Florida Senate - 2010                                    SB 1214
       
       
       
       By Senator Smith
       
       
       
       
       29-01185-10                                           20101214__
    1                        A bill to be entitled                      
    2         An act relating to expunging criminal history records;
    3         creating s. 943.0595, F.S.; providing for the
    4         automatic expunction of criminal history records in
    5         specified circumstances; providing procedures to
    6         expunge a criminal history record; providing for the
    7         effect of expunction; providing that expunction
    8         granted under this section does not prevent a person
    9         who receives such relief from petitioning for the
   10         expunction or sealing of a criminal history record
   11         under other provisions of law; providing for treatment
   12         of certain statutory cross-references; amending ss.
   13         943.0582, 943.0585, 943.059, 948.08, 948.16, 961.06,
   14         and 985.345, F.S.; conforming provisions to changes
   15         made by the act; providing an effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 943.0595, Florida Statutes, is created
   20  to read:
   21         943.0595Automatic qualification for expunction of criminal
   22  history record if no finding of guilt.—
   23         (1)QUALIFICATION.—
   24         (a)Notwithstanding any law dealing generally with the
   25  preservation and destruction of public records, a criminal
   26  history record relating to a person who has not been found
   27  guilty of, or not pled guilty or nolo contendere to, an offense
   28  automatically qualifies for expunction. The record must be
   29  expunged if:
   30         1.An indictment, information, or other charging document
   31  was not filed or issued in the case;
   32         2.An indictment, information, or other charging document
   33  was filed or issued in the case and was dismissed or nolle
   34  prosequi by the state attorney or statewide prosecutor or was
   35  dismissed by a court of competent jurisdiction; or
   36         3.The person was found not guilty or acquitted by a judge
   37  or jury.
   38         (b)If the person was adjudicated guilty of or adjudicated
   39  delinquent for committing any of the acts stemming from the
   40  arrest or alleged criminal activity or delinquent act, the
   41  record does not qualify for automatic expunction.
   42         (2)PETITION.—Each petition to a court to expunge a
   43  criminal history record is complete only when accompanied by a
   44  certified copy of the disposition of the offenses sought to be
   45  sealed.
   46         (3)PROCESSING OF PETITION.—
   47         (a)A certificate of eligibility for expunction from the
   48  department may not be required under this section.
   49         (b)A court of competent jurisdiction may order a criminal
   50  justice agency to expunge the criminal history record of a minor
   51  or an adult whose record qualifies for automatic expunction
   52  under this section.
   53         (c)In a judicial proceeding under this section, a copy of
   54  the completed petition to expunge shall be served upon the
   55  appropriate state attorney or the statewide prosecutor and upon
   56  the arresting agency; however, it is not necessary to make any
   57  agency other than the state a party. The appropriate state
   58  attorney or the statewide prosecutor and the arresting agency
   59  may respond to the court regarding the completed petition to
   60  expunge.
   61         (d)Notwithstanding ss. 943.0585 and 943.059 and any other
   62  law, the court may order expunction of a criminal history record
   63  pertaining to more than one arrest or one incident of alleged
   64  criminal activity if the person has not been adjudicated guilty
   65  of or adjudicated delinquent for committing any of the acts
   66  stemming from the arrest or alleged criminal activity or
   67  delinquent act to which the petition to expunge pertains.
   68         (e)If relief is granted by the court, the clerk of the
   69  court shall certify copies of the order to the appropriate state
   70  attorney or the statewide prosecutor, to the county, and to the
   71  arresting agency. The arresting agency is responsible for
   72  forwarding the order to any other agency to which the arresting
   73  agency disseminated the criminal history record information to
   74  which the order pertains. The department shall forward the order
   75  to expunge to the Federal Bureau of Investigation. The clerk of
   76  the court shall certify a copy of the order to any other agency
   77  that court records indicate has received the criminal history
   78  record from the court. The county is responsible for forwarding
   79  the order to any agency, organization, or company to which the
   80  county disseminated the criminal history information to which
   81  the order pertains.
   82         (f)The department or any other criminal justice agency is
   83  not required to act on an order to expunge entered by a court
   84  when the order does not comply with the requirements of this
   85  section. Upon receipt of such an order, the department must
   86  notify the issuing court, the appropriate state attorney or the
   87  statewide prosecutor, the petitioner or the petitioner’s
   88  attorney, and the arresting agency within 5 business days after
   89  determining that the department or the agency cannot comply with
   90  the court order. The appropriate state attorney or the statewide
   91  prosecutor shall take action within 60 days to correct the
   92  record and petition the court to void the order. A cause of
   93  action, including contempt of court, may not arise against any
   94  criminal justice agency for failing to comply with an order to
   95  expunge when the order does not comply with the requirements of
   96  this section.
   97         (g)An order expunging a criminal history record pursuant
   98  to this section does not require that the record be surrendered
   99  to the court and the record shall continue to be maintained by
  100  the department and other criminal justice agencies.
  101         (4)SECTION NOT EXCLUSIVE.—Expunction granted under this
  102  section does not prevent the person who receives such relief
  103  from petitioning for the expunction or sealing of a criminal
  104  history record as provided for in ss. 943.0585 and 943.059 if
  105  the person is otherwise eligible under those sections.
  106         (5)STATUTORY REFERENCES.—Any reference to any other
  107  chapter, section, or subdivision of the Florida Statutes in this
  108  section constitutes a general reference under the doctrine of
  109  incorporation by reference.
  110         Section 2. Subsection (6) of section 943.0582, Florida
  111  Statutes, is amended to read:
  112         943.0582 Prearrest, postarrest, or teen court diversion
  113  program expunction.—
  114         (6) Expunction or sealing granted under this section does
  115  not prevent the minor who receives such relief from petitioning
  116  for the expunction or sealing of a later criminal history record
  117  as provided for in ss. 943.0585, and 943.059, and 943.0595 if
  118  the minor is otherwise eligible under those sections.
  119         Section 3. Paragraph (a) of subsection (4) of section
  120  943.0585, Florida Statutes, is amended to read:
  121         943.0585 Court-ordered expunction of criminal history
  122  records.—The courts of this state have jurisdiction over their
  123  own procedures, including the maintenance, expunction, and
  124  correction of judicial records containing criminal history
  125  information to the extent such procedures are not inconsistent
  126  with the conditions, responsibilities, and duties established by
  127  this section. Any court of competent jurisdiction may order a
  128  criminal justice agency to expunge the criminal history record
  129  of a minor or an adult who complies with the requirements of
  130  this section. The court shall not order a criminal justice
  131  agency to expunge a criminal history record until the person
  132  seeking to expunge a criminal history record has applied for and
  133  received a certificate of eligibility for expunction pursuant to
  134  subsection (2). A criminal history record that relates to a
  135  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  136  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  137  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  138  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  139  any violation specified as a predicate offense for registration
  140  as a sexual predator pursuant to s. 775.21, without regard to
  141  whether that offense alone is sufficient to require such
  142  registration, or for registration as a sexual offender pursuant
  143  to s. 943.0435, may not be expunged, without regard to whether
  144  adjudication was withheld, if the defendant was found guilty of
  145  or pled guilty or nolo contendere to the offense, or if the
  146  defendant, as a minor, was found to have committed, or pled
  147  guilty or nolo contendere to committing, the offense as a
  148  delinquent act. The court may only order expunction of a
  149  criminal history record pertaining to one arrest or one incident
  150  of alleged criminal activity, except as provided in this
  151  section. The court may, at its sole discretion, order the
  152  expunction of a criminal history record pertaining to more than
  153  one arrest if the additional arrests directly relate to the
  154  original arrest. If the court intends to order the expunction of
  155  records pertaining to such additional arrests, such intent must
  156  be specified in the order. A criminal justice agency may not
  157  expunge any record pertaining to such additional arrests if the
  158  order to expunge does not articulate the intention of the court
  159  to expunge a record pertaining to more than one arrest. This
  160  section does not prevent the court from ordering the expunction
  161  of only a portion of a criminal history record pertaining to one
  162  arrest or one incident of alleged criminal activity.
  163  Notwithstanding any law to the contrary, a criminal justice
  164  agency may comply with laws, court orders, and official requests
  165  of other jurisdictions relating to expunction, correction, or
  166  confidential handling of criminal history records or information
  167  derived therefrom. This section does not confer any right to the
  168  expunction of any criminal history record, and any request for
  169  expunction of a criminal history record may be denied at the
  170  sole discretion of the court.
  171         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  172  criminal history record of a minor or an adult which is ordered
  173  expunged by a court of competent jurisdiction pursuant to this
  174  section must be physically destroyed or obliterated by any
  175  criminal justice agency having custody of such record; except
  176  that any criminal history record in the custody of the
  177  department must be retained in all cases. A criminal history
  178  record ordered expunged that is retained by the department is
  179  confidential and exempt from the provisions of s. 119.07(1) and
  180  s. 24(a), Art. I of the State Constitution and not available to
  181  any person or entity except upon order of a court of competent
  182  jurisdiction. A criminal justice agency may retain a notation
  183  indicating compliance with an order to expunge.
  184         (a) The person who is the subject of a criminal history
  185  record that is expunged under this section or under other
  186  provisions of law, including former s. 893.14, former s. 901.33,
  187  and former s. 943.058, may lawfully deny or fail to acknowledge
  188  the arrests covered by the expunged record, except when the
  189  subject of the record:
  190         1. Is a candidate for employment with a criminal justice
  191  agency;
  192         2. Is a defendant in a criminal prosecution;
  193         3. Concurrently or subsequently petitions for relief under
  194  this section, or s. 943.059, or s. 943.0595;
  195         4. Is a candidate for admission to The Florida Bar;
  196         5. Is seeking to be employed or licensed by or to contract
  197  with the Department of Children and Family Services, the Agency
  198  for Health Care Administration, the Agency for Persons with
  199  Disabilities, or the Department of Juvenile Justice or to be
  200  employed or used by such contractor or licensee in a sensitive
  201  position having direct contact with children, the
  202  developmentally disabled, the aged, or the elderly as provided
  203  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  204  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
  205  chapter 916, s. 985.644, chapter 400, or chapter 429;
  206         6. Is seeking to be employed or licensed by the Department
  207  of Education, any district school board, any university
  208  laboratory school, any charter school, any private or parochial
  209  school, or any local governmental entity that licenses child
  210  care facilities; or
  211         7. Is seeking authorization from a seaport listed in s.
  212  311.09 for employment within or access to one or more of such
  213  seaports pursuant to s. 311.12.
  214         Section 4. Paragraph (a) of subsection (4) of section
  215  943.059, Florida Statutes, is amended to read:
  216         943.059 Court-ordered sealing of criminal history records.
  217  The courts of this state shall continue to have jurisdiction
  218  over their own procedures, including the maintenance, sealing,
  219  and correction of judicial records containing criminal history
  220  information to the extent such procedures are not inconsistent
  221  with the conditions, responsibilities, and duties established by
  222  this section. Any court of competent jurisdiction may order a
  223  criminal justice agency to seal the criminal history record of a
  224  minor or an adult who complies with the requirements of this
  225  section. The court shall not order a criminal justice agency to
  226  seal a criminal history record until the person seeking to seal
  227  a criminal history record has applied for and received a
  228  certificate of eligibility for sealing pursuant to subsection
  229  (2). A criminal history record that relates to a violation of s.
  230  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  231  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  232  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  233  916.1075, a violation enumerated in s. 907.041, or any violation
  234  specified as a predicate offense for registration as a sexual
  235  predator pursuant to s. 775.21, without regard to whether that
  236  offense alone is sufficient to require such registration, or for
  237  registration as a sexual offender pursuant to s. 943.0435, may
  238  not be sealed, without regard to whether adjudication was
  239  withheld, if the defendant was found guilty of or pled guilty or
  240  nolo contendere to the offense, or if the defendant, as a minor,
  241  was found to have committed or pled guilty or nolo contendere to
  242  committing the offense as a delinquent act. The court may only
  243  order sealing of a criminal history record pertaining to one
  244  arrest or one incident of alleged criminal activity, except as
  245  provided in this section. The court may, at its sole discretion,
  246  order the sealing of a criminal history record pertaining to
  247  more than one arrest if the additional arrests directly relate
  248  to the original arrest. If the court intends to order the
  249  sealing of records pertaining to such additional arrests, such
  250  intent must be specified in the order. A criminal justice agency
  251  may not seal any record pertaining to such additional arrests if
  252  the order to seal does not articulate the intention of the court
  253  to seal records pertaining to more than one arrest. This section
  254  does not prevent the court from ordering the sealing of only a
  255  portion of a criminal history record pertaining to one arrest or
  256  one incident of alleged criminal activity. Notwithstanding any
  257  law to the contrary, a criminal justice agency may comply with
  258  laws, court orders, and official requests of other jurisdictions
  259  relating to sealing, correction, or confidential handling of
  260  criminal history records or information derived therefrom. This
  261  section does not confer any right to the sealing of any criminal
  262  history record, and any request for sealing a criminal history
  263  record may be denied at the sole discretion of the court.
  264         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  265  history record of a minor or an adult which is ordered sealed by
  266  a court of competent jurisdiction pursuant to this section is
  267  confidential and exempt from the provisions of s. 119.07(1) and
  268  s. 24(a), Art. I of the State Constitution and is available only
  269  to the person who is the subject of the record, to the subject’s
  270  attorney, to criminal justice agencies for their respective
  271  criminal justice purposes, which include conducting a criminal
  272  history background check for approval of firearms purchases or
  273  transfers as authorized by state or federal law, to judges in
  274  the state courts system for the purpose of assisting them in
  275  their case-related decisionmaking responsibilities, as set forth
  276  in s. 943.053(5), or to those entities set forth in
  277  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  278  licensing, access authorization, and employment purposes.
  279         (a) The subject of a criminal history record sealed under
  280  this section or under other provisions of law, including former
  281  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  282  deny or fail to acknowledge the arrests covered by the sealed
  283  record, except when the subject of the record:
  284         1. Is a candidate for employment with a criminal justice
  285  agency;
  286         2. Is a defendant in a criminal prosecution;
  287         3. Concurrently or subsequently petitions for relief under
  288  this section, or s. 943.0585, or s. 943.0595;
  289         4. Is a candidate for admission to The Florida Bar;
  290         5. Is seeking to be employed or licensed by or to contract
  291  with the Department of Children and Family Services, the Agency
  292  for Health Care Administration, the Agency for Persons with
  293  Disabilities, or the Department of Juvenile Justice or to be
  294  employed or used by such contractor or licensee in a sensitive
  295  position having direct contact with children, the
  296  developmentally disabled, the aged, or the elderly as provided
  297  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  298  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
  299  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
  300         6. Is seeking to be employed or licensed by the Department
  301  of Education, any district school board, any university
  302  laboratory school, any charter school, any private or parochial
  303  school, or any local governmental entity that licenses child
  304  care facilities;
  305         7. Is attempting to purchase a firearm from a licensed
  306  importer, licensed manufacturer, or licensed dealer and is
  307  subject to a criminal history check under state or federal law;
  308  or
  309         8. Is seeking authorization from a Florida seaport
  310  identified in s. 311.09 for employment within or access to one
  311  or more of such seaports pursuant to s. 311.12.
  312         Section 5. Paragraph (b) of subsection (6) of section
  313  948.08, Florida Statutes, is amended to read:
  314         948.08 Pretrial intervention program.—
  315         (6)
  316         (b) While enrolled in a pretrial intervention program
  317  authorized by this subsection, the participant is subject to a
  318  coordinated strategy developed by a drug court team under s.
  319  397.334(4). The coordinated strategy may include a protocol of
  320  sanctions that may be imposed upon the participant for
  321  noncompliance with program rules. The protocol of sanctions may
  322  include, but is not limited to, placement in a substance abuse
  323  treatment program offered by a licensed service provider as
  324  defined in s. 397.311 or in a jail-based treatment program or
  325  serving a period of incarceration within the time limits
  326  established for contempt of court. The coordinated strategy must
  327  be provided in writing to the participant before the participant
  328  agrees to enter into a pretrial treatment-based drug court
  329  program or other pretrial intervention program. Any person whose
  330  charges are dismissed after successful completion of the
  331  treatment-based drug court program, if otherwise eligible, may
  332  have his or her arrest record and plea of nolo contendere to the
  333  dismissed charges expunged under s. 943.0585 or s. 943.0595.
  334         Section 6. Paragraph (b) of subsection (1) of section
  335  948.16, Florida Statutes, is amended to read:
  336         948.16 Misdemeanor pretrial substance abuse education and
  337  treatment intervention program.—
  338         (1)
  339         (b) While enrolled in a pretrial intervention program
  340  authorized by this section, the participant is subject to a
  341  coordinated strategy developed by a drug court team under s.
  342  397.334(4). The coordinated strategy may include a protocol of
  343  sanctions that may be imposed upon the participant for
  344  noncompliance with program rules. The protocol of sanctions may
  345  include, but is not limited to, placement in a substance abuse
  346  treatment program offered by a licensed service provider as
  347  defined in s. 397.311 or in a jail-based treatment program or
  348  serving a period of incarceration within the time limits
  349  established for contempt of court. The coordinated strategy must
  350  be provided in writing to the participant before the participant
  351  agrees to enter into a pretrial treatment-based drug court
  352  program or other pretrial intervention program. Any person whose
  353  charges are dismissed after successful completion of the
  354  treatment-based drug court program, if otherwise eligible, may
  355  have his or her arrest record and plea of nolo contendere to the
  356  dismissed charges expunged under s. 943.0585 or s. 943.0595.
  357         Section 7. Subsection (1) of section 961.06, Florida
  358  Statutes, is amended to read:
  359         961.06 Compensation for wrongful incarceration.—
  360         (1) Except as otherwise provided in this act and subject to
  361  the limitations and procedures prescribed in this section, a
  362  person who is found to be entitled to compensation under the
  363  provisions of this act is entitled to:
  364         (a) Monetary compensation for wrongful incarceration, which
  365  shall be calculated at a rate of $50,000 for each year of
  366  wrongful incarceration, prorated as necessary to account for a
  367  portion of a year. For persons found to be wrongfully
  368  incarcerated after December 31, 2008, the Chief Financial
  369  Officer may adjust the annual rate of compensation for inflation
  370  using the change in the December-to-December “Consumer Price
  371  Index for All Urban Consumers” of the Bureau of Labor Statistics
  372  of the Department of Labor;
  373         (b) A waiver of tuition and fees for up to 120 hours of
  374  instruction at any career center established under s. 1001.44,
  375  any community college as defined in s. 1000.21(3), or any state
  376  university as defined in s. 1000.21(6), if the wrongfully
  377  incarcerated person meets and maintains the regular admission
  378  requirements of such career center, community college, or state
  379  university; remains registered at such educational institution;
  380  and makes satisfactory academic progress as defined by the
  381  educational institution in which the claimant is enrolled;
  382         (c) The amount of any fine, penalty, or court costs imposed
  383  and paid by the wrongfully incarcerated person;
  384         (d) The amount of any reasonable attorney’s fees and
  385  expenses incurred and paid by the wrongfully incarcerated person
  386  in connection with all criminal proceedings and appeals
  387  regarding the wrongful conviction, to be calculated by the
  388  department based upon the supporting documentation submitted as
  389  specified in s. 961.05; and
  390         (e) Notwithstanding any provision to the contrary in s.
  391  943.0585 or s. 943.0595, immediate administrative expunction of
  392  the person’s criminal record resulting from his or her wrongful
  393  arrest, wrongful conviction, and wrongful incarceration. The
  394  Department of Legal Affairs and the Department of Law
  395  Enforcement shall, upon a determination that a claimant is
  396  entitled to compensation, immediately take all action necessary
  397  to administratively expunge the claimant’s criminal record
  398  arising from his or her wrongful arrest, wrongful conviction,
  399  and wrongful incarceration. All fees for this process shall be
  400  waived.
  401  
  402  The total compensation awarded under paragraphs (a), (c), and
  403  (d) may not exceed $2 million. No further award for attorney’s
  404  fees, lobbying fees, costs, or other similar expenses shall be
  405  made by the state.
  406         Section 8. Subsection (2) of section 985.345, Florida
  407  Statutes, is amended to read:
  408         985.345 Delinquency pretrial intervention program.—
  409         (2) While enrolled in a delinquency pretrial intervention
  410  program authorized by this section, a child is subject to a
  411  coordinated strategy developed by a drug court team under s.
  412  397.334(4). The coordinated strategy may include a protocol of
  413  sanctions that may be imposed upon the child for noncompliance
  414  with program rules. The protocol of sanctions may include, but
  415  is not limited to, placement in a substance abuse treatment
  416  program offered by a licensed service provider as defined in s.
  417  397.311 or serving a period of secure detention under this
  418  chapter. The coordinated strategy must be provided in writing to
  419  the child before the child agrees to enter the pretrial
  420  treatment-based drug court program or other pretrial
  421  intervention program. Any child whose charges are dismissed
  422  after successful completion of the treatment-based drug court
  423  program, if otherwise eligible, may have his or her arrest
  424  record and plea of nolo contendere to the dismissed charges
  425  expunged under s. 943.0585 or s. 943.0595.
  426         Section 9. This act shall take effect July 1, 2010.