| 1 | A bill to be entitled | 
| 2 | An act relating to sealing criminal history records; | 
| 3 | amending s. 943.059, F.S.; permitting the sealing of a | 
| 4 | criminal history record that relates to specified | 
| 5 | misdemeanor violations; defining terms; providing for a | 
| 6 | petition to seal; providing for a certificate of | 
| 7 | eligibility; providing an effective date. | 
| 8 | 
 | 
| 9 | Be It Enacted by the Legislature of the State of Florida: | 
| 10 | 
 | 
| 11 | Section 1.  Section 943.059, Florida Statutes, is amended | 
| 12 | to read: | 
| 13 | 943.059  Court-ordered sealing of criminal history | 
| 14 | records.-- | 
| 15 | (1)  REQUIREMENTS AND RESTRICTIONS.--The courts of this | 
| 16 | state shall continue to have jurisdiction over their own | 
| 17 | procedures, including the maintenance, sealing, and correction | 
| 18 | of judicial records containing criminal history information to | 
| 19 | the extent such procedures are not inconsistent with the | 
| 20 | conditions, responsibilities, and duties established by this | 
| 21 | section. Any court of competent jurisdiction may order a | 
| 22 | criminal justice agency to seal the criminal history record of a | 
| 23 | minor or an adult who complies with the requirements of this | 
| 24 | section. The court shall not order a criminal justice agency to | 
| 25 | seal a criminal history record until the person seeking to seal | 
| 26 | a criminal history record has applied for and received a | 
| 27 | certificate of eligibility for sealing pursuant to subsection | 
| 28 | (3) or subsection (5) (2). A criminal history record that | 
| 29 | relates to a violation of s. 393.135, s. 394.4593, s. 787.025, | 
| 30 | chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. | 
| 31 | 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. | 
| 32 | 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. | 
| 33 | 907.041, or any violation specified as a predicate offense for | 
| 34 | registration as a sexual predator pursuant to s. 775.21, without | 
| 35 | regard to whether that offense alone is sufficient to require | 
| 36 | such registration, or for registration as a sexual offender | 
| 37 | pursuant to s. 943.0435, may not be sealed, without regard to | 
| 38 | whether adjudication was withheld, if the defendant was found | 
| 39 | guilty of or pled guilty or nolo contendere to the offense, or | 
| 40 | if the defendant, as a minor, was found to have committed or | 
| 41 | pled guilty or nolo contendere to committing the offense as a | 
| 42 | delinquent act. The court may only order sealing of a criminal | 
| 43 | history record pertaining to one arrest or one incident of | 
| 44 | alleged criminal activity, except as provided in this section. | 
| 45 | The court may, at its sole discretion, order the sealing of a | 
| 46 | criminal history record pertaining to more than one arrest if | 
| 47 | the additional arrests directly relate to the original arrest. | 
| 48 | If the court intends to order the sealing of records pertaining | 
| 49 | to such additional arrests, such intent must be specified in the | 
| 50 | order. A criminal justice agency may not seal any record | 
| 51 | pertaining to such additional arrests if the order to seal does | 
| 52 | not articulate the intention of the court to seal records | 
| 53 | pertaining to more than one arrest. This section does not | 
| 54 | prevent the court from ordering the sealing of only a portion of | 
| 55 | a criminal history record pertaining to one arrest or one | 
| 56 | incident of alleged criminal activity. Notwithstanding any law | 
| 57 | to the contrary, a criminal justice agency may comply with laws, | 
| 58 | court orders, and official requests of other jurisdictions | 
| 59 | relating to sealing, correction, or confidential handling of | 
| 60 | criminal history records or information derived therefrom. This | 
| 61 | section does not confer any right to the sealing of any criminal | 
| 62 | history record, and any request for sealing a criminal history | 
| 63 | record may be denied at the sole discretion of the court. | 
| 64 | (2) (1)PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Except | 
| 65 | as provided in subsection (4), each petition to a court to seal | 
| 66 | a criminal history record is complete only when accompanied by: | 
| 67 | (a)  A valid certificate of eligibility for sealing issued | 
| 68 | by the department pursuant to subsection (3) (2). | 
| 69 | (b)  The petitioner's sworn statement attesting that the | 
| 70 | petitioner: | 
| 71 | 1.  Has never, prior to the date on which the petition is | 
| 72 | filed, been adjudicated guilty of a criminal offense or | 
| 73 | comparable ordinance violation, or been adjudicated delinquent | 
| 74 | for committing any felony or a misdemeanor specified in s. | 
| 75 | 943.051(3)(b). | 
| 76 | 2.  Has not been adjudicated guilty of or adjudicated | 
| 77 | delinquent for committing any of the acts stemming from the | 
| 78 | arrest or alleged criminal activity to which the petition to | 
| 79 | seal pertains. | 
| 80 | 3.  Has never secured a prior sealing or expunction of a | 
| 81 | criminal history record under this section, former s. 893.14, | 
| 82 | former s. 901.33, former s. 943.058, or from any jurisdiction | 
| 83 | outside the state. | 
| 84 | 4.  Is eligible for such a sealing to the best of his or | 
| 85 | her knowledge or belief and does not have any other petition to | 
| 86 | seal or any petition to expunge pending before any court. | 
| 87 | 
 | 
| 88 | Any person who knowingly provides false information on such | 
| 89 | sworn statement to the court commits a felony of the third | 
| 90 | degree, punishable as provided in s. 775.082, s. 775.083, or s. | 
| 91 | 775.084. | 
| 92 | (3) (2)CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to | 
| 93 | petitioning the court to seal a criminal history record, a | 
| 94 | person seeking to seal a criminal history record shall apply to | 
| 95 | the department for a certificate of eligibility for sealing. The | 
| 96 | department shall, by rule adopted pursuant to chapter 120, | 
| 97 | establish procedures pertaining to the application for and | 
| 98 | issuance of certificates of eligibility for sealing. A | 
| 99 | certificate of eligibility for sealing is valid for 12 months | 
| 100 | after the date stamped on the certificate when issued by the | 
| 101 | department. After that time, the petitioner must reapply to the | 
| 102 | department for a new certificate of eligibility. Eligibility for | 
| 103 | a renewed certification of eligibility must be based on the | 
| 104 | status of the applicant and the law in effect at the time of the | 
| 105 | renewal application. Except as provided in subsection (5), the | 
| 106 | department shall issue a certificate of eligibility for sealing | 
| 107 | to a person who is the subject of a criminal history record | 
| 108 | provided that such person: | 
| 109 | (a)  Has submitted to the department a certified copy of | 
| 110 | the disposition of the charge to which the petition to seal | 
| 111 | pertains. | 
| 112 | (b)  Remits a $75 processing fee to the department for | 
| 113 | placement in the Department of Law Enforcement Operating Trust | 
| 114 | Fund, unless such fee is waived by the executive director. | 
| 115 | (c)  Has never, prior to the date on which the application | 
| 116 | for a certificate of eligibility is filed, been adjudicated | 
| 117 | guilty of a criminal offense or comparable ordinance violation, | 
| 118 | or been adjudicated delinquent for committing any felony or a | 
| 119 | misdemeanor specified in s. 943.051(3)(b). | 
| 120 | (d)  Has not been adjudicated guilty of or adjudicated | 
| 121 | delinquent for committing any of the acts stemming from the | 
| 122 | arrest or alleged criminal activity to which the petition to | 
| 123 | seal pertains. | 
| 124 | (e)  Has never secured a prior sealing or expunction of a | 
| 125 | criminal history record under this section, former s. 893.14, | 
| 126 | former s. 901.33, or former s. 943.058. | 
| 127 | (f)  Is no longer under court supervision applicable to the | 
| 128 | disposition of the arrest or alleged criminal activity to which | 
| 129 | the petition to seal pertains. | 
| 130 | (4)  PETITION TO SEAL A CRIMINAL HISTORY RECORD RELATING TO | 
| 131 | CERTAIN MISDEMEANORS.-- | 
| 132 | (a)  For purposes of this subsection and subsection (5), | 
| 133 | the term "specially sealable misdemeanor" means a misdemeanor | 
| 134 | violation of s. 562.11(2), s. 562.111, s. 806.101, s. 806.13, s. | 
| 135 | s. 810.08, s. 810.09, s. 810.10, s. 810.11, s. 810.115, s. | 
| 136 | 810.13, s. 823.01, s. 823.02, s. 856.011, s. 856.015, s. 870.02, | 
| 137 | or chapter 893 in which the petitioner was adjudicated guilty or | 
| 138 | delinquent. | 
| 139 | (b)  Each petition to a court to seal a criminal history | 
| 140 | record that relates to a specially sealable misdemeanor is | 
| 141 | complete only when accompanied by: | 
| 142 | 1.  A valid certificate of eligibility for sealing issued | 
| 143 | by the department pursuant to subsection (5). | 
| 144 | 2.  The petitioner's sworn statement attesting that: | 
| 145 | a.  With the exception of being adjudicated guilty or | 
| 146 | delinquent for committing a specially sealable misdemeanor to | 
| 147 | which the petition to seal pertains, the petitioner has never, | 
| 148 | prior to the date on which the petition is filed, been | 
| 149 | adjudicated guilty of a criminal offense or comparable ordinance | 
| 150 | violation or been adjudicated delinquent for committing any | 
| 151 | felony or a misdemeanor specified in s. 943.051(3)(b). | 
| 152 | b.  The petitioner was adjudicated guilty or delinquent of | 
| 153 | a specially sealable misdemeanor to which the petition pertains | 
| 154 | more than 10 years prior to the date on which the petition is | 
| 155 | filed. | 
| 156 | c.  The petitioner has never secured a prior sealing or | 
| 157 | expunction of a criminal history record under this section, | 
| 158 | former s. 893.14, former s. 901.33, or former s. 943.058, or | 
| 159 | from any jurisdiction outside the state. | 
| 160 | d.  The petitioner is eligible for such a sealing to the | 
| 161 | best of his or her knowledge or belief and does not have any | 
| 162 | other petition to seal or any petition to expunge pending before | 
| 163 | any court. | 
| 164 |  | 
| 165 | Any person who knowingly provides false information on such | 
| 166 | sworn statement to the court commits a felony of the third | 
| 167 | degree, punishable as provided in s. 775.082, s. 775.083, or s. | 
| 168 | 775.084. | 
| 169 | (5)  CERTIFICATE OF ELIGIBILITY FOR SEALING A CRIMINAL | 
| 170 | HISTORY RECORD RELATING TO CERTAIN MISDEMEANORS.--Prior to | 
| 171 | petitioning the court to seal a criminal history record relating | 
| 172 | to a specially sealable misdemeanor, a person seeking to seal a | 
| 173 | criminal history record shall apply to the department for a | 
| 174 | certificate of eligibility for sealing. The department shall, by | 
| 175 | rule adopted pursuant to chapter 120, establish procedures | 
| 176 | pertaining to the application for and issuance of certificates | 
| 177 | of eligibility for sealing. The department shall endeavor to | 
| 178 | make forms and procedures as simple to use as possible in order | 
| 179 | to facilitate applicants who are proceeding without assistance. | 
| 180 | A certificate of eligibility for sealing is valid for 12 months | 
| 181 | after the date stamped on the certificate when issued by the | 
| 182 | department. After that time, the petitioner must reapply to the | 
| 183 | department for a new certificate of eligibility. Eligibility for | 
| 184 | a renewed certification of eligibility must be based on the | 
| 185 | status of the applicant and the law in effect at the time of the | 
| 186 | renewal application. The department shall issue a certificate of | 
| 187 | eligibility for sealing to a person who is the subject of a | 
| 188 | criminal history record provided that such person: | 
| 189 | (a)  Has submitted to the department a certified copy of | 
| 190 | the disposition of the charge to which the petition to seal | 
| 191 | pertains. | 
| 192 | (b)  Remits a $75 processing fee to the department for | 
| 193 | placement in the Department of Law Enforcement Operating Trust | 
| 194 | Fund, unless such fee is waived by the executive director. | 
| 195 | (c)  With the exception of being adjudicated guilty or | 
| 196 | delinquent for committing a misdemeanor violation of a provision | 
| 197 | listed in paragraph (4)(a) to which the petition to seal | 
| 198 | pertains, has never, prior to the date on which the application | 
| 199 | for a certificate of eligibility is filed, been adjudicated | 
| 200 | guilty of a criminal offense or comparable ordinance violation | 
| 201 | or been adjudicated delinquent for committing any felony or a | 
| 202 | misdemeanor specified in s. 943.051(3)(b). | 
| 203 | (d)  Was adjudicated guilty or delinquent for a specially | 
| 204 | sealable misdemeanor to which the petition pertains more than 10 | 
| 205 | years prior to the date on which the petition is filed. | 
| 206 | (e)  Has never secured a prior sealing or expunction of a | 
| 207 | criminal history record under this section, former s. 893.14, | 
| 208 | former s. 901.33, or former s. 943.058. | 
| 209 | (f)  Is no longer under court supervision applicable to the | 
| 210 | disposition of the arrest or alleged criminal activity to which | 
| 211 | the petition to seal pertains. | 
| 212 | (6) (3)PROCESSING OF A PETITION OR ORDER TO SEAL.-- | 
| 213 | (a)  In judicial proceedings under this section, a copy of | 
| 214 | the completed petition to seal shall be served upon the | 
| 215 | appropriate state attorney or the statewide prosecutor and upon | 
| 216 | the arresting agency; however, it is not necessary to make any | 
| 217 | agency other than the state a party. The appropriate state | 
| 218 | attorney or the statewide prosecutor and the arresting agency | 
| 219 | may respond to the court regarding the completed petition to | 
| 220 | seal. | 
| 221 | (b)  If relief is granted by the court, the clerk of the | 
| 222 | court shall certify copies of the order to the appropriate state | 
| 223 | attorney or the statewide prosecutor and to the arresting | 
| 224 | agency. The arresting agency is responsible for forwarding the | 
| 225 | order to any other agency to which the arresting agency | 
| 226 | disseminated the criminal history record information to which | 
| 227 | the order pertains. The department shall forward the order to | 
| 228 | seal to the Federal Bureau of Investigation. The clerk of the | 
| 229 | court shall certify a copy of the order to any other agency | 
| 230 | which the records of the court reflect has received the criminal | 
| 231 | history record from the court. | 
| 232 | (c)  For an order to seal entered by a court prior to July | 
| 233 | 1, 1992, the department shall notify the appropriate state | 
| 234 | attorney or statewide prosecutor of any order to seal which is | 
| 235 | contrary to law because the person who is the subject of the | 
| 236 | record has previously been convicted of a crime or comparable | 
| 237 | ordinance violation or has had a prior criminal history record | 
| 238 | sealed or expunged. Upon receipt of such notice, the appropriate | 
| 239 | state attorney or statewide prosecutor shall take action, within | 
| 240 | 60 days, to correct the record and petition the court to void | 
| 241 | the order to seal. The department shall seal the record until | 
| 242 | such time as the order is voided by the court. | 
| 243 | (d)  On or after July 1, 1992, the department or any other | 
| 244 | criminal justice agency is not required to act on an order to | 
| 245 | seal entered by a court when such order does not comply with the | 
| 246 | requirements of this section. Upon receipt of such an order, the | 
| 247 | department must notify the issuing court, the appropriate state | 
| 248 | attorney or statewide prosecutor, the petitioner or the | 
| 249 | petitioner's attorney, and the arresting agency of the reason | 
| 250 | for noncompliance. The appropriate state attorney or statewide | 
| 251 | prosecutor shall take action within 60 days to correct the | 
| 252 | record and petition the court to void the order. No cause of | 
| 253 | action, including contempt of court, shall arise against any | 
| 254 | criminal justice agency for failure to comply with an order to | 
| 255 | seal when the petitioner for such order failed to obtain the | 
| 256 | certificate of eligibility as required by this section or when | 
| 257 | such order does not comply with the requirements of this | 
| 258 | section. | 
| 259 | (e)  An order sealing a criminal history record pursuant to | 
| 260 | this section does not require that such record be surrendered to | 
| 261 | the court, and such record shall continue to be maintained by | 
| 262 | the department and other criminal justice agencies. | 
| 263 | (7) (4)EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A | 
| 264 | criminal history record of a minor or an adult which is ordered | 
| 265 | sealed by a court of competent jurisdiction pursuant to this | 
| 266 | section is confidential and exempt from the provisions of s. | 
| 267 | 119.07(1) and s. 24(a), Art. I of the State Constitution and is | 
| 268 | available only to the person who is the subject of the record, | 
| 269 | to the subject's attorney, to criminal justice agencies for | 
| 270 | their respective criminal justice purposes, which include | 
| 271 | conducting a criminal history background check for approval of | 
| 272 | firearms purchases or transfers as authorized by state or | 
| 273 | federal law, or to those entities set forth in subparagraphs | 
| 274 | (a)1., 4., 5., 6., and 8. for their respective licensing, access | 
| 275 | authorization, and employment purposes. | 
| 276 | (a)  The subject of a criminal history record sealed under | 
| 277 | this section or under other provisions of law, including former | 
| 278 | s. 893.14, former s. 901.33, and former s. 943.058, may lawfully | 
| 279 | deny or fail to acknowledge the arrests covered by the sealed | 
| 280 | record, except when the subject of the record: | 
| 281 | 1.  Is a candidate for employment with a criminal justice | 
| 282 | agency; | 
| 283 | 2.  Is a defendant in a criminal prosecution; | 
| 284 | 3.  Concurrently or subsequently petitions for relief under | 
| 285 | this section or s. 943.0585; | 
| 286 | 4.  Is a candidate for admission to The Florida Bar; | 
| 287 | 5.  Is seeking to be employed or licensed by or to contract | 
| 288 | with the Department of Children and Family Services or the | 
| 289 | Department of Juvenile Justice or to be employed or used by such | 
| 290 | contractor or licensee in a sensitive position having direct | 
| 291 | contact with children, the developmentally disabled, the aged, | 
| 292 | or the elderly as provided in s. 110.1127(3), s. 393.063, s. | 
| 293 | 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. | 
| 294 | 409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s. | 
| 295 | 985.644, chapter 400, or chapter 429; | 
| 296 | 6.  Is seeking to be employed or licensed by the Department | 
| 297 | of Education, any district school board, any university | 
| 298 | laboratory school, any charter school, any private or parochial | 
| 299 | school, or any local governmental entity that licenses child | 
| 300 | care facilities; | 
| 301 | 7.  Is attempting to purchase a firearm from a licensed | 
| 302 | importer, licensed manufacturer, or licensed dealer and is | 
| 303 | subject to a criminal history background check under state or | 
| 304 | federal law; or | 
| 305 | 8.  Is seeking authorization from a Florida seaport | 
| 306 | identified in s. 311.09 for employment within or access to one | 
| 307 | or more of such seaports pursuant to s. 311.12 or s. 311.125. | 
| 308 | (b)  Subject to the exceptions in paragraph (a), a person | 
| 309 | who has been granted a sealing under this section, former s. | 
| 310 | 893.14, former s. 901.33, or former s. 943.058 may not be held | 
| 311 | under any provision of law of this state to commit perjury or to | 
| 312 | be otherwise liable for giving a false statement by reason of | 
| 313 | such person's failure to recite or acknowledge a sealed criminal | 
| 314 | history record. | 
| 315 | (c)  Information relating to the existence of a sealed | 
| 316 | criminal record provided in accordance with the provisions of | 
| 317 | paragraph (a) is confidential and exempt from the provisions of | 
| 318 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, | 
| 319 | except that the department shall disclose the sealed criminal | 
| 320 | history record to the entities set forth in subparagraphs (a)1., | 
| 321 | 4., 5., 6., and 8. for their respective licensing, access | 
| 322 | authorization, and employment purposes. It is unlawful for any | 
| 323 | employee of an entity set forth in subparagraph (a)1., | 
| 324 | subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or | 
| 325 | subparagraph (a)8. to disclose information relating to the | 
| 326 | existence of a sealed criminal history record of a person | 
| 327 | seeking employment, access authorization, or licensure with such | 
| 328 | entity or contractor, except to the person to whom the criminal | 
| 329 | history record relates or to persons having direct | 
| 330 | responsibility for employment, access authorization, or | 
| 331 | licensure decisions. Any person who violates the provisions of | 
| 332 | this paragraph commits a misdemeanor of the first degree, | 
| 333 | punishable as provided in s. 775.082 or s. 775.083. | 
| 334 | (8) (5)STATUTORY REFERENCES.--Any reference to any other | 
| 335 | chapter, section, or subdivision of the Florida Statutes in this | 
| 336 | section constitutes a general reference under the doctrine of | 
| 337 | incorporation by reference. | 
| 338 | Section 2.  This act shall take effect July 1, 2008. |