Florida Senate - 2011                                     SB 134
       
       
       
       By Senator Joyner
       
       
       
       
       18-00010-11                                            2011134__
    1                        A bill to be entitled                      
    2         An act relating to sealing criminal history records;
    3         providing a short title; amending s. 943.059, F.S.;
    4         authorizing a court to seal a criminal history record
    5         of a person who had a prior criminal history record
    6         sealed or expunged under certain circumstances;
    7         providing an effective date.
    8  
    9  Be It Enacted by the Legislature of the State of Florida:
   10  
   11         Section 1. This act may be cited as the “Jim King Keep
   12  Florida Working Act.”
   13         Section 2. Section 943.059, Florida Statutes, is amended to
   14  read:
   15         943.059 Court-ordered sealing of criminal history records.
   16  The courts of this state shall continue to have jurisdiction
   17  over their own procedures, including the maintenance, sealing,
   18  and correction of judicial records containing criminal history
   19  information to the extent such procedures are not inconsistent
   20  with the conditions, responsibilities, and duties established by
   21  this section. Any court of competent jurisdiction may order a
   22  criminal justice agency to seal the criminal history record of a
   23  minor or an adult who complies with the requirements of this
   24  section. The court shall not order a criminal justice agency to
   25  seal a criminal history record until the person seeking to seal
   26  a criminal history record has applied for and received a
   27  certificate of eligibility for sealing pursuant to subsection
   28  (2). A criminal history record that relates to a violation of s.
   29  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
   30  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
   31  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
   32  916.1075, a violation enumerated in s. 907.041, or any violation
   33  specified as a predicate offense for registration as a sexual
   34  predator pursuant to s. 775.21, without regard to whether that
   35  offense alone is sufficient to require such registration, or for
   36  registration as a sexual offender pursuant to s. 943.0435, may
   37  not be sealed, without regard to whether adjudication was
   38  withheld, if the defendant was found guilty of or pled guilty or
   39  nolo contendere to the offense, or if the defendant, as a minor,
   40  was found to have committed or pled guilty or nolo contendere to
   41  committing the offense as a delinquent act. The court may only
   42  order sealing of a criminal history record pertaining to one
   43  arrest or one incident of alleged criminal activity, except as
   44  provided in this section. The court may, at its sole discretion,
   45  order the sealing of a criminal history record pertaining to
   46  more than one arrest if the additional arrests directly relate
   47  to the original arrest. If the court intends to order the
   48  sealing of records pertaining to such additional arrests, such
   49  intent must be specified in the order. A criminal justice agency
   50  may not seal any record pertaining to such additional arrests if
   51  the order to seal does not articulate the intention of the court
   52  to seal records pertaining to more than one arrest. This section
   53  does not prevent the court from ordering the sealing of only a
   54  portion of a criminal history record pertaining to one arrest or
   55  one incident of alleged criminal activity. Notwithstanding any
   56  law to the contrary, a criminal justice agency may comply with
   57  laws, court orders, and official requests of other jurisdictions
   58  relating to sealing, correction, or confidential handling of
   59  criminal history records or information derived therefrom. This
   60  section does not confer any right to the sealing of any criminal
   61  history record, and any request for sealing a criminal history
   62  record may be denied at the sole discretion of the court.
   63         (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
   64  petition to a court to seal a criminal history record is
   65  complete only when accompanied by:
   66         (a) A valid certificate of eligibility for sealing issued
   67  by the department pursuant to subsection (2).
   68         (b) The petitioner’s sworn statement attesting that the
   69  petitioner:
   70         1. Has never, prior to the date on which the petition is
   71  filed, been adjudicated guilty of a criminal offense or
   72  comparable ordinance violation, or been adjudicated delinquent
   73  for committing any felony or a misdemeanor specified in s.
   74  943.051(3)(b).
   75         2. Has not been adjudicated guilty of or adjudicated
   76  delinquent for committing any of the acts stemming from the
   77  arrest or alleged criminal activity to which the petition to
   78  seal pertains.
   79         3. Has never secured a prior sealing or expunction, except
   80  as provided in subsection (5), of a criminal history record
   81  under this section, former s. 893.14, former s. 901.33, former
   82  s. 943.058, or from any jurisdiction outside the state.
   83         4. Is eligible for such a sealing to the best of his or her
   84  knowledge or belief and does not have any other petition to seal
   85  or any petition to expunge pending before any court.
   86  
   87  Any person who knowingly provides false information on such
   88  sworn statement to the court commits a felony of the third
   89  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   90  775.084.
   91         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
   92  petitioning the court to seal a criminal history record, a
   93  person seeking to seal a criminal history record shall apply to
   94  the department for a certificate of eligibility for sealing. The
   95  department shall, by rule adopted pursuant to chapter 120,
   96  establish procedures pertaining to the application for and
   97  issuance of certificates of eligibility for sealing. A
   98  certificate of eligibility for sealing is valid for 12 months
   99  after the date stamped on the certificate when issued by the
  100  department. After that time, the petitioner must reapply to the
  101  department for a new certificate of eligibility. Eligibility for
  102  a renewed certification of eligibility must be based on the
  103  status of the applicant and the law in effect at the time of the
  104  renewal application. The department shall issue a certificate of
  105  eligibility for sealing to a person who is the subject of a
  106  criminal history record provided that such person:
  107         (a) Has submitted to the department a certified copy of the
  108  disposition of the charge to which the petition to seal
  109  pertains.
  110         (b) Remits a $75 processing fee to the department for
  111  placement in the Department of Law Enforcement Operating Trust
  112  Fund, unless such fee is waived by the executive director.
  113         (c) Has never, prior to the date on which the application
  114  for a certificate of eligibility is filed, been adjudicated
  115  guilty of a criminal offense or comparable ordinance violation,
  116  or been adjudicated delinquent for committing any felony or a
  117  misdemeanor specified in s. 943.051(3)(b).
  118         (d) Has not been adjudicated guilty of or adjudicated
  119  delinquent for committing any of the acts stemming from the
  120  arrest or alleged criminal activity to which the petition to
  121  seal pertains.
  122         (e) Has never secured a prior sealing or expunction, except
  123  as provided in subsection (5), of a criminal history record
  124  under this section, former s. 893.14, former s. 901.33, or
  125  former s. 943.058.
  126         (f) Is no longer under court supervision applicable to the
  127  disposition of the arrest or alleged criminal activity to which
  128  the petition to seal pertains.
  129         (3) PROCESSING OF A PETITION OR ORDER TO SEAL.—
  130         (a) In judicial proceedings under this section, a copy of
  131  the completed petition to seal shall be served upon the
  132  appropriate state attorney or the statewide prosecutor and upon
  133  the arresting agency; however, it is not necessary to make any
  134  agency other than the state a party. The appropriate state
  135  attorney or the statewide prosecutor and the arresting agency
  136  may respond to the court regarding the completed petition to
  137  seal.
  138         (b) If relief is granted by the court, the clerk of the
  139  court shall certify copies of the order to the appropriate state
  140  attorney or the statewide prosecutor and to the arresting
  141  agency. The arresting agency is responsible for forwarding the
  142  order to any other agency to which the arresting agency
  143  disseminated the criminal history record information to which
  144  the order pertains. The department shall forward the order to
  145  seal to the Federal Bureau of Investigation. The clerk of the
  146  court shall certify a copy of the order to any other agency
  147  which the records of the court reflect has received the criminal
  148  history record from the court.
  149         (c) For an order to seal entered by a court prior to July
  150  1, 1992, the department shall notify the appropriate state
  151  attorney or statewide prosecutor of any order to seal which is
  152  contrary to law because the person who is the subject of the
  153  record has previously been convicted of a crime or comparable
  154  ordinance violation or has had a prior criminal history record
  155  sealed or expunged, except as provided in subsection (5). Upon
  156  receipt of such notice, the appropriate state attorney or
  157  statewide prosecutor shall take action, within 60 days, to
  158  correct the record and petition the court to void the order to
  159  seal. The department shall seal the record until such time as
  160  the order is voided by the court.
  161         (d) On or after July 1, 1992, the department or any other
  162  criminal justice agency is not required to act on an order to
  163  seal entered by a court when such order does not comply with the
  164  requirements of this section. Upon receipt of such an order, the
  165  department must notify the issuing court, the appropriate state
  166  attorney or statewide prosecutor, the petitioner or the
  167  petitioner’s attorney, and the arresting agency of the reason
  168  for noncompliance. The appropriate state attorney or statewide
  169  prosecutor shall take action within 60 days to correct the
  170  record and petition the court to void the order. No cause of
  171  action, including contempt of court, shall arise against any
  172  criminal justice agency for failure to comply with an order to
  173  seal when the petitioner for such order failed to obtain the
  174  certificate of eligibility as required by this section or when
  175  such order does not comply with the requirements of this
  176  section.
  177         (e) An order sealing a criminal history record pursuant to
  178  this section does not require that such record be surrendered to
  179  the court, and such record shall continue to be maintained by
  180  the department and other criminal justice agencies.
  181         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  182  history record of a minor or an adult which is ordered sealed by
  183  a court of competent jurisdiction pursuant to this section is
  184  confidential and exempt from the provisions of s. 119.07(1) and
  185  s. 24(a), Art. I of the State Constitution and is available only
  186  to the person who is the subject of the record, to the subject’s
  187  attorney, to criminal justice agencies for their respective
  188  criminal justice purposes, which include conducting a criminal
  189  history background check for approval of firearms purchases or
  190  transfers as authorized by state or federal law, to judges in
  191  the state courts system for the purpose of assisting them in
  192  their case-related decisionmaking responsibilities, as set forth
  193  in s. 943.053(5), or to those entities set forth in
  194  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  195  licensing, access authorization, and employment purposes.
  196         (a) The subject of a criminal history record sealed under
  197  this section or under other provisions of law, including former
  198  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  199  deny or fail to acknowledge the arrests covered by the sealed
  200  record, except when the subject of the record:
  201         1. Is a candidate for employment with a criminal justice
  202  agency;
  203         2. Is a defendant in a criminal prosecution;
  204         3. Concurrently or subsequently petitions for relief under
  205  this section or s. 943.0585;
  206         4. Is a candidate for admission to The Florida Bar;
  207         5. Is seeking to be employed or licensed by or to contract
  208  with the Department of Children and Family Services, the Agency
  209  for Health Care Administration, the Agency for Persons with
  210  Disabilities, or the Department of Juvenile Justice or to be
  211  employed or used by such contractor or licensee in a sensitive
  212  position having direct contact with children, the
  213  developmentally disabled, the aged, or the elderly as provided
  214  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  215  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), s.
  216  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
  217         6. Is seeking to be employed or licensed by the Department
  218  of Education, any district school board, any university
  219  laboratory school, any charter school, any private or parochial
  220  school, or any local governmental entity that licenses child
  221  care facilities;
  222         7. Is attempting to purchase a firearm from a licensed
  223  importer, licensed manufacturer, or licensed dealer and is
  224  subject to a criminal history check under state or federal law;
  225  or
  226         8. Is seeking authorization from a Florida seaport
  227  identified in s. 311.09 for employment within or access to one
  228  or more of such seaports pursuant to s. 311.12.
  229         (b) Subject to the exceptions in paragraph (a), a person
  230  who has been granted a sealing under this section, former s.
  231  893.14, former s. 901.33, or former s. 943.058 may not be held
  232  under any provision of law of this state to commit perjury or to
  233  be otherwise liable for giving a false statement by reason of
  234  such person’s failure to recite or acknowledge a sealed criminal
  235  history record.
  236         (c) Information relating to the existence of a sealed
  237  criminal record provided in accordance with the provisions of
  238  paragraph (a) is confidential and exempt from the provisions of
  239  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  240  except that the department shall disclose the sealed criminal
  241  history record to the entities set forth in subparagraphs (a)1.,
  242  4., 5., 6., and 8. for their respective licensing, access
  243  authorization, and employment purposes. It is unlawful for any
  244  employee of an entity set forth in subparagraph (a)1.,
  245  subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
  246  subparagraph (a)8. to disclose information relating to the
  247  existence of a sealed criminal history record of a person
  248  seeking employment, access authorization, or licensure with such
  249  entity or contractor, except to the person to whom the criminal
  250  history record relates or to persons having direct
  251  responsibility for employment, access authorization, or
  252  licensure decisions. Any person who violates the provisions of
  253  this paragraph commits a misdemeanor of the first degree,
  254  punishable as provided in s. 775.082 or s. 775.083.
  255         (5) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
  256  OR EXPUNCTION.—
  257         (a) A court may seal a person’s criminal history record
  258  after a prior criminal history record has been sealed or
  259  expunged only if the person obtains a certificate from the
  260  department to seal the criminal history record. The department
  261  shall issue the certificate for a second sealing only if:
  262         1. The person has had only one prior expunction or sealing
  263  of his or her criminal history record under s. 943.0585 or this
  264  section or one prior expunction following the sealing of the
  265  same arrest or alleged criminal activity that was expunged;
  266         2. The person has not been arrested in this state during
  267  the 5-year period prior to the date on which the application for
  268  the certificate is filed; and
  269         3. The person has not previously sealed or expunged a
  270  criminal history record that involved the same offense to which
  271  the petition to seal pertains.
  272         (b) All other provisions and requirements of this section
  273  apply to an application to seal a second criminal history
  274  record.
  275         (6)(5) STATUTORY REFERENCES.—Any reference to any other
  276  chapter, section, or subdivision of the Florida Statutes in this
  277  section constitutes a general reference under the doctrine of
  278  incorporation by reference.
  279         Section 3. This act shall take effect July 1, 2011.