Florida Senate - 2008 SB 2254
By Senator Siplin
19-03685A-08 20082254__
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A bill to be entitled
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An act relating to court-ordered expunction and sealing of
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criminal history records; amending s. 943.0585, F.S.;
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increasing from one to three the number of arrests or
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incidents that a petitioner may offer for expunction by
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the court without certain conditions; decreasing the
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number of years that a criminal history record must be
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sealed before the criminal history record is eligible for
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expunction; amending s. 943.059, F.S.; increasing from one
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to three the number of arrests or incidents that a
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petitioner may request be sealed by the court without
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certain conditions; 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. 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
23
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
37
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
39
registration as a sexual offender pursuant to s. 943.0435, may
40
not be expunged, without regard to whether adjudication was
41
withheld, if the defendant was found guilty of or pled guilty or
42
nolo contendere to the offense, or if the defendant, as a minor,
43
was found to have committed, or pled guilty or nolo contendere to
44
committing, the offense as a delinquent act. The court may only
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order expunction of a criminal history record pertaining to three
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arrests one arrest or three incidents one incident of alleged
47
criminal activity, except as provided in this section. The court
48
may, at its sole discretion, order the expunction of a criminal
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history record pertaining to more than three arrests one arrest
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if the additional arrests directly relate to the original arrests
51
arrest. If the court intends to order the expunction of records
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pertaining to such additional arrests, such intent must be
53
specified in the order. A criminal justice agency may not expunge
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any record pertaining to such additional arrests if the order to
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expunge does not articulate the intention of the court to expunge
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a record pertaining to more than three arrests 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
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three arrests one arrest or three incidents one incident of
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alleged criminal activity. Notwithstanding any law to the
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contrary, a criminal justice agency may comply with laws, court
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orders, and official requests of other jurisdictions relating to
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expunction, correction, or confidential handling of criminal
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history records or information derived therefrom. This section
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does not confer any right to the expunction of any criminal
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history record, and any request for expunction of a criminal
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history record may be denied at the sole 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
77
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 not never secured more than two previous sealings or
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expunctions a prior sealing or expunction of a criminal history
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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, or from any jurisdiction outside the state,
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unless expunction is sought of a criminal history record
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previously sealed for 2 10 years pursuant to paragraph (2)(h) and
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the record is otherwise eligible for 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
96
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
101
to the department for a certificate of eligibility for
102
expunction. The department shall, by rule adopted pursuant to
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chapter 120, establish procedures pertaining to the application
104
for and issuance of certificates of eligibility for expunction. A
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certificate of eligibility for expunction is valid for 12 months
106
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
110
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
116
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
135
registration, or for registration as a sexual offender pursuant
136
to s. 943.0435, where the defendant was found guilty of, or pled
137
guilty or nolo contendere to any such offense, or that the
138
defendant, as a minor, was found to have committed, or pled
139
guilty or nolo contendere to committing, such an offense as a
140
delinquent act, without regard to whether adjudication was
141
withheld.
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(b) Remits a $75 processing fee to the department for
143
placement in the Department of Law Enforcement Operating Trust
144
Fund, unless such fee is waived by the executive director.
145
(c) Has submitted to the department a certified copy of the
146
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
149
for a certificate of eligibility is filed, been adjudicated
150
guilty of a criminal offense or comparable ordinance violation,
151
or been adjudicated delinquent for committing any felony or a
152
misdemeanor specified in s. 943.051(3)(b).
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(e) Has not been adjudicated guilty of, or adjudicated
154
delinquent for committing, any of the acts stemming from the
155
arrest or alleged criminal activity to which the petition to
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expunge pertains.
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(f) Has not never secured more than two previous sealings
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or expunctions a prior sealing or expunction of a criminal
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history record under this section, former s. 893.14, former s.
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901.33, or former s. 943.058, unless expunction is sought of a
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criminal history record previously sealed for 2 10 years pursuant
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to paragraph (h) and the record is otherwise eligible for
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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 2 10 years because
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adjudication was withheld or because all charges related to the
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arrest or alleged criminal activity to which the petition to
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expunge pertains were not dismissed prior to trial, without
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regard to whether the outcome of the trial was other than an
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adjudication of guilt. The requirement for the record to have
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previously been sealed for a minimum of 2 10 years does not apply
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when a plea was not entered or all charges related to the arrest
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or alleged criminal activity to which the petition to expunge
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pertains were dismissed prior to trial.
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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
184
agency other than the state a party. The appropriate state
185
attorney or the statewide prosecutor and the arresting agency may
186
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
203
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
208
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
212
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 covered by the expunged record, except when the
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subject of the record:
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1. Is a candidate for employment with a criminal justice
245
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
251
with the Department of Children and Family Services or the
252
Department of Juvenile Justice or to be employed or used by such
253
contractor or licensee in a sensitive position having direct
254
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
260
of Education, any district school board, any university
261
laboratory school, any charter school, any private or parochial
262
school, or any local governmental entity that licenses child care
263
facilities; or
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7. Is seeking authorization from a Florida seaport
265
identified in s. 311.09 for employment within or access to one or
267
(b) Subject to the exceptions in paragraph (a), a person
268
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.
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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
282
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,
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except to the person to whom the criminal history record relates
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or to persons having direct responsibility for employment, access
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authorization, or licensure decisions. Any person who violates
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this paragraph commits a misdemeanor of the first degree,
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(5) STATUTORY REFERENCES.--Any reference to any other
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chapter, section, or subdivision of the Florida Statutes in this
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section constitutes a general reference under the doctrine of
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incorporation by reference.
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Section 2. Section 943.059, Florida Statutes, is amended to
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read:
300
943.059 Court-ordered sealing of criminal history
301
records.--The courts of this state shall continue to have
302
jurisdiction over their own procedures, including the
303
maintenance, sealing, and correction of judicial records
304
containing criminal history information to the extent such
305
procedures are not inconsistent with the conditions,
306
responsibilities, and duties established by this section. Any
307
court of competent jurisdiction may order a criminal justice
308
agency to seal the criminal history record of a minor or an adult
309
who complies with the requirements of this section. The court
310
shall not order a criminal justice agency to seal a criminal
311
history record until the person seeking to seal a criminal
312
history record has applied for and received a certificate of
313
eligibility for sealing pursuant to subsection (2). A criminal
314
history record that relates to a violation of s. 393.135, s.
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violation enumerated in s. 907.041, or any violation specified as
319
a predicate offense for registration as a sexual predator
320
pursuant to s. 775.21, without regard to whether that offense
321
alone is sufficient to require such registration, or for
322
registration as a sexual offender pursuant to s. 943.0435, may
323
not be sealed, without regard to whether adjudication was
324
withheld, if the defendant was found guilty of or pled guilty or
325
nolo contendere to the offense, or if the defendant, as a minor,
326
was found to have committed or pled guilty or nolo contendere to
327
committing the offense as a delinquent act. The court may only
328
order sealing of a criminal history record pertaining to three
329
arrests one arrest or three incidents one incident of alleged
330
criminal activity, except as provided in this section. The court
331
may, at its sole discretion, order the sealing of a criminal
332
history record pertaining to more than three arrests one arrest
333
if the additional arrests directly relate to the original arrests
334
arrest. If the court intends to order the sealing of records
335
pertaining to such additional arrests, such intent must be
336
specified in the order. A criminal justice agency may not seal
337
any record pertaining to such additional arrests if the order to
338
seal does not articulate the intention of the court to seal
339
records pertaining to more than three arrests one arrest. This
340
section does not prevent the court from ordering the sealing of
341
only a portion of a criminal history record pertaining to three
342
arrests one arrest or three incidents one incident of alleged
343
criminal activity. Notwithstanding any law to the contrary, a
344
criminal justice agency may comply with laws, court orders, and
345
official requests of other jurisdictions relating to sealing,
346
correction, or confidential handling of criminal history records
347
or information derived therefrom. This section does not confer
348
any right to the sealing of any criminal history record, and any
349
request for sealing a criminal history record may be denied at
350
the sole discretion of the court.
351
(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
352
petition to a court to seal a criminal history record is complete
353
only when accompanied by:
354
(a) A valid certificate of eligibility for sealing issued
355
by the department pursuant to subsection (2).
356
(b) The petitioner's sworn statement attesting that the
357
petitioner:
358
1. Has never, prior to the date on which the petition is
359
filed, been adjudicated guilty of a criminal offense or
360
comparable ordinance violation, or been adjudicated delinquent
361
for committing any felony or a misdemeanor specified in s.
362
943.051(3)(b).
363
2. Has not been adjudicated guilty of or adjudicated
364
delinquent for committing any of the acts stemming from the
365
arrest or alleged criminal activity to which the petition to seal
366
pertains.
367
3. Has not never secured more than two previous sealings or
368
expunctions a prior sealing or expunction of a criminal history
369
record under this section, former s. 893.14, former s. 901.33,
370
former s. 943.058, or from any jurisdiction outside the state.
371
4. Is eligible for such a sealing to the best of his or her
372
knowledge or belief and does not have any other petition to seal
373
or any petition to expunge pending before any court.
374
375
Any person who knowingly provides false information on such sworn
376
statement to the court commits a felony of the third degree,
378
(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
379
petitioning the court to seal a criminal history record, a person
380
seeking to seal a criminal history record shall apply to the
381
department for a certificate of eligibility for sealing. The
382
department shall, by rule adopted pursuant to chapter 120,
383
establish procedures pertaining to the application for and
384
issuance of certificates of eligibility for sealing. A
385
certificate of eligibility for sealing is valid for 12 months
386
after the date stamped on the certificate when issued by the
387
department. After that time, the petitioner must reapply to the
388
department for a new certificate of eligibility. Eligibility for
389
a renewed certification of eligibility must be based on the
390
status of the applicant and the law in effect at the time of the
391
renewal application. The department shall issue a certificate of
392
eligibility for sealing to a person who is the subject of a
393
criminal history record provided that such person:
394
(a) Has submitted to the department a certified copy of the
395
disposition of the charge or charges to which the petition to
396
seal pertains.
397
(b) Remits a $75 processing fee to the department for
398
placement in the Department of Law Enforcement Operating Trust
399
Fund, unless such fee is waived by the executive director.
400
(c) Has never, prior to the date on which the application
401
for a certificate of eligibility is filed, been adjudicated
402
guilty of a criminal offense or comparable ordinance violation,
403
or been adjudicated delinquent for committing any felony or a
404
misdemeanor specified in s. 943.051(3)(b).
405
(d) Has not been adjudicated guilty of or adjudicated
406
delinquent for committing any of the acts stemming from the
407
arrest or alleged criminal activity to which the petition to seal
408
pertains.
409
(e) Has not never secured more than two previous sealings
410
or expunctions a prior sealing or expunction of a criminal
411
history record under this section, former s. 893.14, former s.
412
901.33, or former s. 943.058.
413
(f) Is no longer under court supervision applicable to the
414
disposition of the arrest or alleged criminal activity to which
415
the petition to seal pertains.
416
(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
417
(a) In judicial proceedings under this section, a copy of
418
the completed petition to seal shall be served upon the
419
appropriate state attorney or the statewide prosecutor and upon
420
the arresting agency; however, it is not necessary to make any
421
agency other than the state a party. The appropriate state
422
attorney or the statewide prosecutor and the arresting agency may
423
respond to the court regarding the completed petition to seal.
424
(b) If relief is granted by the court, the clerk of the
425
court shall certify copies of the order to the appropriate state
426
attorney or the statewide prosecutor and to the arresting agency.
427
The arresting agency is responsible for forwarding the order to
428
any other agency to which the arresting agency disseminated the
429
criminal history record information to which the order pertains.
430
The department shall forward the order to seal to the Federal
431
Bureau of Investigation. The clerk of the court shall certify a
432
copy of the order to any other agency which the records of the
433
court reflect has received the criminal history record from the
434
court.
435
(c) For an order to seal entered by a court prior to July
436
1, 1992, the department shall notify the appropriate state
437
attorney or statewide prosecutor of any order to seal which is
438
contrary to law because the person who is the subject of the
439
record has previously been convicted of a crime or comparable
440
ordinance violation or has had a prior criminal history record
441
sealed or expunged. Upon receipt of such notice, the appropriate
442
state attorney or statewide prosecutor shall take action, within
443
60 days, to correct the record and petition the court to void the
444
order to seal. The department shall seal the record until such
445
time as the order is voided by the court.
446
(d) On or after July 1, 1992, the department or any other
447
criminal justice agency is not required to act on an order to
448
seal entered by a court when such order does not comply with the
449
requirements of this section. Upon receipt of such an order, the
450
department must notify the issuing court, the appropriate state
451
attorney or statewide prosecutor, the petitioner or the
452
petitioner's attorney, and the arresting agency of the reason for
453
noncompliance. The appropriate state attorney or statewide
454
prosecutor shall take action within 60 days to correct the record
455
and petition the court to void the order. No cause of action,
456
including contempt of court, shall arise against any criminal
457
justice agency for failure to comply with an order to seal when
458
the petitioner for such order failed to obtain the certificate of
459
eligibility as required by this section or when such order does
460
not comply with the requirements of this section.
461
(e) An order sealing a criminal history record pursuant to
462
this section does not require that such record be surrendered to
463
the court, and such record shall continue to be maintained by the
464
department and other criminal justice agencies.
465
(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
466
history record of a minor or an adult which is ordered sealed by
467
a court of competent jurisdiction pursuant to this section is
468
confidential and exempt from the provisions of s. 119.07(1) and
469
s. 24(a), Art. I of the State Constitution and is available only
470
to the person who is the subject of the record, to the subject's
471
attorney, to criminal justice agencies for their respective
472
criminal justice purposes, which include conducting a criminal
473
history background check for approval of firearms purchases or
474
transfers as authorized by state or federal law, or to those
475
entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for
476
their respective licensing, access authorization, and employment
477
purposes.
478
(a) The subject of a criminal history record sealed under
479
this section or under other provisions of law, including former
480
s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
481
deny or fail to acknowledge the arrests covered by the sealed
482
record, except when the subject of the record:
483
1. Is a candidate for employment with a criminal justice
484
agency;
485
2. Is a defendant in a criminal prosecution;
486
3. Concurrently or subsequently petitions for relief under
487
this section or s. 943.0585;
488
4. Is a candidate for admission to The Florida Bar;
489
5. Is seeking to be employed or licensed by or to contract
490
with the Department of Children and Family Services or the
491
Department of Juvenile Justice or to be employed or used by such
492
contractor or licensee in a sensitive position having direct
493
contact with children, the developmentally disabled, the aged, or
497
985.644, chapter 400, or chapter 429;
498
6. Is seeking to be employed or licensed by the Department
499
of Education, any district school board, any university
500
laboratory school, any charter school, any private or parochial
501
school, or any local governmental entity that licenses child care
502
facilities;
503
7. Is attempting to purchase a firearm from a licensed
504
importer, licensed manufacturer, or licensed dealer and is
505
subject to a criminal history background check under state or
506
federal law; or
507
8. Is seeking authorization from a Florida seaport
508
identified in s. 311.09 for employment within or access to one or
510
(b) Subject to the exceptions in paragraph (a), a person
511
who has been granted a sealing under this section, former s.
512
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 a sealed criminal
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history record.
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(c) Information relating to the existence of a sealed
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criminal record provided in accordance with the provisions of
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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 sealed criminal
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history record to the entities set forth in subparagraphs (a)1.,
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4., 5., 6., and 8. for their respective licensing, access
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authorization, and employment purposes. It is unlawful for any
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employee of an entity set forth in subparagraph (a)1.,
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subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
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subparagraph (a)8. to disclose information relating to the
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existence of a sealed criminal history record of a person seeking
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employment, access authorization, or licensure with such entity
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or contractor, except to the person to whom the criminal history
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record relates or to persons having direct responsibility for
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employment, access authorization, or licensure decisions. Any
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person who violates the provisions of this paragraph commits a
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misdemeanor of the first degree, punishable as provided in s.
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(5) STATUTORY REFERENCES.--Any reference to any other
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chapter, section, or subdivision of the Florida Statutes in this
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section constitutes a general reference under the doctrine of
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incorporation by reference.
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Section 3. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.