Florida Senate - 2008 CS for SB 2152
By the Committees on Criminal Justice; Criminal Justice
591-06404A-08 20082152c1
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A bill to be entitled
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An act relating to criminal justice; providing legislative
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intent; requiring state agencies and regulatory boards to
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submit to legislative officers and committees a report
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that states current restrictions on the employment of ex-
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offenders and possible alternatives that are compatible
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with protecting the public safety; requiring that such a
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report be submitted biennially; amending s. 112.011, F.S.;
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providing that a person may not be disqualified from
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receiving a license, permit, or certificate or from
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obtaining public employment on the grounds that the
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person's civil rights have not been restored; providing
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that a person is not required to secure the restoration of
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his or her civil rights or prove that his or her civil
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rights have been restored in order to receive a license,
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permit, or certificate or to obtain public employment;
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amending s. 760.10, F.S.; prohibiting an employer from
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requesting, making, or keeping certain criminal history
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records; prohibiting the criminal prosecution for perjury
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in certain circumstances; amending s. 943.0581, F.S.;
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authorizing the arresting agency or the agency where the
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warrant was issued to request an administrative
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expunction; amending s. 943.0585, F.S.; requiring the
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clerk of the court to place information about the
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availability of criminal history sealing and expunction on
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the court's Internet website and provide a link to the
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Department of Law Enforcement's website related to such
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information; clarifying under what circumstances a person
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may legally deny an expunged criminal history record;
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authorizing disclosure of the contents of an expunged
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record upon receipt of a written, notarized request from
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the record subject; amending s. 943.059, F.S.; clarifying
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under what circumstances a person may legally deny a
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sealed criminal history record; authorizing a person to
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petition the court to seek a second criminal history
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record sealing under certain circumstances; requiring the
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Office of Program Policy Analysis and Government
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Accountability to conduct a study; specifying the research
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questions for the study; requiring a report to be
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submitted to the Legislature; providing an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Restrictions on the employment of ex-offenders;
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legislative intent; state agency reporting requirements.--
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(1) The Legislature declares that it is the policy of this
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state to provide to prospective employees a clear statement of
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which crimes would disqualify ex-offenders from which
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occupations. It is the intent of the Legislature to make
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opportunities for employment available to ex-offenders so that
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they will be less likely to revert to criminal behavior, insofar
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as the employment of such persons does not detract from the
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safety of the public. The Legislature further declares that state
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agencies should clearly state all restrictions imposed by the
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agencies or by boards that regulate professions and occupations
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on employment and should make an effort to establish that each
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such restriction is as limited as possible while continuing to
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support the goal of public safety.
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(2) Each state agency, including, but not limited to,
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professional and occupational regulatory boards, shall, by
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December 31, 2008, submit to the President of the Senate, the
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Speaker of the House of Representatives, and the chairs of the
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appropriate legislative committees a report that includes:
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(a) A list of all laws, rules, policies, and practices
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followed by the agency or imposed by the board which disqualify
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from employment persons who have been convicted of a crime and
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have completed any incarceration and restitution to which they
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have been sentenced for such a crime.
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(b) The conclusions resulting from a review of these laws,
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rules, policies, and practices which the agency has conducted,
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including, for each such law, rule, policy, and practice,
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documentation of whether it is clearly stated in writing and is
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readily available to prospective employees, and a statement of
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any less restrictive way to protect the safety of the public
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while simultaneously providing employment opportunities for ex-
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offenders.
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(c) If the restriction is based on a standard of good moral
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character, crimes or acts of moral turpitude, or crimes related
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to a specific occupation, proposed alternative wording of laws,
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rules, and policies which more precisely describes the basis for
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denial of employment.
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(d) Proposed ways of removing barriers to the employment of
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ex-offenders which are not mandated by statute.
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(e) Proposed statutory amendments that would reduce
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barriers to employment, render the remaining barriers optimally
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consistent among jobs that have very similar characteristics and
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require nearly identical degrees of trustworthiness and
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responsibility, and improve the clarity of requirements
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applicable to an ex-offender who seeks employment with a state
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agency or in an occupation regulated by a state board.
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(3) Beginning in 2011, each state agency shall submit a
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report in accordance with subsection (2) biennially by December
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31 of each odd-numbered year.
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Section 2. Section 112.011, Florida Statutes, is amended to
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read:
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112.011 Disqualification for licensing and public
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employment based on criminal conviction Felons; removal of
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disqualifications for employment, exceptions.--
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(1)(a) Except as provided in s. 775.16, a person may shall
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not be disqualified from employment by the state, any of its
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agencies or political subdivisions, or any municipality solely
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because of a prior conviction for a crime. However, a person may
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be denied employment by the state, any of its agencies or
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political subdivisions, or any municipality by reason of the
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prior conviction for a crime if the crime was a felony or first
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degree misdemeanor and directly related to the position of
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employment sought.
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(b) Except as provided in s. 775.16, a person whose civil
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rights have been restored shall not be disqualified to practice,
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pursue, or engage in any occupation, trade, vocation, profession,
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or business for which a license, permit, or certificate is
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required to be issued by the state, any of its agencies or
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political subdivisions, or any municipality solely because of a
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prior conviction for a crime. However, a person whose civil
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rights have been restored may be denied a license, permit, or
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certification to pursue, practice, or engage in an occupation,
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trade, vocation, profession, or business by reason of the prior
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conviction for a crime if the crime was a felony or first degree
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misdemeanor and directly related to the specific occupation,
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trade, vocation, profession, or business for which the license,
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permit, or certificate is sought.
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(c) Notwithstanding any law to the contrary, a person may
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not be disqualified from receiving a license, permit, or
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certificate or from obtaining public employment on the grounds
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that a person's civil rights have not been restored. A person is
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not required to secure the restoration of his or her civil rights
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or prove that his or her civil rights have been restored in order
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to receive a license, permit, or certificate or to obtain public
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employment.
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(2)(a) This section does shall not apply be applicable to
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any law enforcement or correctional agency.
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(b) This section does shall not apply be applicable to the
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employment practices of any fire department relating to the
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hiring of firefighters. An applicant for employment with any fire
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department who has with a prior felony conviction shall be
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excluded from employment for a period of 4 years after expiration
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of sentence or final release by the Parole Commission unless the
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applicant, prior to the expiration of the 4-year period, has
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received a full pardon or has had his or her civil rights
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restored.
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(c) This section does shall not apply be applicable to the
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employment practices of any county or municipality relating to
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the hiring of personnel for positions deemed to be critical to
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(3) Any complaint concerning the violation of this section
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shall be adjudicated in accordance with the procedures set forth
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in chapter 120 for administrative and judicial review.
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Section 3. Subsection (1) of section 760.10, Florida
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Statutes, is amended to read:
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760.10 Unlawful employment practices.--
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(1) It is an unlawful employment practice for an employer:
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(a) To discharge or to fail or refuse to hire any
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individual, or otherwise to discriminate against any individual
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with respect to compensation, terms, conditions, or privileges of
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employment, because of such individual's race, color, religion,
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sex, national origin, age, handicap, or marital status.
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(b) To limit, segregate, or classify employees or
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applicants for employment in any way which would deprive or tend
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to deprive any individual of employment opportunities, or
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adversely affect any individual's status as an employee, because
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of such individual's race, color, religion, sex, national origin,
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age, handicap, or marital status.
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(c) On and after July 1, 2009, with regard to an
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application for employment, to request any information, to make
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or keep a record of such information, to use any form of
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application or application blank that requests such information,
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or to exclude, limit, or otherwise discriminate against any
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person by reason of his or her failure to furnish such
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information through a written application or oral inquiry or
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otherwise regarding:
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1. An arrest, detention, or disposition regarding any
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violation of law in which no conviction resulted;
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2. A first and only conviction for any misdemeanor of the
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second degree; or
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3. Any conviction of a misdemeanor if the date of such
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conviction or the completion of any period of incarceration
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resulting therefrom, whichever date is later, occurred 5 or more
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years prior to the date of such application for employment or
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such request for information, unless such person has been
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convicted of any offense within 5 years immediately preceding the
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date of such application for employment or such request for
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information.
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No applicant for employment shall be held under any provision of
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any law to be guilty of perjury or of otherwise giving a false
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statement by reason of his or her failure to recite or
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acknowledge such information as he or she has a right to withhold
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under this paragraph.
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Section 4. Section 943.0581, Florida Statutes, is amended
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to read:
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943.0581 Administrative expunction.--
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(1) Notwithstanding any law dealing generally with the
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preservation and destruction of public records, the department
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may provide, by rule adopted pursuant to chapter 120, for the
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administrative expunction of any nonjudicial record of an arrest
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of a minor or an adult made contrary to law or by mistake.
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(2) A law enforcement agency shall apply to the department
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in the manner prescribed by rule for the administrative
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expunction of any nonjudicial record of any arrest of a minor or
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an adult who is subsequently determined by the agency, at its
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discretion, or by the final order of a court of competent
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jurisdiction, to have been arrested contrary to law or by
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mistake.
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(3) An adult or, in the case of a minor child, the parent
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or legal guardian of the minor child, may apply to the department
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in the manner prescribed by rule for the administrative
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expunction of any nonjudicial record of an arrest alleged to have
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been made contrary to law or by mistake, provided that the
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application is supported by the endorsement of the head of the
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arresting agency or his or her designee or the state attorney or
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his or her designee of the judicial circuit in which the arrest
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occurred.
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(4) An application for administrative expunction shall
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include an affidavit executed by the chief of the law enforcement
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agency, sheriff, or department head of the state law enforcement
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agency in which the affiant verifies that he or she has reviewed
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the record of the arrest and that the arrest was contrary to law
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or was a mistake. The affidavit shall include the date and time
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of the arrest, the name of the arresting officer, the name of the
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person arrested, and the crime or crimes charged, and the
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offender based tracking system number. The application shall be
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on the submitting agency's letterhead and signed by the head of
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the submitting agency or his or her designee.
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(5) In the case of a person arrested on a warrant, capias,
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or pick-up order, the request for an administrative expunction
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may be made by the sheriff or his or her designee of the county
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where the warrant, capias, or pick-up order was issued or by the
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state attorney or his or her designee of the judicial circuit
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where the warrant, capias, or pick-up order was issued.
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(6)(5) No application or, endorsement, or affidavit made
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under this section shall be admissible as evidence in any
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judicial or administrative proceeding or otherwise be construed
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in any way as an admission of liability in connection with an
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arrest.
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Section 5. Section 943.0585, Florida Statutes, is amended
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to read:
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943.0585 Court-ordered expunction of criminal history
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records.--The courts of this state have jurisdiction over their
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own procedures, including the maintenance, expunction, and
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correction of judicial records containing criminal history
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information to the extent such procedures are not inconsistent
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with the conditions, responsibilities, and duties established by
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this section. Any court of competent jurisdiction may order a
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criminal justice agency to expunge the criminal history record of
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a minor or an adult who complies with the requirements of this
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section. The court shall not order a criminal justice agency to
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expunge a criminal history record until the person seeking to
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expunge a criminal history record has applied for and received a
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certificate of eligibility for expunction pursuant to subsection
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(2). A criminal history record that relates to a violation of s.
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specified as a predicate offense for registration as a sexual
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predator pursuant to s. 775.21, without regard to whether that
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offense alone is sufficient to require such registration, or for
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registration as a sexual offender pursuant to s. 943.0435, may
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not be expunged, without regard to whether adjudication was
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withheld, if the defendant was found guilty of or pled guilty or
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nolo contendere to the offense, or if the defendant, as a minor,
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was found to have committed, or pled guilty or nolo contendere to
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committing, the offense as a delinquent act. The court may only
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order expunction of a criminal history record pertaining to one
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arrest or one incident of alleged criminal activity, except as
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provided in this section. The court may, at its sole discretion,
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order the expunction of a criminal history record pertaining to
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more than one arrest if the additional arrests directly relate to
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the original arrest. If the court intends to order the expunction
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of records pertaining to such additional arrests, such intent
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must be specified in the order. A criminal justice agency may not
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expunge any record pertaining to such additional arrests if the
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order to expunge does not articulate the intention of the court
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to expunge a record pertaining to more than one arrest. This
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section does not prevent the court from ordering the expunction
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of only a portion of a criminal history record pertaining to one
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arrest or one incident of alleged criminal activity.
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Notwithstanding any law to the contrary, a criminal justice
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agency may comply with laws, court orders, and official requests
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of other jurisdictions relating to expunction, correction, or
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confidential handling of criminal history records or information
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derived therefrom. This section does not confer any right to the
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expunction of any criminal history record, and any request for
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expunction of a criminal history record may be denied at the sole
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discretion of the court.
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(1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each
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petition to a court to expunge a criminal history record is
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complete only when accompanied by:
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(a) A valid certificate of eligibility for expunction
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issued by the department pursuant to subsection (2).
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(b) The petitioner's sworn statement attesting that the
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petitioner:
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1. Has never, prior to the date on which the petition is
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filed, been adjudicated guilty of a criminal offense or
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comparable ordinance violation, or been adjudicated delinquent
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for committing any felony or a misdemeanor specified in s.
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943.051(3)(b).
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2. Has not been adjudicated guilty of, or adjudicated
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delinquent for committing, any of the acts stemming from the
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arrest or alleged criminal activity to which the petition
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pertains.
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3. Has never secured a prior sealing or expunction of a
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criminal history record under this section, former s. 893.14,
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former s. 901.33, or former s. 943.058, or from any jurisdiction
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outside the state, unless expunction is sought of a criminal
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history record previously sealed for 10 years pursuant to
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paragraph (2)(h) and the record is otherwise eligible for
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expunction.
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4. Is eligible for such an expunction to the best of his or
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her knowledge or belief and does not have any other petition to
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expunge or any petition to seal pending before any court.
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Any person who knowingly provides false information on such sworn
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statement to the court commits a felony of the third degree,
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(2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to
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petitioning the court to expunge a criminal history record, a
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person seeking to expunge a criminal history record shall apply
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to the department for a certificate of eligibility for
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expunction. The department shall, by rule adopted pursuant to
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chapter 120, establish procedures pertaining to the application
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for and issuance of certificates of eligibility for expunction. A
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certificate of eligibility for expunction is valid for 12 months
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after the date stamped on the certificate when issued by the
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department. After that time, the petitioner must reapply to the
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department for a new certificate of eligibility. Eligibility for
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a renewed certification of eligibility must be based on the
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status of the applicant and the law in effect at the time of the
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renewal application. The department shall issue a certificate of
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eligibility for expunction to a person who is the subject of a
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criminal history record if that person:
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(a) Has obtained, and submitted to the department, a
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written, certified statement from the appropriate state attorney
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or statewide prosecutor which indicates:
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1. That an indictment, information, or other charging
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document was not filed or issued in the case.
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2. That an indictment, information, or other charging
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document, if filed or issued in the case, was dismissed or nolle
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prosequi by the state attorney or statewide prosecutor, or was
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dismissed by a court of competent jurisdiction, and that none of
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the charges related to the arrest or alleged criminal activity to
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which the petition to expunge pertains resulted in a trial,
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without regard to whether the outcome of the trial was other than
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an adjudication of guilt.
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3. That the criminal history record does not relate to a
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any violation specified as a predicate offense for registration
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as a sexual predator pursuant to s. 775.21, without regard to
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whether that offense alone is sufficient to require such
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registration, or for registration as a sexual offender pursuant
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to s. 943.0435, where the defendant was found guilty of, or pled
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guilty or nolo contendere to any such offense, or that the
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defendant, as a minor, was found to have committed, or pled
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guilty or nolo contendere to committing, such an offense as a
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delinquent act, without regard to whether adjudication was
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withheld.
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(b) Remits a $75 processing fee to the department for
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placement in the Department of Law Enforcement Operating Trust
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Fund, unless such fee is waived by the executive director.
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(c) Has submitted to the department a certified copy of the
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disposition of the charge to which the petition to expunge
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pertains.
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(d) Has never, prior to the date on which the application
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for a certificate of eligibility is filed, been adjudicated
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guilty of a criminal offense or comparable ordinance violation,
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or been adjudicated delinquent for committing any felony or a
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misdemeanor specified in s. 943.051(3)(b).
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(e) Has not been adjudicated guilty of, or adjudicated
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delinquent for committing, any of the acts stemming from the
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arrest or alleged criminal activity to which the petition to
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expunge pertains.
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(f) Has never secured a prior sealing or expunction of a
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criminal history record under this section, former s. 893.14,
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former s. 901.33, or former s. 943.058, unless expunction is
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sought of a criminal history record previously sealed for 10
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years pursuant to paragraph (h) and the record is otherwise
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eligible for expunction.
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(g) Is no longer under court supervision applicable to the
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disposition of the arrest or alleged criminal activity to which
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the petition to expunge pertains.
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(h) Has previously obtained a court order sealing the
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record under this section, former s. 893.14, former s. 901.33, or
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former s. 943.058 for a minimum of 10 years because adjudication
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was withheld or because all charges related to the arrest or
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alleged criminal activity to which the petition to expunge
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pertains were not dismissed prior to trial, without regard to
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whether the outcome of the trial was other than an adjudication
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of guilt. The requirement for the record to have previously been
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sealed for a minimum of 10 years does not apply when a plea was
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not entered or all charges related to the arrest or alleged
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criminal activity to which the petition to expunge pertains were
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dismissed prior to trial.
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Each clerk of court shall place information on his or her
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Internet website about the availability of criminal history
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sealing and expunction. This information shall include a link to
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the department's website for information and applications for
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sealing and expunging a criminal history record.
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(3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
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(a) In judicial proceedings under this section, a copy of
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the completed petition to expunge shall be served upon the
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appropriate state attorney or the statewide prosecutor and upon
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the arresting agency; however, it is not necessary to make any
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agency other than the state a party. The appropriate state
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attorney or the statewide prosecutor and the arresting agency may
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respond to the court regarding the completed petition to expunge.
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(b) If relief is granted by the court, the clerk of the
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court shall certify copies of the order to the appropriate state
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attorney or the statewide prosecutor and the arresting agency.
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The arresting agency is responsible for forwarding the order to
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any other agency to which the arresting agency disseminated the
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criminal history record information to which the order pertains.
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The department shall forward the order to expunge to the Federal
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Bureau of Investigation. The clerk of the court shall certify a
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copy of the order to any other agency which the records of the
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court reflect has received the criminal history record from the
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court.
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(c) For an order to expunge entered by a court prior to
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July 1, 1992, the department shall notify the appropriate state
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attorney or statewide prosecutor of an order to expunge which is
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contrary to law because the person who is the subject of the
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record has previously been convicted of a crime or comparable
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ordinance violation or has had a prior criminal history record
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sealed or expunged. Upon receipt of such notice, the appropriate
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state attorney or statewide prosecutor shall take action, within
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60 days, to correct the record and petition the court to void the
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order to expunge. The department shall seal the record until such
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time as the order is voided by the court.
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(d) On or after July 1, 1992, the department or any other
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criminal justice agency is not required to act on an order to
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expunge entered by a court when such order does not comply with
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the requirements of this section. Upon receipt of such an order,
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the department must notify the issuing court, the appropriate
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state attorney or statewide prosecutor, the petitioner or the
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petitioner's attorney, and the arresting agency of the reason for
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noncompliance. The appropriate state attorney or statewide
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prosecutor shall take action within 60 days to correct the record
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and petition the court to void the order. No cause of action,
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including contempt of court, shall arise against any criminal
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justice agency for failure to comply with an order to expunge
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when the petitioner for such order failed to obtain the
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certificate of eligibility as required by this section or such
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order does not otherwise comply with the requirements of this
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section.
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(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
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criminal history record of a minor or an adult which is ordered
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expunged by a court of competent jurisdiction pursuant to this
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section must be physically destroyed or obliterated by any
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criminal justice agency having custody of such record; except
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that any criminal history record in the custody of the department
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must be retained in all cases. A criminal history record ordered
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expunged that is retained by the department is confidential and
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exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
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of the State Constitution and not available to any person or
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entity except upon order of a court of competent jurisdiction. A
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criminal justice agency may retain a notation indicating
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compliance with an order to expunge.
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(a) The person who is the subject of a criminal history
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record that is expunged under this section or under other
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provisions of law, including former s. 893.14, former s. 901.33,
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and former s. 943.058, may lawfully deny or fail to acknowledge
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the arrests and subsequent dispositions covered by the expunged
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record, except when the subject of the record:
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1. Is a candidate for employment with a criminal justice
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agency;
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2. Is a defendant in a criminal prosecution;
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3. Concurrently or subsequently petitions for relief under
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this section or s. 943.059;
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4. Is a candidate for admission to The Florida Bar;
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5. Is seeking to be employed or licensed by or to contract
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with the Department of Children and Family Services or the
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Department of Juvenile Justice or to be employed or used by such
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contractor or licensee in a sensitive position having direct
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contact with children, the developmentally disabled, the aged, or
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400, or chapter 429;
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6. Is seeking to be employed or licensed by the Department
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of Education, any district school board, any university
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laboratory school, any charter school, any private or parochial
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school, or any local governmental entity that licenses child care
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facilities; or
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7. Is seeking authorization from a Florida seaport
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identified in s. 311.09 for employment within or access to one or
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(b) Subject to the exceptions in paragraph (a), a person
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who has been granted an expunction under this section, former s.
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893.14, former s. 901.33, or former s. 943.058 may not be held
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under any provision of law of this state to commit perjury or to
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be otherwise liable for giving a false statement by reason of
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such person's failure to recite or acknowledge an expunged
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criminal history record, including when asked on an employment
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application.
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(c) Information relating to the existence of an expunged
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criminal history record which is provided in accordance with
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paragraph (a) is confidential and exempt from the provisions of
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s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
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except that the department shall disclose the existence of a
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criminal history record ordered expunged to the entities set
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forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
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respective licensing, access authorization, and employment
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purposes, and to criminal justice agencies for their respective
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criminal justice purposes. It is unlawful for any employee of an
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entity set forth in subparagraph (a)1., subparagraph (a)4.,
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subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
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disclose information relating to the existence of an expunged
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criminal history record of a person seeking employment, access
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authorization, or licensure with such entity or contractor,
513
except to the person to whom the criminal history record relates
514
or to persons having direct responsibility for employment, access
515
authorization, or licensure decisions. Any person who violates
516
this paragraph commits a misdemeanor of the first degree,
518
(d) The contents of an expunged record may be disclosed by
519
the department upon the receipt of the written, notarized request
520
from the subject of the record.
521
(5) STATUTORY REFERENCES.--Any reference to any other
522
chapter, section, or subdivision of the Florida Statutes in this
523
section constitutes a general reference under the doctrine of
524
incorporation by reference.
525
Section 6. Section 943.059, Florida Statutes, is amended to
526
read:
527
943.059 Court-ordered sealing of criminal history
528
records.--The courts of this state shall continue to have
529
jurisdiction over their own procedures, including the
530
maintenance, sealing, and correction of judicial records
531
containing criminal history information to the extent such
532
procedures are not inconsistent with the conditions,
533
responsibilities, and duties established by this section. Any
534
court of competent jurisdiction may order a criminal justice
535
agency to seal the criminal history record of a minor or an adult
536
who complies with the requirements of this section. The court
537
shall not order a criminal justice agency to seal a criminal
538
history record until the person seeking to seal a criminal
539
history record has applied for and received a certificate of
540
eligibility for sealing pursuant to subsection (2). A criminal
541
history record that relates to a violation of s. 393.135, s.
545
violation enumerated in s. 907.041, or any violation specified as
546
a predicate offense for registration as a sexual predator
547
pursuant to s. 775.21, without regard to whether that offense
548
alone is sufficient to require such registration, or for
549
registration as a sexual offender pursuant to s. 943.0435, may
550
not be sealed, without regard to whether adjudication was
551
withheld, if the defendant was found guilty of or pled guilty or
552
nolo contendere to the offense, or if the defendant, as a minor,
553
was found to have committed or pled guilty or nolo contendere to
554
committing the offense as a delinquent act. The court may only
555
order sealing of a criminal history record pertaining to one
556
arrest or one incident of alleged criminal activity, except as
557
provided in this section. The court may, at its sole discretion,
558
order the sealing of a criminal history record pertaining to more
559
than one arrest if the additional arrests directly relate to the
560
original arrest. If the court intends to order the sealing of
561
records pertaining to such additional arrests, such intent must
562
be specified in the order. A criminal justice agency may not seal
563
any record pertaining to such additional arrests if the order to
564
seal does not articulate the intention of the court to seal
565
records pertaining to more than one arrest. This section does not
566
prevent the court from ordering the sealing of only a portion of
567
a criminal history record pertaining to one arrest or one
568
incident of alleged criminal activity. Notwithstanding any law to
569
the contrary, a criminal justice agency may comply with laws,
570
court orders, and official requests of other jurisdictions
571
relating to sealing, correction, or confidential handling of
572
criminal history records or information derived therefrom. This
573
section does not confer any right to the sealing of any criminal
574
history record, and any request for sealing a criminal history
575
record may be denied at the sole discretion of the court.
576
(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
577
petition to a court to seal a criminal history record is complete
578
only when accompanied by:
579
(a) A valid certificate of eligibility for sealing issued
580
by the department pursuant to subsection (2).
581
(b) The petitioner's sworn statement attesting that the
582
petitioner:
583
1. Has never, prior to the date on which the petition is
584
filed, been adjudicated guilty of a criminal offense or
585
comparable ordinance violation, or been adjudicated delinquent
586
for committing any felony or a misdemeanor specified in s.
587
943.051(3)(b).
588
2. Has not been adjudicated guilty of or adjudicated
589
delinquent for committing any of the acts stemming from the
590
arrest or alleged criminal activity to which the petition to seal
591
pertains.
592
3. Has never secured a prior sealing, except as provided in
593
subsection (6), or expunction of a criminal history record under
594
this section, former s. 893.14, former s. 901.33, former s.
595
943.058, or from any jurisdiction outside the state.
596
4. Is eligible for such a sealing to the best of his or her
597
knowledge or belief and does not have any other petition to seal
598
or any petition to expunge pending before any court.
599
600
Any person who knowingly provides false information on such sworn
601
statement to the court commits a felony of the third degree,
603
(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
604
petitioning the court to seal a criminal history record, a person
605
seeking to seal a criminal history record shall apply to the
606
department for a certificate of eligibility for sealing. The
607
department shall, by rule adopted pursuant to chapter 120,
608
establish procedures pertaining to the application for and
609
issuance of certificates of eligibility for sealing. A
610
certificate of eligibility for sealing is valid for 12 months
611
after the date stamped on the certificate when issued by the
612
department. After that time, the petitioner must reapply to the
613
department for a new certificate of eligibility. Eligibility for
614
a renewed certification of eligibility must be based on the
615
status of the applicant and the law in effect at the time of the
616
renewal application. The department shall issue a certificate of
617
eligibility for sealing to a person who is the subject of a
618
criminal history record provided that such person:
619
(a) Has submitted to the department a certified copy of the
620
disposition of the charge to which the petition to seal pertains.
621
(b) Remits a $75 processing fee to the department for
622
placement in the Department of Law Enforcement Operating Trust
623
Fund, unless such fee is waived by the executive director.
624
(c) Has never, prior to the date on which the application
625
for a certificate of eligibility is filed, been adjudicated
626
guilty of a criminal offense or comparable ordinance violation,
627
or been adjudicated delinquent for committing any felony or a
628
misdemeanor specified in s. 943.051(3)(b).
629
(d) Has not been adjudicated guilty of or adjudicated
630
delinquent for committing any of the acts stemming from the
631
arrest or alleged criminal activity to which the petition to seal
632
pertains.
633
(e) Has never secured a prior sealing, except as provided
634
in subsection (6), or expunction of a criminal history record
635
under this section, former s. 893.14, former s. 901.33, or former
636
s. 943.058.
637
(f) Is no longer under court supervision applicable to the
638
disposition of the arrest or alleged criminal activity to which
639
the petition to seal pertains.
640
(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
641
(a) In judicial proceedings under this section, a copy of
642
the completed petition to seal shall be served upon the
643
appropriate state attorney or the statewide prosecutor and upon
644
the arresting agency; however, it is not necessary to make any
645
agency other than the state a party. The appropriate state
646
attorney or the statewide prosecutor and the arresting agency may
647
respond to the court regarding the completed petition to seal.
648
(b) If relief is granted by the court, the clerk of the
649
court shall certify copies of the order to the appropriate state
650
attorney or the statewide prosecutor and to the arresting agency.
651
The arresting agency is responsible for forwarding the order to
652
any other agency to which the arresting agency disseminated the
653
criminal history record information to which the order pertains.
654
The department shall forward the order to seal to the Federal
655
Bureau of Investigation. The clerk of the court shall certify a
656
copy of the order to any other agency which the records of the
657
court reflect has received the criminal history record from the
658
court.
659
(c) For an order to seal entered by a court prior to July
660
1, 1992, the department shall notify the appropriate state
661
attorney or statewide prosecutor of any order to seal which is
662
contrary to law because the person who is the subject of the
663
record has previously been convicted of a crime or comparable
664
ordinance violation or has had a prior criminal history record
665
sealed, except as provided in subsection (6), or expunged. Upon
666
receipt of such notice, the appropriate state attorney or
667
statewide prosecutor shall take action, within 60 days, to
668
correct the record and petition the court to void the order to
669
seal. The department shall seal the record until such time as the
670
order is voided by the court.
671
(d) On or after July 1, 1992, the department or any other
672
criminal justice agency is not required to act on an order to
673
seal entered by a court when such order does not comply with the
674
requirements of this section. Upon receipt of such an order, the
675
department must notify the issuing court, the appropriate state
676
attorney or statewide prosecutor, the petitioner or the
677
petitioner's attorney, and the arresting agency of the reason for
678
noncompliance. The appropriate state attorney or statewide
679
prosecutor shall take action within 60 days to correct the record
680
and petition the court to void the order. No cause of action,
681
including contempt of court, shall arise against any criminal
682
justice agency for failure to comply with an order to seal when
683
the petitioner for such order failed to obtain the certificate of
684
eligibility as required by this section or when such order does
685
not comply with the requirements of this section.
686
(e) An order sealing a criminal history record pursuant to
687
this section does not require that such record be surrendered to
688
the court, and such record shall continue to be maintained by the
689
department and other criminal justice agencies.
690
(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
691
history record of a minor or an adult which is ordered sealed by
692
a court of competent jurisdiction pursuant to this section is
693
confidential and exempt from the provisions of s. 119.07(1) and
694
s. 24(a), Art. I of the State Constitution and is available only
695
to the person who is the subject of the record, to the subject's
696
attorney, to criminal justice agencies for their respective
697
criminal justice purposes, which include conducting a criminal
698
history background check for approval of firearms purchases or
699
transfers as authorized by state or federal law, or to those
700
entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for
701
their respective licensing, access authorization, and employment
702
purposes.
703
(a) The subject of a criminal history record sealed under
704
this section or under other provisions of law, including former
705
s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
706
deny or fail to acknowledge the arrests and subsequent
707
dispositions covered by the sealed record, except when the
708
subject of the record:
709
1. Is a candidate for employment with a criminal justice
710
agency;
711
2. Is a defendant in a criminal prosecution;
712
3. Concurrently or subsequently petitions for relief under
713
this section or s. 943.0585;
714
4. Is a candidate for admission to The Florida Bar;
715
5. Is seeking to be employed or licensed by or to contract
716
with the Department of Children and Family Services or the
717
Department of Juvenile Justice or to be employed or used by such
718
contractor or licensee in a sensitive position having direct
719
contact with children, the developmentally disabled, the aged, or
723
985.644, chapter 400, or chapter 429;
724
6. Is seeking to be employed or licensed by the Department
725
of Education, any district school board, any university
726
laboratory school, any charter school, any private or parochial
727
school, or any local governmental entity that licenses child care
728
facilities;
729
7. Is attempting to purchase a firearm from a licensed
730
importer, licensed manufacturer, or licensed dealer and is
731
subject to a criminal history background check under state or
732
federal law; or
733
8. Is seeking authorization from a Florida seaport
734
identified in s. 311.09 for employment within or access to one or
736
(b) Subject to the exceptions in paragraph (a), a person
737
who has been granted a sealing under this section, former s.
738
893.14, former s. 901.33, or former s. 943.058 may not be held
739
under any provision of law of this state to commit perjury or to
740
be otherwise liable for giving a false statement by reason of
741
such person's failure to recite or acknowledge a sealed criminal
742
history record, including when asked on an employment
743
application.
744
(c) Information relating to the existence of a sealed
745
criminal record provided in accordance with the provisions of
746
paragraph (a) is confidential and exempt from the provisions of
747
s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
748
except that the department shall disclose the sealed criminal
749
history record to the entities set forth in subparagraphs (a)1.,
750
4., 5., 6., and 8. for their respective licensing, access
751
authorization, and employment purposes. It is unlawful for any
752
employee of an entity set forth in subparagraph (a)1.,
753
subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
754
subparagraph (a)8. to disclose information relating to the
755
existence of a sealed criminal history record of a person seeking
756
employment, access authorization, or licensure with such entity
757
or contractor, except to the person to whom the criminal history
758
record relates or to persons having direct responsibility for
759
employment, access authorization, or licensure decisions. Any
760
person who violates the provisions of this paragraph commits a
761
misdemeanor of the first degree, punishable as provided in s.
763
(5) STATUTORY REFERENCES.--Any reference to any other
764
chapter, section, or subdivision of the Florida Statutes in this
765
section constitutes a general reference under the doctrine of
766
incorporation by reference.
767
(6) SECOND SEALING OF CRIMINAL HISTORY RECORD.--A person
768
may petition the court to seek a second sealing of his or her
769
criminal history record after having secured one previous
770
expunction or sealing only under the following circumstances.
771
Before petitioning the court for such relief, the person must
772
apply to the department to obtain a certificate of eligibility
773
for the second sealing of his or her criminal history record. The
774
department shall issue the certificate only if the person has not
775
been arrested during the 5-year period following the date of the
776
court order for the initial expunction or sealing of his or her
777
criminal history record. All other provisions and requirements of
778
this section apply when a person seeks a second sealing of his
779
criminal history record.
780
Section 7. The Office of Program Policy Analysis and
781
Government Accountability, in cooperation with the Department of
782
Law Enforcement, shall:
783
(1) Assess current safeguards for the accuracy of the
784
criminal history data contained in the Department of Law
785
Enforcement's Computerized Criminal History (CCH) database.
786
(2) Assess the current process available to potential
787
private employers or licensing entities in determining whether an
788
applicant has a criminal history.
789
(3) Assess whether an adequate process exists to allow the
790
potential private employer or licensing entity to determine
791
whether an applicant's response to an "arrest, conviction, or
792
adjudication withheld" criminal history question on an
793
application is truthful and complete.
794
(4) Assess the feasibility of establishing appropriate
795
privacy safeguards to protect job or license applicants, such as
796
providing informed consent and the opportunity to review a
797
criminal history record before a job or licensing application is
798
made, before the criminal history record is provided to the
799
potential employer or licensing entity, and before adverse action
800
is taken by the potential employer or licensing entity.
801
(5) Identify actions that could be taken to improve both
802
the completeness of the criminal history record and the consumer
803
readability of the criminal history record.
804
805
The Office of Program Policy Analysis and Government
806
Accountability shall report its findings to the President of the
807
Senate and Speaker of the House of Representatives by February 1,
808
2009.
809
Section 8. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.