HB 541

1
A bill to be entitled
2An act relating to expunging criminal history records;
3creating s. 943.0595, F.S.; permitting automatic
4expunction of criminal history records in specified
5circumstances; providing procedures; providing for effect
6of expunction; providing for treatment of certain
7statutory cross-references; amending ss. 943.0582,
8943.0585, 943.059, 948.08, 948.16, 961.06, and 985.345,
9F.S.; conforming provisions; providing an effective date.
10
11Be It Enacted by the Legislature of the State of Florida:
12
13     Section 1.  Section 943.0595, Florida Statutes, is created
14to read:
15     943.0595  Automatic qualification for expunction of
16criminal history record if no finding of guilt.-
17     (1)  QUALIFICATION.-
18     (a)  Notwithstanding any law dealing generally with the
19preservation and destruction of public records, a criminal
20history record relating to a person who has not been found
21guilty of, or not pled guilty or nolo contendere to, an offense
22automatically qualifies for expunction. The record shall be
23expunged if:
24     1.  An indictment, information, or other charging document
25was not filed or issued in the case;
26     2.  An indictment, information, or other charging document
27was filed or issued in the case and was dismissed or nolle
28prosequi by the state attorney or statewide prosecutor or was
29dismissed by a court of competent jurisdiction; or
30     3.  The person was found not guilty or acquitted by a judge
31or jury.
32     (b)  If the person was adjudicated guilty of or adjudicated
33delinquent for committing any of the acts stemming from the
34arrest or alleged criminal activity or delinquent act, the
35record does not qualify for automatic expunction.
36     (2)  PETITION.-Each petition to a court to expunge a
37criminal history record is complete only when accompanied by a
38certified copy of the disposition of the offenses sought to be
39sealed.
40     (3)  PROCESSING OF PETITION.-
41     (a)  A certificate of eligibility for expunction from the
42department shall not be required under this section.
43     (b)  Any court of competent jurisdiction may order a
44criminal justice agency to expunge the criminal history record
45of a minor or an adult whose record qualifies for automatic
46expunction under this section.
47     (c)  In judicial proceedings under this section, a copy of
48the completed petition to expunge shall be served upon the
49appropriate state attorney or the statewide prosecutor and upon
50the arresting agency; however, it is not necessary to make any
51agency other than the state a party. The appropriate state
52attorney or the statewide prosecutor and the arresting agency
53may respond to the court regarding the completed petition to
54expunge.
55     (d)  Notwithstanding ss. 943.0585 and 943.059 and any other
56provision of law, the court may order expunction of a criminal
57history record pertaining to more than one arrest or one
58incident of alleged criminal activity if the person has not been
59adjudicated guilty of or adjudicated delinquent for committing
60any of the acts stemming from the arrest or alleged criminal
61activity or delinquent act to which the petition to expunge
62pertains.
63     (e)  If relief is granted by the court, the clerk of the
64court shall certify copies of the order to the appropriate state
65attorney or the statewide prosecutor, to the county, and to the
66arresting agency. The arresting agency is responsible for
67forwarding the order to any other agency to which the arresting
68agency disseminated the criminal history record information to
69which the order pertains. The department shall forward the order
70to expunge to the Federal Bureau of Investigation. The clerk of
71the court shall certify a copy of the order to any other agency
72that court records indicate has received the criminal history
73record from the court. The county is responsible for forwarding
74the order to any agency, organization, or company to which the
75county disseminated the criminal history information to which
76the order pertains.
77     (f)  The department or any other criminal justice agency is
78not required to act on an order to expunge entered by a court
79when such order does not comply with the requirements of this
80section. Upon receipt of such an order, the department must
81notify the issuing court, the appropriate state attorney or the
82statewide prosecutor, the petitioner or the petitioner's
83attorney, and the arresting agency within 5 business days after
84determining that the department or the agency cannot comply with
85the court order. The appropriate state attorney or the statewide
86prosecutor shall take action within 60 days to correct the
87record and petition the court to void the order. No cause of
88action, including contempt of court, shall arise against any
89criminal justice agency for failure to comply with an order to
90expunge when such order does not comply with the requirements of
91this section.
92     (g)  An order expunging a criminal history record pursuant
93to this section does not require that such record be surrendered
94to the court, and such record shall continue to be maintained by
95the department and other criminal justice agencies.
96     (4)  SECTION NOT EXCLUSIVE.-Expunction granted under this
97section does not prevent the person who receives such relief
98from petitioning for the expunction or sealing of a criminal
99history record as provided for in ss. 943.0585 and 943.059 if
100the person is otherwise eligible under those sections.
101     (5)  STATUTORY REFERENCES.-Any reference to any other
102chapter, section, or subdivision of the Florida Statutes in this
103section constitutes a general reference under the doctrine of
104incorporation by reference.
105     Section 2.  Subsection (6) of section 943.0582, Florida
106Statutes, is amended to read:
107     943.0582  Prearrest, postarrest, or teen court diversion
108program expunction.-
109     (6)  Expunction or sealing granted under this section does
110not prevent the minor who receives such relief from petitioning
111for the expunction or sealing of a later criminal history record
112as provided for in ss. 943.0585, and 943.059, and 943.0595 if
113the minor is otherwise eligible under those sections.
114     Section 3.  Paragraph (a) of subsection (4) of section
115943.0585, Florida Statutes, is amended to read:
116     943.0585  Court-ordered expunction of criminal history
117records.-The courts of this state have jurisdiction over their
118own procedures, including the maintenance, expunction, and
119correction of judicial records containing criminal history
120information to the extent such procedures are not inconsistent
121with the conditions, responsibilities, and duties established by
122this section. Any court of competent jurisdiction may order a
123criminal justice agency to expunge the criminal history record
124of a minor or an adult who complies with the requirements of
125this section. The court shall not order a criminal justice
126agency to expunge a criminal history record until the person
127seeking to expunge a criminal history record has applied for and
128received a certificate of eligibility for expunction pursuant to
129subsection (2). A criminal history record that relates to a
130violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
131s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
132827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
133893.135, s. 916.1075, a violation enumerated in s. 907.041, or
134any violation specified as a predicate offense for registration
135as a sexual predator pursuant to s. 775.21, without regard to
136whether that offense alone is sufficient to require such
137registration, or for registration as a sexual offender pursuant
138to s. 943.0435, may not be expunged, without regard to whether
139adjudication was withheld, if the defendant was found guilty of
140or pled guilty or nolo contendere to the offense, or if the
141defendant, as a minor, was found to have committed, or pled
142guilty or nolo contendere to committing, the offense as a
143delinquent act. The court may only order expunction of a
144criminal history record pertaining to one arrest or one incident
145of alleged criminal activity, except as provided in this
146section. The court may, at its sole discretion, order the
147expunction of a criminal history record pertaining to more than
148one arrest if the additional arrests directly relate to the
149original arrest. If the court intends to order the expunction of
150records pertaining to such additional arrests, such intent must
151be specified in the order. A criminal justice agency may not
152expunge any record pertaining to such additional arrests if the
153order to expunge does not articulate the intention of the court
154to expunge a record pertaining to more than one arrest. This
155section does not prevent the court from ordering the expunction
156of only a portion of a criminal history record pertaining to one
157arrest or one incident of alleged criminal activity.
158Notwithstanding any law to the contrary, a criminal justice
159agency may comply with laws, court orders, and official requests
160of other jurisdictions relating to expunction, correction, or
161confidential handling of criminal history records or information
162derived therefrom. This section does not confer any right to the
163expunction of any criminal history record, and any request for
164expunction of a criminal history record may be denied at the
165sole discretion of the court.
166     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any
167criminal history record of a minor or an adult which is ordered
168expunged by a court of competent jurisdiction pursuant to this
169section must be physically destroyed or obliterated by any
170criminal justice agency having custody of such record; except
171that any criminal history record in the custody of the
172department must be retained in all cases. A criminal history
173record ordered expunged that is retained by the department is
174confidential and exempt from the provisions of s. 119.07(1) and
175s. 24(a), Art. I of the State Constitution and not available to
176any person or entity except upon order of a court of competent
177jurisdiction. A criminal justice agency may retain a notation
178indicating compliance with an order to expunge.
179     (a)  The person who is the subject of a criminal history
180record that is expunged under this section or under other
181provisions of law, including former s. 893.14, former s. 901.33,
182and former s. 943.058, may lawfully deny or fail to acknowledge
183the arrests covered by the expunged record, except when the
184subject of the record:
185     1.  Is a candidate for employment with a criminal justice
186agency;
187     2.  Is a defendant in a criminal prosecution;
188     3.  Concurrently or subsequently petitions for relief under
189this section, or s. 943.059, or s. 943.0595;
190     4.  Is a candidate for admission to The Florida Bar;
191     5.  Is seeking to be employed or licensed by or to contract
192with the Department of Children and Family Services, the Agency
193for Health Care Administration, the Agency for Persons with
194Disabilities, or the Department of Juvenile Justice or to be
195employed or used by such contractor or licensee in a sensitive
196position having direct contact with children, the
197developmentally disabled, the aged, or the elderly as provided
198in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
199402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4),
200chapter 916, s. 985.644, chapter 400, or chapter 429;
201     6.  Is seeking to be employed or licensed by the Department
202of Education, any district school board, any university
203laboratory school, any charter school, any private or parochial
204school, or any local governmental entity that licenses child
205care facilities; or
206     7.  Is seeking authorization from a seaport listed in s.
207311.09 for employment within or access to one or more of such
208seaports pursuant to s. 311.12.
209     Section 4.  Paragraph (a) of subsection (4) of section
210943.059, Florida Statutes, is amended to read:
211     943.059  Court-ordered sealing of criminal history
212records.-The courts of this state shall continue to have
213jurisdiction over their own procedures, including the
214maintenance, sealing, and correction of judicial records
215containing criminal history information to the extent such
216procedures are not inconsistent with the conditions,
217responsibilities, and duties established by this section. Any
218court of competent jurisdiction may order a criminal justice
219agency to seal the criminal history record of a minor or an
220adult who complies with the requirements of this section. The
221court shall not order a criminal justice agency to seal a
222criminal history record until the person seeking to seal a
223criminal history record has applied for and received a
224certificate of eligibility for sealing pursuant to subsection
225(2). A criminal history record that relates to a violation of s.
226393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
227800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
228839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
229916.1075, a violation enumerated in s. 907.041, or any violation
230specified as a predicate offense for registration as a sexual
231predator pursuant to s. 775.21, without regard to whether that
232offense alone is sufficient to require such registration, or for
233registration as a sexual offender pursuant to s. 943.0435, may
234not be sealed, without regard to whether adjudication was
235withheld, if the defendant was found guilty of or pled guilty or
236nolo contendere to the offense, or if the defendant, as a minor,
237was found to have committed or pled guilty or nolo contendere to
238committing the offense as a delinquent act. The court may only
239order sealing of a criminal history record pertaining to one
240arrest or one incident of alleged criminal activity, except as
241provided in this section. The court may, at its sole discretion,
242order the sealing of a criminal history record pertaining to
243more than one arrest if the additional arrests directly relate
244to the original arrest. If the court intends to order the
245sealing of records pertaining to such additional arrests, such
246intent must be specified in the order. A criminal justice agency
247may not seal any record pertaining to such additional arrests if
248the order to seal does not articulate the intention of the court
249to seal records pertaining to more than one arrest. This section
250does not prevent the court from ordering the sealing of only a
251portion of a criminal history record pertaining to one arrest or
252one incident of alleged criminal activity. Notwithstanding any
253law to the contrary, a criminal justice agency may comply with
254laws, court orders, and official requests of other jurisdictions
255relating to sealing, correction, or confidential handling of
256criminal history records or information derived therefrom. This
257section does not confer any right to the sealing of any criminal
258history record, and any request for sealing a criminal history
259record may be denied at the sole discretion of the court.
260     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.-A criminal
261history record of a minor or an adult which is ordered sealed by
262a court of competent jurisdiction pursuant to this section is
263confidential and exempt from the provisions of s. 119.07(1) and
264s. 24(a), Art. I of the State Constitution and is available only
265to the person who is the subject of the record, to the subject's
266attorney, to criminal justice agencies for their respective
267criminal justice purposes, which include conducting a criminal
268history background check for approval of firearms purchases or
269transfers as authorized by state or federal law, to judges in
270the state courts system for the purpose of assisting them in
271their case-related decisionmaking responsibilities, as set forth
272in s. 943.053(5), or to those entities set forth in
273subparagraphs (a)1., 4., 5., 6., and 8. for their respective
274licensing, access authorization, and employment purposes.
275     (a)  The subject of a criminal history record sealed under
276this section or under other provisions of law, including former
277s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
278deny or fail to acknowledge the arrests covered by the sealed
279record, except when the subject of the record:
280     1.  Is a candidate for employment with a criminal justice
281agency;
282     2.  Is a defendant in a criminal prosecution;
283     3.  Concurrently or subsequently petitions for relief under
284this section, or s. 943.0585, or s. 943.0595;
285     4.  Is a candidate for admission to The Florida Bar;
286     5.  Is seeking to be employed or licensed by or to contract
287with the Department of Children and Family Services, the Agency
288for Health Care Administration, the Agency for Persons with
289Disabilities, or the Department of Juvenile Justice or to be
290employed or used by such contractor or licensee in a sensitive
291position having direct contact with children, the
292developmentally disabled, the aged, or the elderly as provided
293in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
294402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
295415.103, chapter 916, s. 985.644, 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 check under state or federal law;
304or
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.
308     Section 5.  Paragraph (b) of subsection (6) of section
309948.08, Florida Statutes, is amended to read:
310     948.08  Pretrial intervention program.-
311     (6)
312     (b)  While enrolled in a pretrial intervention program
313authorized by this subsection, the participant is subject to a
314coordinated strategy developed by a drug court team under s.
315397.334(4). The coordinated strategy may include a protocol of
316sanctions that may be imposed upon the participant for
317noncompliance with program rules. The protocol of sanctions may
318include, but is not limited to, placement in a substance abuse
319treatment program offered by a licensed service provider as
320defined in s. 397.311 or in a jail-based treatment program or
321serving a period of incarceration within the time limits
322established for contempt of court. The coordinated strategy must
323be provided in writing to the participant before the participant
324agrees to enter into a pretrial treatment-based drug court
325program or other pretrial intervention program. Any person whose
326charges are dismissed after successful completion of the
327treatment-based drug court program, if otherwise eligible, may
328have his or her arrest record and plea of nolo contendere to the
329dismissed charges expunged under s. 943.0585 or s. 943.0595.
330     Section 6.  Paragraph (b) of subsection (1) of section
331948.16, Florida Statutes, is amended to read:
332     948.16  Misdemeanor pretrial substance abuse education and
333treatment intervention program.-
334     (1)
335     (b)  While enrolled in a pretrial intervention program
336authorized by this section, the participant is subject to a
337coordinated strategy developed by a drug court team under s.
338397.334(4). The coordinated strategy may include a protocol of
339sanctions that may be imposed upon the participant for
340noncompliance with program rules. The protocol of sanctions may
341include, but is not limited to, placement in a substance abuse
342treatment program offered by a licensed service provider as
343defined in s. 397.311 or in a jail-based treatment program or
344serving a period of incarceration within the time limits
345established for contempt of court. The coordinated strategy must
346be provided in writing to the participant before the participant
347agrees to enter into a pretrial treatment-based drug court
348program or other pretrial intervention program. Any person whose
349charges are dismissed after successful completion of the
350treatment-based drug court program, if otherwise eligible, may
351have his or her arrest record and plea of nolo contendere to the
352dismissed charges expunged under s. 943.0585 or s. 943.0595.
353     Section 7.  Paragraph (e) of subsection (1) of section
354961.06, Florida Statutes, is amended to read:
355     961.06  Compensation for wrongful incarceration.-
356     (1)  Except as otherwise provided in this act and subject
357to the limitations and procedures prescribed in this section, a
358person who is found to be entitled to compensation under the
359provisions of this act is entitled to:
360     (e)  Notwithstanding any provision to the contrary in s.
361943.0585 or s. 943.0595, immediate administrative expunction of
362the person's criminal record resulting from his or her wrongful
363arrest, wrongful conviction, and wrongful incarceration. The
364Department of Legal Affairs and the Department of Law
365Enforcement shall, upon a determination that a claimant is
366entitled to compensation, immediately take all action necessary
367to administratively expunge the claimant's criminal record
368arising from his or her wrongful arrest, wrongful conviction,
369and wrongful incarceration. All fees for this process shall be
370waived.
371
372The total compensation awarded under paragraphs (a), (c), and
373(d) may not exceed $2 million. No further award for attorney's
374fees, lobbying fees, costs, or other similar expenses shall be
375made by the state.
376     Section 8.  Subsection (2) of section 985.345, Florida
377Statutes, is amended to read:
378     985.345  Delinquency pretrial intervention program.-
379     (2)  While enrolled in a delinquency pretrial intervention
380program authorized by this section, a child is subject to a
381coordinated strategy developed by a drug court team under s.
382397.334(4). The coordinated strategy may include a protocol of
383sanctions that may be imposed upon the child for noncompliance
384with program rules. The protocol of sanctions may include, but
385is not limited to, placement in a substance abuse treatment
386program offered by a licensed service provider as defined in s.
387397.311 or serving a period of secure detention under this
388chapter. The coordinated strategy must be provided in writing to
389the child before the child agrees to enter the pretrial
390treatment-based drug court program or other pretrial
391intervention program. Any child whose charges are dismissed
392after successful completion of the treatment-based drug court
393program, if otherwise eligible, may have his or her arrest
394record and plea of nolo contendere to the dismissed charges
395expunged under s. 943.0585 or s. 943.0595.
396     Section 9.  This act shall take effect July 1, 2010.


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