1

The Committee on Criminal Justice (Dockery) recommended the

2

following amendment:

3

4

     Senate Amendment (with title amendment)

5

     Delete everything after the enacting clause

6

and insert:

7

     Section 1.  Section 943.0561, Florida Statutes, is created

8

to read:

9

     943.0561 Unlawful dissemination of sealed or expunged

10

criminal records by private sector third-party background

11

screening companies.-

12

     (1) The Legislature finds that issues of information

13

quality in criminal history databases, whether commercial or

14

state, require adequate privacy safeguards that provide

15

individuals a meaningful opportunity to correct inaccurate or

16

incomplete information before it has an adverse effect on an

17

employment or licensure opportunity. Providing a process for

18

appealing incorrect or incomplete records will enhance

19

individual protections for privacy and the fair use of the

20

information.

21

     (2) It is unlawful for any person, business, corporation,

22

partnership, or other private entity to knowingly make

23

available, lend, donate, or sell any criminal history record

24

obtained from the Department of Law Enforcement or any local,

25

county, or state entity, which has been sealed or expunged or

26

otherwise made exempt from public dissemination pursuant to s.

27

943.059.

28

     (3) Any person who is aggrieved by a violation of this

29

section or disputes the unlawful dissemination of a sealed or

30

expunged record may contact the private entity and request a

31

correction of information. A record correction must be requested

32

in writing by certified mail to the entity. Once received, the

33

person, business, corporation, partnership, or other private

34

entity who disseminated the disputed record must conduct an

35

investigation within 30 days of receipt of the correction

36

request, unless the dispute is deemed frivolous. The private

37

entity must send to the person requesting the correction a

38

written investigation report and a copy of the revised criminal

39

history record if changes were made. The person requesting the

40

correction may also request that revised criminal history

41

records be sent to recent recipients.

42

     (4) A person who knowingly violates subsection (2) shall

43

be guilty of a misdemeanor of the first degree, punishable as

44

provide in s. 775.082 or s. 775.083.

45

     (5) No person, business, corporation, partnership, or

46

private entity may be held civilly liable for disseminating a

47

disputed record, made in good faith pursuant to this subsection.

48

     Section 2.  Section 943.0581, Florida Statutes, is amended

49

to read:

50

     943.0581  Administrative expunction.--

51

     (1)  Notwithstanding any law dealing generally with the

52

preservation and destruction of public records, the department

53

may provide, by rule adopted pursuant to chapter 120, for the

54

administrative expunction of any nonjudicial record of an arrest

55

of a minor or an adult made contrary to law or by mistake.

56

     (2)  A law enforcement agency shall apply to the department

57

in the manner prescribed by rule for the administrative

58

expunction of any nonjudicial record of any arrest of a minor or

59

an adult who is subsequently determined by the agency, at its

60

discretion, or by the final order of a court of competent

61

jurisdiction, to have been arrested contrary to law or by

62

mistake.

63

     (3)  An adult or, in the case of a minor child, the parent

64

or legal guardian of the minor child, may apply to the

65

department in the manner prescribed by rule for the

66

administrative expunction of any nonjudicial record of an arrest

67

alleged to have been made contrary to law or by mistake,

68

provided that the application is supported by the endorsement of

69

the head of the arresting agency or his or her designee or the

70

state attorney or his or her designee of the judicial circuit in

71

which the arrest occurred.

72

     (4)  An application for administrative expunction shall

73

include an affidavit executed by the chief of the law

74

enforcement agency, sheriff, or department head of the state law

75

enforcement agency in which the affiant verifies that he or she

76

has reviewed the record of the arrest and that the arrest was

77

contrary to law or was a mistake. The affidavit shall include

78

the date and time of the arrest, the name of the arresting

79

officer, the name of the person arrested, and the crime or

80

crimes charged, and the offender based tracking system number.

81

The application shall be on the submitting agency's letterhead.

82

     (5) In the case of persons arrested on a warrant, capias

83

or pick-up order, the request for an administrative expunction

84

may be made by the sheriff or his or her designee of the county

85

where the warrant, capias or pick-up order was issued or by the

86

state attorney or his or her designee of the judicial circuit

87

where the warrant, capias or pick-up order was issued.

88

     (6)(5) No application, or endorsement, or affidavit made

89

under this section shall be admissible as evidence in any

90

judicial or administrative proceeding or otherwise be construed

91

in any way as an admission of liability in connection with an

92

arrest.

93

     Section 3.  Section 943.0585, Florida Statutes, is amended

94

to read:

95

     943.0585  Court-ordered expunction of criminal history

96

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

97

own procedures, including the maintenance, expunction, and

98

correction of judicial records containing criminal history

99

information to the extent such procedures are not inconsistent

100

with the conditions, responsibilities, and duties established by

101

this section. Any court of competent jurisdiction may order a

102

criminal justice agency to expunge the criminal history record

103

of a minor or an adult who complies with the requirements of

104

this section. The court shall not order a criminal justice

105

agency to expunge a criminal history record until the person

106

seeking to expunge a criminal history record has applied for and

107

received a certificate of eligibility for expunction pursuant to

108

subsection (2). A criminal history record that relates to a

109

violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,

110

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

111

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

112

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

113

any violation specified as a predicate offense for registration

114

as a sexual predator pursuant to s. 775.21, without regard to

115

whether that offense alone is sufficient to require such

116

registration, or for registration as a sexual offender pursuant

117

to s. 943.0435, may not be expunged, without regard to whether

118

adjudication was withheld, if the defendant was found guilty of

119

or pled guilty or nolo contendere to the offense, or if the

120

defendant, as a minor, was found to have committed, or pled

121

guilty or nolo contendere to committing, the offense as a

122

delinquent act. The court may only order expunction of a

123

criminal history record pertaining to one arrest or one incident

124

of alleged criminal activity, except as provided in this

125

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

126

expunction of a criminal history record pertaining to more than

127

one arrest if the additional arrests directly relate to the

128

original arrest. If the court intends to order the expunction of

129

records pertaining to such additional arrests, such intent must

130

be specified in the order. A criminal justice agency may not

131

expunge any record pertaining to such additional arrests if the

132

order to expunge does not articulate the intention of the court

133

to expunge a record pertaining to more than one arrest. This

134

section does not prevent the court from ordering the expunction

135

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

136

arrest or one incident of alleged criminal activity.

137

Notwithstanding any law to the contrary, a criminal justice

138

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

139

of other jurisdictions relating to expunction, correction, or

140

confidential handling of criminal history records or information

141

derived therefrom. This section does not confer any right to the

142

expunction of any criminal history record, and any request for

143

expunction of a criminal history record may be denied at the

144

sole discretion of the court.

145

     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each

146

petition to a court to expunge a criminal history record is

147

complete only when accompanied by:

148

     (a)  A valid certificate of eligibility for expunction

149

issued by the department pursuant to subsection (2).

150

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

151

petitioner:

152

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

153

filed, been adjudicated guilty of a criminal offense or

154

comparable ordinance violation, or been adjudicated delinquent

155

for committing any felony or a misdemeanor specified in s.

156

943.051(3)(b).

157

     2.  Has not been adjudicated guilty of, or adjudicated

158

delinquent for committing, any of the acts stemming from the

159

arrest or alleged criminal activity to which the petition

160

pertains.

161

     3.  Has never secured a prior sealing or expunction of a

162

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

163

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

164

outside the state, unless expunction is sought of a criminal

165

history record previously sealed for 10 years pursuant to

166

paragraph (2)(h) and the record is otherwise eligible for

167

expunction.

168

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

169

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

170

to expunge or any petition to seal pending before any court.

171

172

Any person who knowingly provides false information on such

173

sworn statement to the court commits a felony of the third

174

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

175

775.084.

176

     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to

177

petitioning the court to expunge a criminal history record, a

178

person seeking to expunge a criminal history record shall apply

179

to the department for a certificate of eligibility for

180

expunction. The department shall, by rule adopted pursuant to

181

chapter 120, establish procedures pertaining to the application

182

for and issuance of certificates of eligibility for expunction.

183

A certificate of eligibility for expunction is valid for 12

184

months after the date stamped on the certificate when issued by

185

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

186

the department for a new certificate of eligibility. Eligibility

187

for a renewed certification of eligibility must be based on the

188

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

189

renewal application. The department shall issue a certificate of

190

eligibility for expunction to a person who is the subject of a

191

criminal history record if that person:

192

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

193

written, certified statement from the appropriate state attorney

194

or statewide prosecutor which indicates:

195

     1.  That an indictment, information, or other charging

196

document was not filed or issued in the case.

197

     2.  That an indictment, information, or other charging

198

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

199

prosequi by the state attorney or statewide prosecutor, or was

200

dismissed by a court of competent jurisdiction, and that none of

201

the charges related to the arrest or alleged criminal activity

202

to which the petition to expunge pertains resulted in a trial,

203

without regard to whether the outcome of the trial was other

204

than an adjudication of guilt.

205

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

206

violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,

207

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

208

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

209

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

210

any violation specified as a predicate offense for registration

211

as a sexual predator pursuant to s. 775.21, without regard to

212

whether that offense alone is sufficient to require such

213

registration, or for registration as a sexual offender pursuant

214

to s. 943.0435, where the defendant was found guilty of, or pled

215

guilty or nolo contendere to any such offense, or that the

216

defendant, as a minor, was found to have committed, or pled

217

guilty or nolo contendere to committing, such an offense as a

218

delinquent act, without regard to whether adjudication was

219

withheld.

220

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

221

placement in the Department of Law Enforcement Operating Trust

222

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

223

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

224

the disposition of the charge to which the petition to expunge

225

pertains.

226

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

227

for a certificate of eligibility is filed, been adjudicated

228

guilty of a criminal offense or comparable ordinance violation,

229

or been adjudicated delinquent for committing any felony or a

230

misdemeanor specified in s. 943.051(3)(b).

231

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

232

delinquent for committing, any of the acts stemming from the

233

arrest or alleged criminal activity to which the petition to

234

expunge pertains.

235

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

236

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

237

former s. 901.33, or former s. 943.058, unless expunction is

238

sought of a criminal history record previously sealed for 10

239

years pursuant to paragraph (h) and the record is otherwise

240

eligible for expunction.

241

     (g)  Is no longer under court supervision applicable to the

242

disposition of the arrest or alleged criminal activity to which

243

the petition to expunge pertains.

244

     (h)  Has previously obtained a court order sealing the

245

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

246

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

247

adjudication was withheld or because all charges related to the

248

arrest or alleged criminal activity to which the petition to

249

expunge pertains were not dismissed prior to trial, without

250

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

251

adjudication of guilt. The requirement for the record to have

252

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

253

when a plea was not entered or all charges related to the arrest

254

or alleged criminal activity to which the petition to expunge

255

pertains were dismissed prior to trial.

256

Each Clerk of Court shall place information on his or her

257

Internet web site about the availability of criminal history

258

sealing and expunction. This information shall include a link to

259

the department's web pages for criminal history seal and expunge

260

information and applications.

261

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

262

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

263

the completed petition to expunge shall be served upon the

264

appropriate state attorney or the statewide prosecutor and upon

265

the arresting agency; however, it is not necessary to make any

266

agency other than the state a party. The appropriate state

267

attorney or the statewide prosecutor and the arresting agency

268

may respond to the court regarding the completed petition to

269

expunge.

270

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

271

court shall certify copies of the order to the appropriate state

272

attorney or the statewide prosecutor and the arresting agency.

273

The arresting agency is responsible for forwarding the order to

274

any other agency to which the arresting agency disseminated the

275

criminal history record information to which the order pertains.

276

The department shall forward the order to expunge to the Federal

277

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

278

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

279

court reflect has received the criminal history record from the

280

court.

281

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

282

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

283

attorney or statewide prosecutor of an order to expunge which is

284

contrary to law because the person who is the subject of the

285

record has previously been convicted of a crime or comparable

286

ordinance violation or has had a prior criminal history record

287

sealed or expunged. Upon receipt of such notice, the appropriate

288

state attorney or statewide prosecutor shall take action, within

289

60 days, to correct the record and petition the court to void

290

the order to expunge. The department shall seal the record until

291

such time as the order is voided by the court.

292

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

293

criminal justice agency is not required to act on an order to

294

expunge entered by a court when such order does not comply with

295

the requirements of this section. Upon receipt of such an order,

296

the department must notify the issuing court, the appropriate

297

state attorney or statewide prosecutor, the petitioner or the

298

petitioner's attorney, and the arresting agency of the reason

299

for noncompliance. The appropriate state attorney or statewide

300

prosecutor shall take action within 60 days to correct the

301

record and petition the court to void the order. No cause of

302

action, including contempt of court, shall arise against any

303

criminal justice agency for failure to comply with an order to

304

expunge when the petitioner for such order failed to obtain the

305

certificate of eligibility as required by this section or such

306

order does not otherwise comply with the requirements of this

307

section.

308

     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

309

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

310

expunged by a court of competent jurisdiction pursuant to this

311

section must be physically destroyed or obliterated by any

312

criminal justice agency having custody of such record; except

313

that any criminal history record in the custody of the

314

department must be retained in all cases. A criminal history

315

record ordered expunged that is retained by the department is

316

confidential and exempt from the provisions of s. 119.07(1) and

317

s. 24(a), Art. I of the State Constitution and not available to

318

any person or entity except upon order of a court of competent

319

jurisdiction. A criminal justice agency may retain a notation

320

indicating compliance with an order to expunge.

321

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

322

record that is expunged under this section or under other

323

provisions of law, including former s. 893.14, former s. 901.33,

324

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

325

the arrests and subsequent dispositions covered by the expunged

326

record, except when the subject of the record:

327

     1.  Is a candidate for employment with a criminal justice

328

agency;

329

     2.  Is a defendant in a criminal prosecution;

330

     3.  Concurrently or subsequently petitions for relief under

331

this section or s. 943.059;

332

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

333

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

334

with the Department of Children and Family Services or the

335

Department of Juvenile Justice or to be employed or used by such

336

contractor or licensee in a sensitive position having direct

337

contact with children, the developmentally disabled, the aged,

338

or the elderly as provided in s. 110.1127(3), s. 393.063, s.

339

394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

340

409.175(2)(i), s. 415.102(4), chapter 916, s. 985.644, chapter

341

400, or chapter 429;

342

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

343

of Education, any district school board, any university

344

laboratory school, any charter school, any private or parochial

345

school, or any local governmental entity that licenses child

346

care facilities; or

347

     7.  Is seeking authorization from a Florida seaport

348

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

349

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

350

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

351

who has been granted an expunction under this section, former s.

352

893.14, former s. 901.33, or former s. 943.058 may not be held

353

under any provision of law of this state to commit perjury or to

354

be otherwise liable for giving a false statement by reason of

355

such person's failure to recite or acknowledge an expunged

356

criminal history record, including when asked on an employment

357

application.

358

     (c)  Information relating to the existence of an expunged

359

criminal history record which is provided in accordance with

360

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

361

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

362

except that the department shall disclose the existence of a

363

criminal history record ordered expunged to the entities set

364

forth in subparagraphs (a)1., 4., 5., 6., and 7. for their

365

respective licensing, access authorization, and employment

366

purposes, and to criminal justice agencies for their respective

367

criminal justice purposes. It is unlawful for any employee of an

368

entity set forth in subparagraph (a)1., subparagraph (a)4.,

369

subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to

370

disclose information relating to the existence of an expunged

371

criminal history record of a person seeking employment, access

372

authorization, or licensure with such entity or contractor,

373

except to the person to whom the criminal history record relates

374

or to persons having direct responsibility for employment,

375

access authorization, or licensure decisions. Any person who

376

violates this paragraph commits a misdemeanor of the first

377

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

378

(d) The contents of an expunged record may be disclosed by the

379

department upon the receipt of the written, notarized request

380

from the subject of the record.

381

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

382

chapter, section, or subdivision of the Florida Statutes in this

383

section constitutes a general reference under the doctrine of

384

incorporation by reference.

385

     Section 4.  Section 943.059, Florida Statutes, is amended

386

to read:

387

     943.059  Court-ordered sealing of criminal history

388

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

389

jurisdiction over their own procedures, including the

390

maintenance, sealing, and correction of judicial records

391

containing criminal history information to the extent such

392

procedures are not inconsistent with the conditions,

393

responsibilities, and duties established by this section. Any

394

court of competent jurisdiction may order a criminal justice

395

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

396

adult who complies with the requirements of this section. The

397

court shall not order a criminal justice agency to seal a

398

criminal history record until the person seeking to seal a

399

criminal history record has applied for and received a

400

certificate of eligibility for sealing pursuant to subsection

401

(2). A criminal history record that relates to a violation of s.

402

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

403

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

404

839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

405

916.1075, a violation enumerated in s. 907.041, or any violation

406

specified as a predicate offense for registration as a sexual

407

predator pursuant to s. 775.21, without regard to whether that

408

offense alone is sufficient to require such registration, or for

409

registration as a sexual offender pursuant to s. 943.0435, may

410

not be sealed, without regard to whether adjudication was

411

withheld, if the defendant was found guilty of or pled guilty or

412

nolo contendere to the offense, or if the defendant, as a minor,

413

was found to have committed or pled guilty or nolo contendere to

414

committing the offense as a delinquent act. The court may only

415

order sealing of a criminal history record pertaining to one

416

arrest or one incident of alleged criminal activity, except as

417

provided in this section. The court may, at its sole discretion,

418

order the sealing of a criminal history record pertaining to

419

more than one arrest if the additional arrests directly relate

420

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

421

sealing of records pertaining to such additional arrests, such

422

intent must be specified in the order. A criminal justice agency

423

may not seal any record pertaining to such additional arrests if

424

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

425

to seal records pertaining to more than one arrest. This section

426

does not prevent the court from ordering the sealing of only a

427

portion of a criminal history record pertaining to one arrest or

428

one incident of alleged criminal activity. Notwithstanding any

429

law to the contrary, a criminal justice agency may comply with

430

laws, court orders, and official requests of other jurisdictions

431

relating to sealing, correction, or confidential handling of

432

criminal history records or information derived therefrom. This

433

section does not confer any right to the sealing of any criminal

434

history record, and any request for sealing a criminal history

435

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

436

     (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

437

petition to a court to seal a criminal history record is

438

complete only when accompanied by:

439

     (a)  A valid certificate of eligibility for sealing issued

440

by the department pursuant to subsection (2).

441

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

442

petitioner:

443

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

444

filed, been adjudicated guilty of a criminal offense or

445

comparable ordinance violation, or been adjudicated delinquent

446

for committing any felony or a misdemeanor specified in s.

447

943.051(3)(b).

448

     2.  Has not been adjudicated guilty of or adjudicated

449

delinquent for committing any of the acts stemming from the

450

arrest or alleged criminal activity to which the petition to

451

seal pertains.

452

     3. Has never secured a prior sealing, except as provided

453

in subsection(6), or expunction of a criminal history record

454

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

455

s. 943.058, or from any jurisdiction outside the state.

456

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

457

her knowledge or belief and does not have any other petition to

458

seal or any petition to expunge pending before any court.

459

460

Any person who knowingly provides false information on such

461

sworn statement to the court commits a felony of the third

462

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

463

775.084.

464

     (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

465

petitioning the court to seal a criminal history record, a

466

person seeking to seal a criminal history record shall apply to

467

the department for a certificate of eligibility for sealing. The

468

department shall, by rule adopted pursuant to chapter 120,

469

establish procedures pertaining to the application for and

470

issuance of certificates of eligibility for sealing. A

471

certificate of eligibility for sealing is valid for 12 months

472

after the date stamped on the certificate when issued by the

473

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

474

department for a new certificate of eligibility. Eligibility for

475

a renewed certification of eligibility must be based on the

476

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

477

renewal application. The department shall issue a certificate of

478

eligibility for sealing to a person who is the subject of a

479

criminal history record provided that such person:

480

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

481

the disposition of the charge to which the petition to seal

482

pertains.

483

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

484

placement in the Department of Law Enforcement Operating Trust

485

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

486

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

487

for a certificate of eligibility is filed, been adjudicated

488

guilty of a criminal offense or comparable ordinance violation,

489

or been adjudicated delinquent for committing any felony or a

490

misdemeanor specified in s. 943.051(3)(b).

491

     (d)  Has not been adjudicated guilty of or adjudicated

492

delinquent for committing any of the acts stemming from the

493

arrest or alleged criminal activity to which the petition to

494

seal pertains.

495

     (e) Has never secured a prior sealing, except as provided

496

in subsection (6), or expunction of a criminal history record

497

under this section, former s. 893.14, former s. 901.33, or

498

former s. 943.058.

499

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

500

disposition of the arrest or alleged criminal activity to which

501

the petition to seal pertains.

502

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

503

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

504

the completed petition to seal shall be served upon the

505

appropriate state attorney or the statewide prosecutor and upon

506

the arresting agency; however, it is not necessary to make any

507

agency other than the state a party. The appropriate state

508

attorney or the statewide prosecutor and the arresting agency

509

may respond to the court regarding the completed petition to

510

seal.

511

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

512

court shall certify copies of the order to the appropriate state

513

attorney or the statewide prosecutor and to the arresting

514

agency. The arresting agency is responsible for forwarding the

515

order to any other agency to which the arresting agency

516

disseminated the criminal history record information to which

517

the order pertains. The department shall forward the order to

518

seal to the Federal Bureau of Investigation. The clerk of the

519

court shall certify a copy of the order to any other agency

520

which the records of the court reflect has received the criminal

521

history record from the court.

522

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

523

1, 1992, the department shall notify the appropriate state

524

attorney or statewide prosecutor of any order to seal which is

525

contrary to law because the person who is the subject of the

526

record has previously been convicted of a crime or comparable

527

ordinance violation or has had a prior criminal history record

528

sealed, except as provided in subsection (6), or expunged. Upon

529

receipt of such notice, the appropriate state attorney or

530

statewide prosecutor shall take action, within 60 days, to

531

correct the record and petition the court to void the order to

532

seal. The department shall seal the record until such time as

533

the order is voided by the court.

534

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

535

criminal justice agency is not required to act on an order to

536

seal entered by a court when such order does not comply with the

537

requirements of this section. Upon receipt of such an order, the

538

department must notify the issuing court, the appropriate state

539

attorney or statewide prosecutor, the petitioner or the

540

petitioner's attorney, and the arresting agency of the reason

541

for noncompliance. The appropriate state attorney or statewide

542

prosecutor shall take action within 60 days to correct the

543

record and petition the court to void the order. No cause of

544

action, including contempt of court, shall arise against any

545

criminal justice agency for failure to comply with an order to

546

seal when the petitioner for such order failed to obtain the

547

certificate of eligibility as required by this section or when

548

such order does not comply with the requirements of this

549

section.

550

     (e)  An order sealing a criminal history record pursuant to

551

this section does not require that such record be surrendered to

552

the court, and such record shall continue to be maintained by

553

the department and other criminal justice agencies.

554

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

555

history record of a minor or an adult which is ordered sealed by

556

a court of competent jurisdiction pursuant to this section is

557

confidential and exempt from the provisions of s. 119.07(1) and

558

s. 24(a), Art. I of the State Constitution and is available only

559

to the person who is the subject of the record, to the subject's

560

attorney, to criminal justice agencies for their respective

561

criminal justice purposes, which include conducting a criminal

562

history background check for approval of firearms purchases or

563

transfers as authorized by state or federal law, or to those

564

entities set forth in subparagraphs (a)1., 4., 5., 6., and 8.

565

for their respective licensing, access authorization, and

566

employment purposes.

567

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

568

this section or under other provisions of law, including former

569

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

570

deny or fail to acknowledge the arrests and subsequent

571

dispositions covered by the sealed record, except when the

572

subject of the record:

573

     1.  Is a candidate for employment with a criminal justice

574

agency;

575

     2.  Is a defendant in a criminal prosecution;

576

     3.  Concurrently or subsequently petitions for relief under

577

this section or s. 943.0585;

578

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

579

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

580

with the Department of Children and Family Services or the

581

Department of Juvenile Justice or to be employed or used by such

582

contractor or licensee in a sensitive position having direct

583

contact with children, the developmentally disabled, the aged,

584

or the elderly as provided in s. 110.1127(3), s. 393.063, s.

585

394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.

586

409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s.

587

985.644, chapter 400, or chapter 429;

588

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

589

of Education, any district school board, any university

590

laboratory school, any charter school, any private or parochial

591

school, or any local governmental entity that licenses child

592

care facilities;

593

     7.  Is attempting to purchase a firearm from a licensed

594

importer, licensed manufacturer, or licensed dealer and is

595

subject to a criminal history background check under state or

596

federal law; or

597

     8.  Is seeking authorization from a Florida seaport

598

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

599

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

600

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

601

who has been granted a sealing under this section, former s.

602

893.14, former s. 901.33, or former s. 943.058 may not be held

603

under any provision of law of this state to commit perjury or to

604

be otherwise liable for giving a false statement by reason of

605

such person's failure to recite or acknowledge a sealed criminal

606

history record, including when asked on an employment

607

application.

608

     (c)  Information relating to the existence of a sealed

609

criminal record provided in accordance with the provisions of

610

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

611

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

612

except that the department shall disclose the sealed criminal

613

history record to the entities set forth in subparagraphs (a)1.,

614

4., 5., 6., and 8. for their respective licensing, access

615

authorization, and employment purposes. It is unlawful for any

616

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

617

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

618

subparagraph (a)8. to disclose information relating to the

619

existence of a sealed criminal history record of a person

620

seeking employment, access authorization, or licensure with such

621

entity or contractor, except to the person to whom the criminal

622

history record relates or to persons having direct

623

responsibility for employment, access authorization, or

624

licensure decisions. Any person who violates the provisions of

625

this paragraph commits a misdemeanor of the first degree,

626

punishable as provided in s. 775.082 or s. 775.083.

627

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

628

chapter, section, or subdivision of the Florida Statutes in this

629

section constitutes a general reference under the doctrine of

630

incorporation by reference.

631

(6) A person may petition the court to seek a sealing of his

632

criminal history record, after having secured one previous

633

expunction or sealing, under the following circumstances. Prior

634

to petitioning the court for such relief, a person shall apply

635

to the department to obtain a certificate of eligibility for a

636

sealing of his criminal history record only if five years have

637

passed without any subsequent arrests occurring since the date

638

of the court order for the initial criminal history record

639

expunction or sealing. All other provisions and requirements

640

under this section apply when a person seeks a second sealing of

641

his criminal history record.

642

     Section 5.  This act shall take effect July 1, 2008.

643

644

================ T I T L E  A M E N D M E N T ================

645

And the title is amended as follows:

646

     Delete everything before the enacting clause

647

and insert:

648

A bill to be entitled

649

An act relating to criminal history records; creating s.

650

943.0561, F.S.; specifying legislative intent; provides

651

that it is a first degree misdemeanor to disseminate

652

certain criminal history records which have been sealed or

653

expunged; providing a process to correct information on a

654

criminal history record; provides immunity from civil

655

liability; amending s. 943.0581, F.S., permitting either

656

the arresting agency or the agency where the warrant was

657

issued to request an administrative expunction; amending

658

s. 943.0585, F.S., requiring the Clerk of the Court to

659

place information about the availability of criminal

660

history sealing and expunction on his Internet web site,

661

including a link to the Department of Law Enforcement's

662

web pages related to such information; clarifying under

663

what circumstances a person can legally deny an expunged

664

criminal history record; authorizing disclosure of the

665

contents of an expunged record upon receipt of a written,

666

notarized request from the record subject; amending s.

667

943.059, F.S.; clarifying under what circumstances a

668

person can legally deny a sealed criminal history record;

669

providing that a person may petition the court to seek a

670

second criminal history record sealing under certain

671

circumstances; providing an effective date.

3/17/2008  8:20:00 AM     CJ.CJ.04326