HB 373

1
A bill to be entitled
2An act relating to sealing criminal history records;
3amending s. 943.059, F.S.; permitting the sealing of a
4criminal history record that relates to specified
5misdemeanor violations; defining terms; providing for a
6petition to seal; providing for a certificate of
7eligibility; providing an effective date.
8
9Be It Enacted by the Legislature of the State of Florida:
10
11     Section 1.  Section 943.059, Florida Statutes, is amended
12to read:
13     943.059  Court-ordered sealing of criminal history
14records.--
15     (1)  REQUIREMENTS AND RESTRICTIONS.--The courts of this
16state shall continue to have jurisdiction over their own
17procedures, including the maintenance, sealing, and correction
18of judicial records containing criminal history information to
19the extent such procedures are not inconsistent with the
20conditions, responsibilities, and duties established by this
21section. Any court of competent jurisdiction may order a
22criminal justice agency to seal the criminal history record of a
23minor or an adult who complies with the requirements of this
24section. The court shall not order a criminal justice agency to
25seal a criminal history record until the person seeking to seal
26a criminal history record has applied for and received a
27certificate of eligibility for sealing pursuant to subsection
28(3) or subsection (5) (2). A criminal history record that
29relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
30chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s.
31825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s.
32847.0145, s. 893.135, s. 916.1075, a violation enumerated in s.
33907.041, or any violation specified as a predicate offense for
34registration as a sexual predator pursuant to s. 775.21, without
35regard to whether that offense alone is sufficient to require
36such registration, or for registration as a sexual offender
37pursuant to s. 943.0435, may not be sealed, without regard to
38whether adjudication was withheld, if the defendant was found
39guilty of or pled guilty or nolo contendere to the offense, or
40if the defendant, as a minor, was found to have committed or
41pled guilty or nolo contendere to committing the offense as a
42delinquent act. The court may only order sealing of a criminal
43history record pertaining to one arrest or one incident of
44alleged criminal activity, except as provided in this section.
45The court may, at its sole discretion, order the sealing of a
46criminal history record pertaining to more than one arrest if
47the additional arrests directly relate to the original arrest.
48If the court intends to order the sealing of records pertaining
49to such additional arrests, such intent must be specified in the
50order. A criminal justice agency may not seal any record
51pertaining to such additional arrests if the order to seal does
52not articulate the intention of the court to seal records
53pertaining to more than one arrest. This section does not
54prevent the court from ordering the sealing of only a portion of
55a criminal history record pertaining to one arrest or one
56incident of alleged criminal activity. Notwithstanding any law
57to the contrary, a criminal justice agency may comply with laws,
58court orders, and official requests of other jurisdictions
59relating to sealing, correction, or confidential handling of
60criminal history records or information derived therefrom. This
61section does not confer any right to the sealing of any criminal
62history record, and any request for sealing a criminal history
63record may be denied at the sole discretion of the court.
64     (2)(1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Except
65as provided in subsection (4), each petition to a court to seal
66a criminal history record is complete only when accompanied by:
67     (a)  A valid certificate of eligibility for sealing issued
68by the department pursuant to subsection (3) (2).
69     (b)  The petitioner's sworn statement attesting that the
70petitioner:
71     1.  Has never, prior to the date on which the petition is
72filed, been adjudicated guilty of a criminal offense or
73comparable ordinance violation, or been adjudicated delinquent
74for committing any felony or a misdemeanor specified in s.
75943.051(3)(b).
76     2.  Has not been adjudicated guilty of or adjudicated
77delinquent for committing any of the acts stemming from the
78arrest or alleged criminal activity to which the petition to
79seal pertains.
80     3.  Has never secured a prior sealing or expunction of a
81criminal history record under this section, former s. 893.14,
82former s. 901.33, former s. 943.058, or from any jurisdiction
83outside the state.
84     4.  Is eligible for such a sealing to the best of his or
85her knowledge or belief and does not have any other petition to
86seal or any petition to expunge pending before any court.
87
88Any person who knowingly provides false information on such
89sworn statement to the court commits a felony of the third
90degree, punishable as provided in s. 775.082, s. 775.083, or s.
91775.084.
92     (3)(2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
93petitioning the court to seal a criminal history record, a
94person seeking to seal a criminal history record shall apply to
95the department for a certificate of eligibility for sealing. The
96department shall, by rule adopted pursuant to chapter 120,
97establish procedures pertaining to the application for and
98issuance of certificates of eligibility for sealing. A
99certificate of eligibility for sealing is valid for 12 months
100after the date stamped on the certificate when issued by the
101department. After that time, the petitioner must reapply to the
102department for a new certificate of eligibility. Eligibility for
103a renewed certification of eligibility must be based on the
104status of the applicant and the law in effect at the time of the
105renewal application. Except as provided in subsection (5), the
106department shall issue a certificate of eligibility for sealing
107to a person who is the subject of a criminal history record
108provided that such person:
109     (a)  Has submitted to the department a certified copy of
110the disposition of the charge to which the petition to seal
111pertains.
112     (b)  Remits a $75 processing fee to the department for
113placement in the Department of Law Enforcement Operating Trust
114Fund, unless such fee is waived by the executive director.
115     (c)  Has never, prior to the date on which the application
116for a certificate of eligibility is filed, been adjudicated
117guilty of a criminal offense or comparable ordinance violation,
118or been adjudicated delinquent for committing any felony or a
119misdemeanor specified in s. 943.051(3)(b).
120     (d)  Has not been adjudicated guilty of or adjudicated
121delinquent for committing any of the acts stemming from the
122arrest or alleged criminal activity to which the petition to
123seal pertains.
124     (e)  Has never secured a prior sealing or expunction of a
125criminal history record under this section, former s. 893.14,
126former s. 901.33, or former s. 943.058.
127     (f)  Is no longer under court supervision applicable to the
128disposition of the arrest or alleged criminal activity to which
129the petition to seal pertains.
130     (4)  PETITION TO SEAL A CRIMINAL HISTORY RECORD RELATING TO
131CERTAIN MISDEMEANORS.--
132     (a)  For purposes of this subsection and subsection (5),
133the term "specially sealable misdemeanor" means a misdemeanor
134violation of s. 562.11(2), s. 562.111, s. 806.101, s. 806.13, s.
135s. 810.08, s. 810.09, s. 810.10, s. 810.11, s. 810.115, s.
136810.13, s. 823.01, s. 823.02, s. 856.011, s. 856.015, s. 870.02,
137or chapter 893 in which the petitioner was adjudicated guilty or
138delinquent.
139     (b)  Each petition to a court to seal a criminal history
140record that relates to a specially sealable misdemeanor is
141complete only when accompanied by:
142     1.  A valid certificate of eligibility for sealing issued
143by 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
146delinquent for committing a specially sealable misdemeanor to
147which the petition to seal pertains, the petitioner has never,
148prior to the date on which the petition is filed, been
149adjudicated guilty of a criminal offense or comparable ordinance
150violation or been adjudicated delinquent for committing any
151felony or a misdemeanor specified in s. 943.051(3)(b).
152     b.  The petitioner was adjudicated guilty or delinquent of
153a specially sealable misdemeanor to which the petition pertains
154more than 10 years prior to the date on which the petition is
155filed.
156     c.  The petitioner has never secured a prior sealing or
157expunction of a criminal history record under this section,
158former s. 893.14, former s. 901.33, or former s. 943.058, or
159from any jurisdiction outside the state.
160     d.  The petitioner is eligible for such a sealing to the
161best of his or her knowledge or belief and does not have any
162other petition to seal or any petition to expunge pending before
163any court.
164
165Any person who knowingly provides false information on such
166sworn statement to the court commits a felony of the third
167degree, punishable as provided in s. 775.082, s. 775.083, or s.
168775.084.
169     (5)  CERTIFICATE OF ELIGIBILITY FOR SEALING A CRIMINAL
170HISTORY RECORD RELATING TO CERTAIN MISDEMEANORS.--Prior to
171petitioning the court to seal a criminal history record relating
172to a specially sealable misdemeanor, a person seeking to seal a
173criminal history record shall apply to the department for a
174certificate of eligibility for sealing. The department shall, by
175rule adopted pursuant to chapter 120, establish procedures
176pertaining to the application for and issuance of certificates
177of eligibility for sealing. The department shall endeavor to
178make forms and procedures as simple to use as possible in order
179to facilitate applicants who are proceeding without assistance.
180A certificate of eligibility for sealing is valid for 12 months
181after the date stamped on the certificate when issued by the
182department. After that time, the petitioner must reapply to the
183department for a new certificate of eligibility. Eligibility for
184a renewed certification of eligibility must be based on the
185status of the applicant and the law in effect at the time of the
186renewal application. The department shall issue a certificate of
187eligibility for sealing to a person who is the subject of a
188criminal history record provided that such person:
189     (a)  Has submitted to the department a certified copy of
190the disposition of the charge to which the petition to seal
191pertains.
192     (b)  Remits a $75 processing fee to the department for
193placement in the Department of Law Enforcement Operating Trust
194Fund, unless such fee is waived by the executive director.
195     (c)  With the exception of being adjudicated guilty or
196delinquent for committing a misdemeanor violation of a provision
197listed in paragraph (4)(a) to which the petition to seal
198pertains, has never, prior to the date on which the application
199for a certificate of eligibility is filed, been adjudicated
200guilty of a criminal offense or comparable ordinance violation
201or been adjudicated delinquent for committing any felony or a
202misdemeanor specified in s. 943.051(3)(b).
203     (d)  Was adjudicated guilty or delinquent for a specially
204sealable misdemeanor to which the petition pertains more than 10
205years prior to the date on which the petition is filed.
206     (e)  Has never secured a prior sealing or expunction of a
207criminal history record under this section, former s. 893.14,
208former s. 901.33, or former s. 943.058.
209     (f)  Is no longer under court supervision applicable to the
210disposition of the arrest or alleged criminal activity to which
211the 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
214the completed petition to seal shall be served upon the
215appropriate state attorney or the statewide prosecutor and upon
216the arresting agency; however, it is not necessary to make any
217agency other than the state a party. The appropriate state
218attorney or the statewide prosecutor and the arresting agency
219may respond to the court regarding the completed petition to
220seal.
221     (b)  If relief is granted by the court, the clerk of the
222court shall certify copies of the order to the appropriate state
223attorney or the statewide prosecutor and to the arresting
224agency. The arresting agency is responsible for forwarding the
225order to any other agency to which the arresting agency
226disseminated the criminal history record information to which
227the order pertains. The department shall forward the order to
228seal to the Federal Bureau of Investigation. The clerk of the
229court shall certify a copy of the order to any other agency
230which the records of the court reflect has received the criminal
231history record from the court.
232     (c)  For an order to seal entered by a court prior to July
2331, 1992, the department shall notify the appropriate state
234attorney or statewide prosecutor of any order to seal which is
235contrary to law because the person who is the subject of the
236record has previously been convicted of a crime or comparable
237ordinance violation or has had a prior criminal history record
238sealed or expunged. Upon receipt of such notice, the appropriate
239state attorney or statewide prosecutor shall take action, within
24060 days, to correct the record and petition the court to void
241the order to seal. The department shall seal the record until
242such time as the order is voided by the court.
243     (d)  On or after July 1, 1992, the department or any other
244criminal justice agency is not required to act on an order to
245seal entered by a court when such order does not comply with the
246requirements of this section. Upon receipt of such an order, the
247department must notify the issuing court, the appropriate state
248attorney or statewide prosecutor, the petitioner or the
249petitioner's attorney, and the arresting agency of the reason
250for noncompliance. The appropriate state attorney or statewide
251prosecutor shall take action within 60 days to correct the
252record and petition the court to void the order. No cause of
253action, including contempt of court, shall arise against any
254criminal justice agency for failure to comply with an order to
255seal when the petitioner for such order failed to obtain the
256certificate of eligibility as required by this section or when
257such order does not comply with the requirements of this
258section.
259     (e)  An order sealing a criminal history record pursuant to
260this section does not require that such record be surrendered to
261the court, and such record shall continue to be maintained by
262the department and other criminal justice agencies.
263     (7)(4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
264criminal history record of a minor or an adult which is ordered
265sealed by a court of competent jurisdiction pursuant to this
266section is confidential and exempt from the provisions of s.
267119.07(1) and s. 24(a), Art. I of the State Constitution and is
268available only to the person who is the subject of the record,
269to the subject's attorney, to criminal justice agencies for
270their respective criminal justice purposes, which include
271conducting a criminal history background check for approval of
272firearms purchases or transfers as authorized by state or
273federal law, or to those entities set forth in subparagraphs
274(a)1., 4., 5., 6., and 8. for their respective licensing, access
275authorization, and employment purposes.
276     (a)  The subject of a criminal history record sealed under
277this section or under other provisions of law, including former
278s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
279deny or fail to acknowledge the arrests covered by the sealed
280record, except when the subject of the record:
281     1.  Is a candidate for employment with a criminal justice
282agency;
283     2.  Is a defendant in a criminal prosecution;
284     3.  Concurrently or subsequently petitions for relief under
285this 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
288with the Department of Children and Family Services or the
289Department of Juvenile Justice or to be employed or used by such
290contractor or licensee in a sensitive position having direct
291contact with children, the developmentally disabled, the aged,
292or the elderly as provided in s. 110.1127(3), s. 393.063, s.
293394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s.
294409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s.
295985.644, chapter 400, or chapter 429;
296     6.  Is seeking to be employed or licensed by the Department
297of Education, any district school board, any university
298laboratory school, any charter school, any private or parochial
299school, or any local governmental entity that licenses child
300care facilities;
301     7.  Is attempting to purchase a firearm from a licensed
302importer, licensed manufacturer, or licensed dealer and is
303subject to a criminal history background check under state or
304federal law; or
305     8.  Is seeking authorization from a Florida seaport
306identified in s. 311.09 for employment within or access to one
307or more of such seaports pursuant to s. 311.12 or s. 311.125.
308     (b)  Subject to the exceptions in paragraph (a), a person
309who has been granted a sealing under this section, former s.
310893.14, former s. 901.33, or former s. 943.058 may not be held
311under any provision of law of this state to commit perjury or to
312be otherwise liable for giving a false statement by reason of
313such person's failure to recite or acknowledge a sealed criminal
314history record.
315     (c)  Information relating to the existence of a sealed
316criminal record provided in accordance with the provisions of
317paragraph (a) is confidential and exempt from the provisions of
318s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
319except that the department shall disclose the sealed criminal
320history record to the entities set forth in subparagraphs (a)1.,
3214., 5., 6., and 8. for their respective licensing, access
322authorization, and employment purposes. It is unlawful for any
323employee of an entity set forth in subparagraph (a)1.,
324subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
325subparagraph (a)8. to disclose information relating to the
326existence of a sealed criminal history record of a person
327seeking employment, access authorization, or licensure with such
328entity or contractor, except to the person to whom the criminal
329history record relates or to persons having direct
330responsibility for employment, access authorization, or
331licensure decisions. Any person who violates the provisions of
332this paragraph commits a misdemeanor of the first degree,
333punishable as provided in s. 775.082 or s. 775.083.
334     (8)(5)  STATUTORY REFERENCES.--Any reference to any other
335chapter, section, or subdivision of the Florida Statutes in this
336section constitutes a general reference under the doctrine of
337incorporation by reference.
338     Section 2.  This act shall take effect July 1, 2008.


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