
38whether adjudication was withheld, if the defendant was found
39guilty of or pled guilty or nolo contendere to the offense, or
40if the defendant, as a minor, was found to have committed or
41pled guilty or nolo contendere to committing the offense as a
42delinquent act. The court may only order sealing of a criminal
43history record pertaining to one arrest or one incident of
44alleged criminal activity, except as provided in this section.
45The court may, at its sole discretion, order the sealing of a
46criminal history record pertaining to more than one arrest if
47the additional arrests directly relate to the original arrest.
48If the court intends to order the sealing of records pertaining
49to such additional arrests, such intent must be specified in the
50order. A criminal justice agency may not seal any record
51pertaining to such additional arrests if the order to seal does
52not articulate the intention of the court to seal records
53pertaining to more than one arrest. This section does not
54prevent the court from ordering the sealing of only a portion of
55a criminal history record pertaining to one arrest or one
56incident of alleged criminal activity. Notwithstanding any law
57to the contrary, a criminal justice agency may comply with laws,
58court orders, and official requests of other jurisdictions
59relating to sealing, correction, or confidential handling of
60criminal history records or information derived therefrom. This
61section does not confer any right to the sealing of any criminal
62history record, and any request for sealing a criminal history
63record may be denied at the sole discretion of the court.
64     (2)(1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Except
65as provided for in subsection (4), each petition to a court to
66seal a criminal history record is complete only when accompanied
67by:
68     (a)  A valid certificate of eligibility for sealing issued
69by the department pursuant to subsection (3) (2).
70     (b)  The petitioner's sworn statement attesting that the
71petitioner:
72     1.  Has never, prior to the date on which the petition is
73filed, been adjudicated guilty of a criminal offense or
74comparable ordinance violation, or been adjudicated delinquent
75for committing any felony or a misdemeanor specified in s.
76943.051(3)(b).
77     2.  Has not been adjudicated guilty of or adjudicated
78delinquent for committing any of the acts stemming from the
79arrest or alleged criminal activity to which the petition to
80seal pertains.
81     3.  Has never secured a prior sealing or expunction of a
82criminal history record under this section, former s. 893.14,
83former s. 901.33, former s. 943.058, or from any jurisdiction
84outside the state.
85     4.  Is eligible for such a sealing to the best of his or
86her knowledge or belief and does not have any other petition to
87seal or any petition to expunge pending before any court.
88
89Any person who knowingly provides false information on such
90sworn statement to the court commits a felony of the third
91degree, punishable as provided in s. 775.082, s. 775.083, or s.
92775.084.
93     (3)(2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
94petitioning the court to seal a criminal history record, a
95person seeking to seal a criminal history record shall apply to
96the department for a certificate of eligibility for sealing. The
97department shall, by rule adopted pursuant to chapter 120,
98establish procedures pertaining to the application for and
99issuance of certificates of eligibility for sealing. A
100certificate of eligibility for sealing is valid for 12 months
101after the date stamped on the certificate when issued by the
102department. After that time, the petitioner must reapply to the
103department for a new certificate of eligibility. Eligibility for
104a renewed certification of eligibility must be based on the
105status of the applicant and the law in effect at the time of the
106renewal application. Except as provided for in subsection (5),
107the department shall issue a certificate of eligibility for
108sealing to a person who is the subject of a criminal history
109record provided that such person:
110     (a)  Has submitted to the department a certified copy of
111the disposition of the charge to which the petition to seal
112pertains.
113     (b)  Remits a $75 processing fee to the department for
114placement in the Department of Law Enforcement Operating Trust
115Fund, unless such fee is waived by the executive director.
116     (c)  Has never, prior to the date on which the application
117for a certificate of eligibility is filed, been adjudicated
118guilty of a criminal offense or comparable ordinance violation,
119or been adjudicated delinquent for committing any felony or a
120misdemeanor specified in s. 943.051(3)(b).
121     (d)  Has not been adjudicated guilty of or adjudicated
122delinquent for committing any of the acts stemming from the
123arrest or alleged criminal activity to which the petition to
124seal pertains.
125     (e)  Has never secured a prior sealing or expunction of a
126criminal history record under this section, former s. 893.14,
127former s. 901.33, or former s. 943.058.
128     (f)  Is no longer under court supervision applicable to the
129disposition of the arrest or alleged criminal activity to which
130the petition to seal pertains.
131     (4)  PETITION TO SEAL A CRIMINAL HISTORY RECORD RELATING TO
132CERTAIN MISDEMEANORS.--
133     (a)  For purposes of this subsection and subsection (5),
134the term "specially sealable misdemeanor" means a misdemeanor
135violation of s. 562.11(2), s. 562.111, s. 806.101, s. 806.13, s.
136s. 810.08, s. 810.09, s. 810.10, s. 810.11, s. 810.115, s.
137810.13, s. 823.01, s. 823.02, s. 856.011, s. 856.015, s. 870.02,
138or chapter 893 in which the petitioner was adjudicated guilty or
139delinquent.
140     (b)  Each petition to a court to seal a criminal history
141record that relates to a specially sealable misdemeanor is
142complete only when accompanied by:
143     1.  A valid certificate of eligibility for sealing issued
144by 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
147delinquent for committing a specially sealable misdemeanor to
148which the petition to seal pertains, the petitioner has never,
149prior to the date on which the petition is filed, been
150adjudicated guilty of a criminal offense or comparable ordinance
151violation or been adjudicated delinquent for committing any
152felony or a misdemeanor specified in s. 943.051(3)(b).
153     b.  The petitioner was adjudicated guilty or delinquent of
154a specially sealable misdemeanor to which the petition pertains
155more than 10 years prior to the date on which the petition is
156filed.
157     c.  The petitioner has never secured a prior sealing or
158expunction of a criminal history record under this section,
159former s. 893.14, former s. 901.33, or former s. 943.058, or
160from any jurisdiction outside the state.
161     d.  The petitioner is eligible for such a sealing to the
162best of his or her knowledge or belief and does not have any
163other petition to seal or any petition to expunge pending before
164any court.
165
166Any person who knowingly provides false information on such
167sworn statement to the court commits a felony of the third
168degree, punishable as provided in s. 775.082, s. 775.083, or s.
169775.084.
170     (5)  CERTIFICATE OF ELIGIBILITY FOR SEALING A CRIMINAL
171HISTORY RECORD RELATING TO CERTAIN MISDEMEANORS.--Prior to
172petitioning the court to seal a criminal history record relating
173to a specially sealable misdemeanor, a person seeking to seal a
174criminal history record shall apply to the department for a
175certificate of eligibility for sealing. The department shall, by
176rule adopted pursuant to chapter 120, establish procedures
177pertaining to the application for and issuance of certificates
178of eligibility for sealing. The department shall endeavor to
179make forms and procedures as simple to use as possible in order
180to facilitate applicants who are proceeding without assistance.
181A certificate of eligibility for sealing is valid for 12 months
182after the date stamped on the certificate when issued by the
183department. After that time, the petitioner must reapply to the
184department for a new certificate of eligibility. Eligibility for
185a renewed certification of eligibility must be based on the
186status of the applicant and the law in effect at the time of the
187renewal application. The department shall issue a certificate of
188eligibility for sealing to a person who is the subject of a
189criminal history record provided that such person:
190     (a)  Has submitted to the department a certified copy of
191the disposition of the charge to which the petition to seal
192pertains.
193     (b)  Remits a $75 processing fee to the department for
194placement in the Department of Law Enforcement Operating Trust
195Fund, unless such fee is waived by the executive director.
196     (c)  With the exception of being adjudicated guilty or
197delinquent for committing a misdemeanor violation of a provision
198listed in paragraph (4)(a) to which the petition to seal
199pertains, has never, prior to the date on which the application
200for a certificate of eligibility is filed, been adjudicated
201guilty of a criminal offense or comparable ordinance violation
202or been adjudicated delinquent for committing any felony or a
203misdemeanor specified in s. 943.051(3)(b).
204     (d)  Was adjudicated guilty or delinquent for a specially
205sealable misdemeanor to which the petition pertains more than 10
206years prior to the date on which the petition is filed.
207     (e)  Has never secured a prior sealing or expunction of a
208criminal history record under this section, former s. 893.14,
209former s. 901.33, or former s. 943.058.
210     (f)  Is no longer under court supervision applicable to the
211disposition of the arrest or alleged criminal activity to which
212the 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
215the completed petition to seal shall be served upon the
216appropriate state attorney or the statewide prosecutor and upon
217the arresting agency; however, it is not necessary to make any
218agency other than the state a party. The appropriate state
219attorney or the statewide prosecutor and the arresting agency
220may respond to the court regarding the completed petition to
221seal.
222     (b)  If relief is granted by the court, the clerk of the
223court shall certify copies of the order to the appropriate state
224attorney or the statewide prosecutor and to the arresting
225agency. The arresting agency is responsible for forwarding the
226order to any other agency to which the arresting agency
227disseminated the criminal history record information to which
228the order pertains. The department shall forward the order to
229seal to the Federal Bureau of Investigation. The clerk of the
230court shall certify a copy of the order to any other agency
231which the records of the court reflect has received the criminal
232history record from the court.
233     (c)  For an order to seal entered by a court prior to July
2341, 1992, the department shall notify the appropriate state
235attorney or statewide prosecutor of any order to seal which is
236contrary to law because the person who is the subject of the
237record has previously been convicted of a crime or comparable
238ordinance violation or has had a prior criminal history record
239sealed or expunged. Upon receipt of such notice, the appropriate
240state attorney or statewide prosecutor shall take action, within
24160 days, to correct the record and petition the court to void
242the order to seal. The department shall seal the record until
243such time as the order is voided by the court.
244     (d)  On or after July 1, 1992, the department or any other
245criminal justice agency is not required to act on an order to
246seal entered by a court when such order does not comply with the
247requirements of this section. Upon receipt of such an order, the
248department must notify the issuing court, the appropriate state
249attorney or statewide prosecutor, the petitioner or the
250petitioner's attorney, and the arresting agency of the reason
251for noncompliance. The appropriate state attorney or statewide
252prosecutor shall take action within 60 days to correct the
253record and petition the court to void the order. No cause of
254action, including contempt of court, shall arise against any
255criminal justice agency for failure to comply with an order to
256seal when the petitioner for such order failed to obtain the
257certificate of eligibility as required by this section or when
258such order does not comply with the requirements of this
259section.
260     (e)  An order sealing a criminal history record pursuant to
261this section does not require that such record be surrendered to
262the court, and such record shall continue to be maintained by
263the department and other criminal justice agencies.
264     (7)(4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
265criminal history record of a minor or an adult which is ordered
266sealed by a court of competent jurisdiction pursuant to this
267section is confidential and exempt from the provisions of s.
268119.07(1) and s. 24(a), Art. I of the State Constitution and is
269available only to the person who is the subject of the record,
270to the subject's attorney, to criminal justice agencies for
271their respective criminal justice purposes, which include
272conducting a criminal history background check for approval of
273firearms purchases or transfers as authorized by state or
274federal law, or to those entities set forth in subparagraphs
275(a)1., 4., 5., 6., and 8. for their respective licensing, access
276authorization, and employment purposes.
277     (a)  The subject of a criminal history record sealed under
278this section or under other provisions of law, including former
279s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
280deny or fail to acknowledge the arrests covered by the sealed
281record, except when the subject of the record:
282     1.  Is a candidate for employment with a criminal justice
283agency;
284     2.  Is a defendant in a criminal prosecution;
285     3.  Concurrently or subsequently petitions for relief under
286this 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
289with the Department of Children and Family Services or the
290Department of Juvenile Justice or to be employed or used by such
291contractor or licensee in a sensitive position having direct
292contact with children, the developmentally disabled, the aged,
293or the elderly as provided in s. 110.1127(3), s. 393.063, s.
294394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
295409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s.
296985.644, chapter 400, or chapter 429;
297     6.  Is seeking to be employed or licensed by the Department
298of Education, any district school board, any university
299laboratory school, any charter school, any private or parochial
300school, or any local governmental entity that licenses child
301care facilities;
302     7.  Is attempting to purchase a firearm from a licensed
303importer, licensed manufacturer, or licensed dealer and is
304subject to a criminal history background check under state or
305federal law; or
306     8.  Is seeking authorization from a Florida seaport
307identified in s. 311.09 for employment within or access to one
308or more of such seaports pursuant to s. 311.12 or s. 311.125.
309     (b)  Subject to the exceptions in paragraph (a), a person
310who has been granted a sealing under this section, former s.
311893.14, former s. 901.33, or former s. 943.058 may not be held
312under any provision of law of this state to commit perjury or to
313be otherwise liable for giving a false statement by reason of
314such person's failure to recite or acknowledge a sealed criminal
315history record.
316     (c)  Information relating to the existence of a sealed
317criminal record provided in accordance with the provisions of
318paragraph (a) is confidential and exempt from the provisions of
319s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
320except that the department shall disclose the sealed criminal
321history record to the entities set forth in subparagraphs (a)1.,
3224., 5., 6., and 8. for their respective licensing, access
323authorization, and employment purposes. It is unlawful for any
324employee of an entity set forth in subparagraph (a)1.,
325subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
326subparagraph (a)8. to disclose information relating to the
327existence of a sealed criminal history record of a person
328seeking employment, access authorization, or licensure with such
329entity or contractor, except to the person to whom the criminal
330history record relates or to persons having direct
331responsibility for employment, access authorization, or
332licensure decisions. Any person who violates the provisions of
333this paragraph commits a misdemeanor of the first degree,
334punishable as provided in s. 775.082 or s. 775.083.
335     (8)(5)  STATUTORY REFERENCES.--Any reference to any other
336chapter, section, or subdivision of the Florida Statutes in this
337section constitutes a general reference under the doctrine of
338incorporation by reference.
339     Section 2.  This act shall take effect July 1, 2007.


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