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. |