| 1 | A bill to be entitled |
| 2 | An act relating to sealing and expunging criminal history |
| 3 | records; amending s. 943.0585, F.S.; authorizing a court |
| 4 | to expunge a criminal history record of a person who had a |
| 5 | prior criminal history record sealed or expunged in |
| 6 | certain circumstances; amending s. 943.059, F.S.; |
| 7 | authorizing a court to seal a criminal history record of a |
| 8 | person who had a prior criminal history record sealed or |
| 9 | expunged in certain circumstances; providing an effective |
| 10 | date. |
| 11 |
|
| 12 | Be It Enacted by the Legislature of the State of Florida: |
| 13 |
|
| 14 | Section 1. Section 943.0585, Florida Statutes, is amended |
| 15 | to read: |
| 16 | 943.0585 Court-ordered expunction of criminal history |
| 17 | records.-The courts of this state have jurisdiction over their |
| 18 | own procedures, including the maintenance, expunction, and |
| 19 | correction of judicial records containing criminal history |
| 20 | information to the extent such procedures are not inconsistent |
| 21 | with the conditions, responsibilities, and duties established by |
| 22 | this section. Any court of competent jurisdiction may order a |
| 23 | criminal justice agency to expunge the criminal history record |
| 24 | of a minor or an adult who complies with the requirements of |
| 25 | this section. The court shall not order a criminal justice |
| 26 | agency to expunge a criminal history record until the person |
| 27 | seeking to expunge a criminal history record has applied for and |
| 28 | received a certificate of eligibility for expunction pursuant to |
| 29 | subsection (2). A criminal history record that relates to a |
| 30 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
| 31 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
| 32 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
| 33 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
| 34 | any violation specified as a predicate offense for registration |
| 35 | as a sexual predator pursuant to s. 775.21, without regard to |
| 36 | whether that offense alone is sufficient to require such |
| 37 | registration, or for registration as a sexual offender pursuant |
| 38 | to s. 943.0435, may not be expunged, without regard to whether |
| 39 | adjudication was withheld, if the defendant was found guilty of |
| 40 | or pled guilty or nolo contendere to the offense, or if the |
| 41 | defendant, as a minor, was found to have committed, or pled |
| 42 | guilty or nolo contendere to committing, the offense as a |
| 43 | delinquent act. The court may only order expunction of a |
| 44 | criminal history record pertaining to one arrest or one incident |
| 45 | of alleged criminal activity, except as provided in this |
| 46 | section. The court may, at its sole discretion, order the |
| 47 | expunction of a criminal history record pertaining to more than |
| 48 | one arrest if the additional arrests directly relate to the |
| 49 | original arrest. If the court intends to order the expunction of |
| 50 | records pertaining to such additional arrests, such intent must |
| 51 | be specified in the order. A criminal justice agency may not |
| 52 | expunge any record pertaining to such additional arrests if the |
| 53 | order to expunge does not articulate the intention of the court |
| 54 | to expunge a record pertaining to more than one arrest. This |
| 55 | section does not prevent the court from ordering the expunction |
| 56 | of only a portion of a criminal history record pertaining to one |
| 57 | arrest or one incident of alleged criminal activity. |
| 58 | Notwithstanding any law to the contrary, a criminal justice |
| 59 | agency may comply with laws, court orders, and official requests |
| 60 | of other jurisdictions relating to expunction, correction, or |
| 61 | confidential handling of criminal history records or information |
| 62 | derived therefrom. This section does not confer any right to the |
| 63 | expunction of any criminal history record, and any request for |
| 64 | expunction of a criminal history record may be denied at the |
| 65 | sole discretion of the court. |
| 66 | (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each |
| 67 | petition to a court to expunge a criminal history record is |
| 68 | complete only when accompanied by: |
| 69 | (a) A valid certificate of eligibility for expunction |
| 70 | issued by the department pursuant to subsection (2). |
| 71 | (b) The petitioner's sworn statement attesting that the |
| 72 | petitioner: |
| 73 | 1. Has never, prior to the date on which the petition is |
| 74 | filed, been adjudicated guilty of a criminal offense or |
| 75 | comparable ordinance violation, or been adjudicated delinquent |
| 76 | for committing any felony or a misdemeanor specified in s. |
| 77 | 943.051(3)(b). |
| 78 | 2. Has not been adjudicated guilty of, or adjudicated |
| 79 | delinquent for committing, any of the acts stemming from the |
| 80 | arrest or alleged criminal activity to which the petition |
| 81 | pertains. |
| 82 | 3. Has never secured a prior sealing or expunction, except |
| 83 | as provided in subsection (5) and s. 943.059(5), of a criminal |
| 84 | history record under this section, former s. 893.14, former s. |
| 85 | 901.33, or former s. 943.058, or from any jurisdiction outside |
| 86 | the state, unless expunction is sought of a criminal history |
| 87 | record previously sealed for 10 years pursuant to paragraph |
| 88 | (2)(h) and the record is otherwise eligible for expunction. |
| 89 | 4. Is eligible for such an expunction to the best of his |
| 90 | or her knowledge or belief and does not have any other petition |
| 91 | to expunge or any petition to seal pending before any court. |
| 92 |
|
| 93 | Any person who knowingly provides false information on such |
| 94 | sworn statement to the court commits a felony of the third |
| 95 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 96 | 775.084. |
| 97 | (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to |
| 98 | petitioning the court to expunge a criminal history record, a |
| 99 | person seeking to expunge a criminal history record shall apply |
| 100 | to the department for a certificate of eligibility for |
| 101 | expunction. The department shall, by rule adopted pursuant to |
| 102 | chapter 120, establish procedures pertaining to the application |
| 103 | for and issuance of certificates of eligibility for expunction. |
| 104 | A certificate of eligibility for expunction is valid for 12 |
| 105 | months after the date stamped on the certificate when issued by |
| 106 | the department. After that time, the petitioner must reapply to |
| 107 | the department for a new certificate of eligibility. Eligibility |
| 108 | for a renewed certification of eligibility must be based on the |
| 109 | status of the applicant and the law in effect at the time of the |
| 110 | renewal application. The department shall issue a certificate of |
| 111 | eligibility for expunction to a person who is the subject of a |
| 112 | criminal history record if that person: |
| 113 | (a) Has obtained, and submitted to the department, a |
| 114 | written, certified statement from the appropriate clerk of court |
| 115 | state attorney or statewide prosecutor which indicates: |
| 116 | 1. That an indictment, information, or other charging |
| 117 | document was not filed or issued in the case. |
| 118 | 2. That an indictment, information, or other charging |
| 119 | document, if filed or issued in the case, was dismissed or nolle |
| 120 | prosequi by the state attorney or statewide prosecutor, or was |
| 121 | dismissed by a court of competent jurisdiction, and that none of |
| 122 | the charges related to the arrest or alleged criminal activity |
| 123 | to which the petition to expunge pertains resulted in a trial, |
| 124 | without regard to whether the outcome of the trial was other |
| 125 | than an adjudication of guilt. |
| 126 | 3. That the criminal history record does not relate to a |
| 127 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
| 128 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
| 129 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
| 130 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
| 131 | any violation specified as a predicate offense for registration |
| 132 | as a sexual predator pursuant to s. 775.21, without regard to |
| 133 | whether that offense alone is sufficient to require such |
| 134 | registration, or for registration as a sexual offender pursuant |
| 135 | to s. 943.0435, where the defendant was found guilty of, or pled |
| 136 | guilty or nolo contendere to any such offense, or that the |
| 137 | defendant, as a minor, was found to have committed, or pled |
| 138 | guilty or nolo contendere to committing, such an offense as a |
| 139 | delinquent act, without regard to whether adjudication was |
| 140 | withheld. |
| 141 | (b) Remits a $75 processing fee to the department for |
| 142 | placement in the Department of Law Enforcement Operating Trust |
| 143 | Fund, unless such fee is waived by the executive director. |
| 144 | (c) Has submitted to the department a certified copy of |
| 145 | the disposition of the charge to which the petition to expunge |
| 146 | pertains. |
| 147 | (d) Has never, prior to the date on which the application |
| 148 | for a certificate of eligibility is filed, been adjudicated |
| 149 | guilty of a criminal offense or comparable ordinance violation, |
| 150 | or been adjudicated delinquent for committing any felony or a |
| 151 | misdemeanor specified in s. 943.051(3)(b). |
| 152 | (e) Has not been adjudicated guilty of, or adjudicated |
| 153 | delinquent for committing, any of the acts stemming from the |
| 154 | arrest or alleged criminal activity to which the petition to |
| 155 | expunge pertains. |
| 156 | (f) Has never secured a prior sealing or expunction, |
| 157 | except as provided in subsection (5) and s. 943.059(5), of a |
| 158 | criminal history record under this section, former s. 893.14, |
| 159 | former s. 901.33, or former s. 943.058, unless expunction is |
| 160 | sought of a criminal history record previously sealed for 10 |
| 161 | years pursuant to paragraph (h) and the record is otherwise |
| 162 | eligible for expunction. |
| 163 | (g) Is no longer under court supervision applicable to the |
| 164 | disposition of the arrest or alleged criminal activity to which |
| 165 | the petition to expunge pertains. |
| 166 | (h) Has previously obtained a court order sealing the |
| 167 | record under this section, former s. 893.14, former s. 901.33, |
| 168 | or former s. 943.058 for a minimum of 10 years because |
| 169 | adjudication was withheld or because all charges related to the |
| 170 | arrest or alleged criminal activity to which the petition to |
| 171 | expunge pertains were not dismissed prior to trial, without |
| 172 | regard to whether the outcome of the trial was other than an |
| 173 | adjudication of guilt. The requirement for the record to have |
| 174 | previously been sealed for a minimum of 10 years does not apply |
| 175 | when a plea was not entered or all charges related to the arrest |
| 176 | or alleged criminal activity to which the petition to expunge |
| 177 | pertains were dismissed prior to trial. |
| 178 | (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.- |
| 179 | (a) In judicial proceedings under this section, a copy of |
| 180 | the completed petition to expunge shall be served upon the |
| 181 | appropriate state attorney or the statewide prosecutor and upon |
| 182 | the arresting agency; however, it is not necessary to make any |
| 183 | agency other than the state a party. The appropriate state |
| 184 | attorney or the statewide prosecutor and the arresting agency |
| 185 | may respond to the court regarding the completed petition to |
| 186 | expunge. |
| 187 | (b) If relief is granted by the court, the clerk of the |
| 188 | court shall certify copies of the order to the appropriate state |
| 189 | attorney or the statewide prosecutor and the arresting agency. |
| 190 | The arresting agency is responsible for forwarding the order to |
| 191 | any other agency to which the arresting agency disseminated the |
| 192 | criminal history record information to which the order pertains. |
| 193 | The department shall forward the order to expunge to the Federal |
| 194 | Bureau of Investigation. The clerk of the court shall certify a |
| 195 | copy of the order to any other agency which the records of the |
| 196 | court reflect has received the criminal history record from the |
| 197 | court. |
| 198 | (c) For an order to expunge entered by a court prior to |
| 199 | July 1, 1992, the department shall notify the appropriate state |
| 200 | attorney or statewide prosecutor of an order to expunge which is |
| 201 | contrary to law because the person who is the subject of the |
| 202 | record has previously been convicted of a crime or comparable |
| 203 | ordinance violation or has had a prior criminal history record |
| 204 | sealed or expunged, except as provided in subsection (5) and s. |
| 205 | 943.059(5). Upon receipt of such notice, the appropriate state |
| 206 | attorney or statewide prosecutor shall take action, within 60 |
| 207 | days, to correct the record and petition the court to void the |
| 208 | order to expunge. The department shall seal the record until |
| 209 | such time as the order is voided by the court. |
| 210 | (d) On or after July 1, 1992, the department or any other |
| 211 | criminal justice agency is not required to act on an order to |
| 212 | expunge entered by a court when such order does not comply with |
| 213 | the requirements of this section. Upon receipt of such an order, |
| 214 | the department must notify the issuing court, the appropriate |
| 215 | state attorney or statewide prosecutor, the petitioner or the |
| 216 | petitioner's attorney, and the arresting agency of the reason |
| 217 | for noncompliance. The appropriate state attorney or statewide |
| 218 | prosecutor shall take action within 60 days to correct the |
| 219 | record and petition the court to void the order. No cause of |
| 220 | action, including contempt of court, shall arise against any |
| 221 | criminal justice agency for failure to comply with an order to |
| 222 | expunge when the petitioner for such order failed to obtain the |
| 223 | certificate of eligibility as required by this section or such |
| 224 | order does not otherwise comply with the requirements of this |
| 225 | section. |
| 226 | (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any |
| 227 | criminal history record of a minor or an adult which is ordered |
| 228 | expunged by a court of competent jurisdiction pursuant to this |
| 229 | section must be physically destroyed or obliterated by any |
| 230 | criminal justice agency having custody of such record; except |
| 231 | that any criminal history record in the custody of the |
| 232 | department must be retained in all cases. A criminal history |
| 233 | record ordered expunged that is retained by the department is |
| 234 | confidential and exempt from the provisions of s. 119.07(1) and |
| 235 | s. 24(a), Art. I of the State Constitution and not available to |
| 236 | any person or entity except upon order of a court of competent |
| 237 | jurisdiction. A criminal justice agency may retain a notation |
| 238 | indicating compliance with an order to expunge. |
| 239 | (a) The person who is the subject of a criminal history |
| 240 | record that is expunged under this section or under other |
| 241 | provisions of law, including former s. 893.14, former s. 901.33, |
| 242 | and former s. 943.058, may lawfully deny or fail to acknowledge |
| 243 | the arrests covered by the expunged record, except when the |
| 244 | subject of the record: |
| 245 | 1. Is a candidate for employment with a criminal justice |
| 246 | agency; |
| 247 | 2. Is a defendant in a criminal prosecution; |
| 248 | 3. Concurrently or subsequently petitions for relief under |
| 249 | this section or s. 943.059; |
| 250 | 4. Is a candidate for admission to The Florida Bar; |
| 251 | 5. Is seeking to be employed or licensed by or to contract |
| 252 | with the Department of Children and Family Services, the Agency |
| 253 | for Health Care Administration, the Agency for Persons with |
| 254 | Disabilities, or the Department of Juvenile Justice or to be |
| 255 | employed or used by such contractor or licensee in a sensitive |
| 256 | position having direct contact with children, the |
| 257 | developmentally disabled, the aged, or the elderly as provided |
| 258 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
| 259 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), |
| 260 | chapter 916, s. 985.644, chapter 400, or chapter 429; |
| 261 | 6. Is seeking to be employed or licensed by the Department |
| 262 | of Education, any district school board, any university |
| 263 | laboratory school, any charter school, any private or parochial |
| 264 | school, or any local governmental entity that licenses child |
| 265 | care facilities; or |
| 266 | 7. Is seeking authorization from a seaport listed in s. |
| 267 | 311.09 for employment within or access to one or more of such |
| 268 | seaports pursuant to s. 311.12. |
| 269 | (b) Subject to the exceptions in paragraph (a), a person |
| 270 | who has been granted an expunction under this section, former s. |
| 271 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
| 272 | under any provision of law of this state to commit perjury or to |
| 273 | be otherwise liable for giving a false statement by reason of |
| 274 | such person's failure to recite or acknowledge an expunged |
| 275 | criminal history record. |
| 276 | (c) Information relating to the existence of an expunged |
| 277 | criminal history record which is provided in accordance with |
| 278 | paragraph (a) is confidential and exempt from the provisions of |
| 279 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
| 280 | except that the department shall disclose the existence of a |
| 281 | criminal history record ordered expunged to the entities set |
| 282 | forth in subparagraphs (a)1., 4., 5., 6., and 7. for their |
| 283 | respective licensing, access authorization, and employment |
| 284 | purposes, and to criminal justice agencies for their respective |
| 285 | criminal justice purposes. It is unlawful for any employee of an |
| 286 | entity set forth in subparagraph (a)1., subparagraph (a)4., |
| 287 | subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to |
| 288 | disclose information relating to the existence of an expunged |
| 289 | criminal history record of a person seeking employment, access |
| 290 | authorization, or licensure with such entity or contractor, |
| 291 | except to the person to whom the criminal history record relates |
| 292 | or to persons having direct responsibility for employment, |
| 293 | access authorization, or licensure decisions. Any person who |
| 294 | violates this paragraph commits a misdemeanor of the first |
| 295 | degree, punishable as provided in s. 775.082 or s. 775.083. |
| 296 | (5) EXPUNCTION OF CRIMINAL HISTORY RECORD AFTER PRIOR |
| 297 | SEALING OR EXPUNCTION.- |
| 298 | (a) A court may expunge a person's criminal history record |
| 299 | after a prior criminal history record has been sealed or |
| 300 | expunged only if the person obtains a certificate from the |
| 301 | department to expunge the criminal history record. The |
| 302 | department shall issue the certificate for a second expunction |
| 303 | only if: |
| 304 | 1. The person has had only one prior expunction of his or |
| 305 | her criminal history record under this section or one prior |
| 306 | expunction following the sealing of the same arrest or alleged |
| 307 | criminal activity that was expunged; |
| 308 | 2. The person has not been arrested in this state during |
| 309 | the 10-year period prior to the date on which the application |
| 310 | for the certificate is filed; and |
| 311 | 3. The person has not previously sealed or expunged a |
| 312 | criminal history record that involved the same offense to which |
| 313 | the petition to expunge pertains. |
| 314 | (b) All other provisions and requirements of this section |
| 315 | apply to an application to expunge a second criminal history |
| 316 | record. |
| 317 | (6)(5) STATUTORY REFERENCES.-Any reference to any other |
| 318 | chapter, section, or subdivision of the Florida Statutes in this |
| 319 | section constitutes a general reference under the doctrine of |
| 320 | incorporation by reference. |
| 321 | Section 2. Section 943.059, Florida Statutes, is amended |
| 322 | to read: |
| 323 | 943.059 Court-ordered sealing of criminal history |
| 324 | records.-The courts of this state shall continue to have |
| 325 | jurisdiction over their own procedures, including the |
| 326 | maintenance, sealing, and correction of judicial records |
| 327 | containing criminal history information to the extent such |
| 328 | procedures are not inconsistent with the conditions, |
| 329 | responsibilities, and duties established by this section. Any |
| 330 | court of competent jurisdiction may order a criminal justice |
| 331 | agency to seal the criminal history record of a minor or an |
| 332 | adult who complies with the requirements of this section. The |
| 333 | court shall not order a criminal justice agency to seal a |
| 334 | criminal history record until the person seeking to seal a |
| 335 | criminal history record has applied for and received a |
| 336 | certificate of eligibility for sealing pursuant to subsection |
| 337 | (2). A criminal history record that relates to a violation of s. |
| 338 | 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. |
| 339 | 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter |
| 340 | 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. |
| 341 | 916.1075, a violation enumerated in s. 907.041, or any violation |
| 342 | specified as a predicate offense for registration as a sexual |
| 343 | predator pursuant to s. 775.21, without regard to whether that |
| 344 | offense alone is sufficient to require such registration, or for |
| 345 | registration as a sexual offender pursuant to s. 943.0435, may |
| 346 | not be sealed, without regard to whether adjudication was |
| 347 | withheld, if the defendant was found guilty of or pled guilty or |
| 348 | nolo contendere to the offense, or if the defendant, as a minor, |
| 349 | was found to have committed or pled guilty or nolo contendere to |
| 350 | committing the offense as a delinquent act. The court may only |
| 351 | order sealing of a criminal history record pertaining to one |
| 352 | arrest or one incident of alleged criminal activity, except as |
| 353 | provided in this section. The court may, at its sole discretion, |
| 354 | order the sealing of a criminal history record pertaining to |
| 355 | more than one arrest if the additional arrests directly relate |
| 356 | to the original arrest. If the court intends to order the |
| 357 | sealing of records pertaining to such additional arrests, such |
| 358 | intent must be specified in the order. A criminal justice agency |
| 359 | may not seal any record pertaining to such additional arrests if |
| 360 | the order to seal does not articulate the intention of the court |
| 361 | to seal records pertaining to more than one arrest. This section |
| 362 | does not prevent the court from ordering the sealing of only a |
| 363 | portion of a criminal history record pertaining to one arrest or |
| 364 | one incident of alleged criminal activity. Notwithstanding any |
| 365 | law to the contrary, a criminal justice agency may comply with |
| 366 | laws, court orders, and official requests of other jurisdictions |
| 367 | relating to sealing, correction, or confidential handling of |
| 368 | criminal history records or information derived therefrom. This |
| 369 | section does not confer any right to the sealing of any criminal |
| 370 | history record, and any request for sealing a criminal history |
| 371 | record may be denied at the sole discretion of the court. |
| 372 | (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.-Each |
| 373 | petition to a court to seal a criminal history record is |
| 374 | complete only when accompanied by: |
| 375 | (a) A valid certificate of eligibility for sealing issued |
| 376 | by the department pursuant to subsection (2). |
| 377 | (b) The petitioner's sworn statement attesting that the |
| 378 | petitioner: |
| 379 | 1. Has never, prior to the date on which the petition is |
| 380 | filed, been adjudicated guilty of a criminal offense or |
| 381 | comparable ordinance violation, or been adjudicated delinquent |
| 382 | for committing any felony or a misdemeanor specified in s. |
| 383 | 943.051(3)(b). |
| 384 | 2. Has not been adjudicated guilty of or adjudicated |
| 385 | delinquent for committing any of the acts stemming from the |
| 386 | arrest or alleged criminal activity to which the petition to |
| 387 | seal pertains. |
| 388 | 3. Has never secured a prior sealing or expunction, except |
| 389 | as provided in subsection (5), of a criminal history record |
| 390 | under this section, former s. 893.14, former s. 901.33, former |
| 391 | s. 943.058, or from any jurisdiction outside the state. |
| 392 | 4. Is eligible for such a sealing to the best of his or |
| 393 | her knowledge or belief and does not have any other petition to |
| 394 | seal or any petition to expunge pending before any court. |
| 395 |
|
| 396 | Any person who knowingly provides false information on such |
| 397 | sworn statement to the court commits a felony of the third |
| 398 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 399 | 775.084. |
| 400 | (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.-Prior to |
| 401 | petitioning the court to seal a criminal history record, a |
| 402 | person seeking to seal a criminal history record shall apply to |
| 403 | the department for a certificate of eligibility for sealing. The |
| 404 | department shall, by rule adopted pursuant to chapter 120, |
| 405 | establish procedures pertaining to the application for and |
| 406 | issuance of certificates of eligibility for sealing. A |
| 407 | certificate of eligibility for sealing is valid for 12 months |
| 408 | after the date stamped on the certificate when issued by the |
| 409 | department. After that time, the petitioner must reapply to the |
| 410 | department for a new certificate of eligibility. Eligibility for |
| 411 | a renewed certification of eligibility must be based on the |
| 412 | status of the applicant and the law in effect at the time of the |
| 413 | renewal application. The department shall issue a certificate of |
| 414 | eligibility for sealing to a person who is the subject of a |
| 415 | criminal history record provided that such person: |
| 416 | (a) Has submitted to the department a certified copy of |
| 417 | the disposition of the charge to which the petition to seal |
| 418 | pertains. |
| 419 | (b) Remits a $75 processing fee to the department for |
| 420 | placement in the Department of Law Enforcement Operating Trust |
| 421 | Fund, unless such fee is waived by the executive director. |
| 422 | (c) Has never, prior to the date on which the application |
| 423 | for a certificate of eligibility is filed, been adjudicated |
| 424 | guilty of a criminal offense or comparable ordinance violation, |
| 425 | or been adjudicated delinquent for committing any felony or a |
| 426 | misdemeanor specified in s. 943.051(3)(b). |
| 427 | (d) Has not been adjudicated guilty of or adjudicated |
| 428 | delinquent for committing any of the acts stemming from the |
| 429 | arrest or alleged criminal activity to which the petition to |
| 430 | seal pertains. |
| 431 | (e) Has never secured a prior sealing or expunction, |
| 432 | except as provided in subsection (5), of a criminal history |
| 433 | record under this section, former s. 893.14, former s. 901.33, |
| 434 | or former s. 943.058. |
| 435 | (f) Is no longer under court supervision applicable to the |
| 436 | disposition of the arrest or alleged criminal activity to which |
| 437 | the petition to seal pertains. |
| 438 | (3) PROCESSING OF A PETITION OR ORDER TO SEAL.- |
| 439 | (a) In judicial proceedings under this section, a copy of |
| 440 | the completed petition to seal shall be served upon the |
| 441 | appropriate state attorney or the statewide prosecutor and upon |
| 442 | the arresting agency; however, it is not necessary to make any |
| 443 | agency other than the state a party. The appropriate state |
| 444 | attorney or the statewide prosecutor and the arresting agency |
| 445 | may respond to the court regarding the completed petition to |
| 446 | seal. |
| 447 | (b) If relief is granted by the court, the clerk of the |
| 448 | court shall certify copies of the order to the appropriate state |
| 449 | attorney or the statewide prosecutor and to the arresting |
| 450 | agency. The arresting agency is responsible for forwarding the |
| 451 | order to any other agency to which the arresting agency |
| 452 | disseminated the criminal history record information to which |
| 453 | the order pertains. The department shall forward the order to |
| 454 | seal to the Federal Bureau of Investigation. The clerk of the |
| 455 | court shall certify a copy of the order to any other agency |
| 456 | which the records of the court reflect has received the criminal |
| 457 | history record from the court. |
| 458 | (c) For an order to seal entered by a court prior to July |
| 459 | 1, 1992, the department shall notify the appropriate state |
| 460 | attorney or statewide prosecutor of any order to seal which is |
| 461 | contrary to law because the person who is the subject of the |
| 462 | record has previously been convicted of a crime or comparable |
| 463 | ordinance violation or has had a prior criminal history record |
| 464 | sealed or expunged, except as provided in subsection (5). Upon |
| 465 | receipt of such notice, the appropriate state attorney or |
| 466 | statewide prosecutor shall take action, within 60 days, to |
| 467 | correct the record and petition the court to void the order to |
| 468 | seal. The department shall seal the record until such time as |
| 469 | the order is voided by the court. |
| 470 | (d) On or after July 1, 1992, the department or any other |
| 471 | criminal justice agency is not required to act on an order to |
| 472 | seal entered by a court when such order does not comply with the |
| 473 | requirements of this section. Upon receipt of such an order, the |
| 474 | department must notify the issuing court, the appropriate state |
| 475 | attorney or statewide prosecutor, the petitioner or the |
| 476 | petitioner's attorney, and the arresting agency of the reason |
| 477 | for noncompliance. The appropriate state attorney or statewide |
| 478 | prosecutor shall take action within 60 days to correct the |
| 479 | record and petition the court to void the order. No cause of |
| 480 | action, including contempt of court, shall arise against any |
| 481 | criminal justice agency for failure to comply with an order to |
| 482 | seal when the petitioner for such order failed to obtain the |
| 483 | certificate of eligibility as required by this section or when |
| 484 | such order does not comply with the requirements of this |
| 485 | section. |
| 486 | (e) An order sealing a criminal history record pursuant to |
| 487 | this section does not require that such record be surrendered to |
| 488 | the court, and such record shall continue to be maintained by |
| 489 | the department and other criminal justice agencies. |
| 490 | (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.-A criminal |
| 491 | history record of a minor or an adult which is ordered sealed by |
| 492 | a court of competent jurisdiction pursuant to this section is |
| 493 | confidential and exempt from the provisions of s. 119.07(1) and |
| 494 | s. 24(a), Art. I of the State Constitution and is available only |
| 495 | to the person who is the subject of the record, to the subject's |
| 496 | attorney, to criminal justice agencies for their respective |
| 497 | criminal justice purposes, which include conducting a criminal |
| 498 | history background check for approval of firearms purchases or |
| 499 | transfers as authorized by state or federal law, to judges in |
| 500 | the state courts system for the purpose of assisting them in |
| 501 | their case-related decisionmaking responsibilities, as set forth |
| 502 | in s. 943.053(5), or to those entities set forth in |
| 503 | subparagraphs (a)1., 4., 5., 6., and 8. for their respective |
| 504 | licensing, access authorization, and employment purposes. |
| 505 | (a) The subject of a criminal history record sealed under |
| 506 | this section or under other provisions of law, including former |
| 507 | s. 893.14, former s. 901.33, and former s. 943.058, may lawfully |
| 508 | deny or fail to acknowledge the arrests covered by the sealed |
| 509 | record, except when the subject of the record: |
| 510 | 1. Is a candidate for employment with a criminal justice |
| 511 | agency; |
| 512 | 2. Is a defendant in a criminal prosecution; |
| 513 | 3. Concurrently or subsequently petitions for relief under |
| 514 | this section or s. 943.0585; |
| 515 | 4. Is a candidate for admission to The Florida Bar; |
| 516 | 5. Is seeking to be employed or licensed by or to contract |
| 517 | with the Department of Children and Family Services, the Agency |
| 518 | for Health Care Administration, the Agency for Persons with |
| 519 | Disabilities, or the Department of Juvenile Justice or to be |
| 520 | employed or used by such contractor or licensee in a sensitive |
| 521 | position having direct contact with children, the |
| 522 | developmentally disabled, the aged, or the elderly as provided |
| 523 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
| 524 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. |
| 525 | 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429; |
| 526 | 6. Is seeking to be employed or licensed by the Department |
| 527 | of Education, any district school board, any university |
| 528 | laboratory school, any charter school, any private or parochial |
| 529 | school, or any local governmental entity that licenses child |
| 530 | care facilities; |
| 531 | 7. Is attempting to purchase a firearm from a licensed |
| 532 | importer, licensed manufacturer, or licensed dealer and is |
| 533 | subject to a criminal history check under state or federal law; |
| 534 | or |
| 535 | 8. Is seeking authorization from a Florida seaport |
| 536 | identified in s. 311.09 for employment within or access to one |
| 537 | or more of such seaports pursuant to s. 311.12. |
| 538 | (b) Subject to the exceptions in paragraph (a), a person |
| 539 | who has been granted a sealing under this section, former s. |
| 540 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
| 541 | under any provision of law of this state to commit perjury or to |
| 542 | be otherwise liable for giving a false statement by reason of |
| 543 | such person's failure to recite or acknowledge a sealed criminal |
| 544 | history record. |
| 545 | (c) Information relating to the existence of a sealed |
| 546 | criminal record provided in accordance with the provisions of |
| 547 | paragraph (a) is confidential and exempt from the provisions of |
| 548 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
| 549 | except that the department shall disclose the sealed criminal |
| 550 | history record to the entities set forth in subparagraphs (a)1., |
| 551 | 4., 5., 6., and 8. for their respective licensing, access |
| 552 | authorization, and employment purposes. It is unlawful for any |
| 553 | employee of an entity set forth in subparagraph (a)1., |
| 554 | subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or |
| 555 | subparagraph (a)8. to disclose information relating to the |
| 556 | existence of a sealed criminal history record of a person |
| 557 | seeking employment, access authorization, or licensure with such |
| 558 | entity or contractor, except to the person to whom the criminal |
| 559 | history record relates or to persons having direct |
| 560 | responsibility for employment, access authorization, or |
| 561 | licensure decisions. Any person who violates the provisions of |
| 562 | this paragraph commits a misdemeanor of the first degree, |
| 563 | punishable as provided in s. 775.082 or s. 775.083. |
| 564 | (5) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING |
| 565 | OR EXPUNCTION.- |
| 566 | (a) A court may seal a person's criminal history record |
| 567 | after a prior criminal history record has been sealed or |
| 568 | expunged only if the person obtains a certificate from the |
| 569 | department to seal the criminal history record. The department |
| 570 | shall issue the certificate for a second sealing only if: |
| 571 | 1. The person has had only one prior expunction or sealing |
| 572 | of his or her criminal history record under s. 943.0585 or this |
| 573 | section or one prior expunction following the sealing of the |
| 574 | same arrest or alleged criminal activity that was expunged; |
| 575 | 2. The person has not been arrested in this state during |
| 576 | the 5-year period prior to the date on which the application for |
| 577 | the certificate is filed; and |
| 578 | 3. The person has not previously sealed or expunged a |
| 579 | criminal history record that involved the same offense to which |
| 580 | the petition to seal pertains. |
| 581 | (b) All other provisions and requirements of this section |
| 582 | apply to an application to seal a second criminal history |
| 583 | record. |
| 584 | (6)(5) STATUTORY REFERENCES.-Any reference to any other |
| 585 | chapter, section, or subdivision of the Florida Statutes in this |
| 586 | section constitutes a general reference under the doctrine of |
| 587 | incorporation by reference. |
| 588 | Section 3. This act shall take effect July 1, 2010. |