1 | A bill to be entitled |
2 | An act relating to criminal history records; providing a |
3 | short title; amending s. 943.0585, F.S.; authorizing a |
4 | chief judge in a circuit to use senior judges or county |
5 | court judges to hear expunction petitions; authorizing |
6 | expunction of a record containing more than one arrest; |
7 | deleting provisions relating to a limitation on expunging |
8 | only records with one arrest; providing duties for private |
9 | companies or individuals that disseminate public records; |
10 | revising requirements for a petition to expunge a criminal |
11 | history record; revising requirements for service of |
12 | petitions to expunge records; providing for automatic |
13 | qualification for expunction of records in certain |
14 | circumstances; providing requirements for expunction of |
15 | such records; providing for expunction orders; providing |
16 | for a procedure if the Department of Law Enforcement or |
17 | any other criminal justice agency believes an expunction |
18 | order did not comply with requirements; providing that an |
19 | order expunging a criminal history record under specified |
20 | provisions does not require that the record be surrendered |
21 | to the court; providing that such record shall continue to |
22 | be maintained by the department and other criminal justice |
23 | agencies; amending s. 943.0582, F.S.; conforming a cross- |
24 | reference; providing an effective date. |
25 |
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26 | Be It Enacted by the Legislature of the State of Florida: |
27 |
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28 | Section 1. This act may be cited as the "Jim King Keep |
29 | Florida Working Act." |
30 | Section 2. Section 943.0585, Florida Statutes, is amended |
31 | to read: |
32 | 943.0585 Court-ordered expunction of criminal history |
33 | records.-The courts of this state have jurisdiction over their |
34 | own procedures, including the maintenance, expunction, and |
35 | correction of judicial records containing criminal history |
36 | information to the extent such procedures are not inconsistent |
37 | with the conditions, responsibilities, and duties established by |
38 | this section. The chief judge in any circuit may authorize the |
39 | use of senior judges or county court judges to hear cases |
40 | involving petitions to expunge criminal history records. Any |
41 | court of competent jurisdiction may order a criminal justice |
42 | agency to expunge the criminal history record of a minor or an |
43 | adult who complies with the requirements of this section. The |
44 | court may shall not order a criminal justice agency to expunge a |
45 | criminal history record until the person seeking to expunge a |
46 | criminal history record has applied for and received a |
47 | certificate of eligibility for expunction pursuant to subsection |
48 | (2), unless the person qualifies for an automatic expunction |
49 | under subsection (4). A criminal history record that relates to |
50 | a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
51 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
52 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
53 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
54 | any violation specified as a predicate offense for registration |
55 | as a sexual predator pursuant to s. 775.21, without regard to |
56 | whether that offense alone is sufficient to require such |
57 | registration, or for registration as a sexual offender pursuant |
58 | to s. 943.0435, may not be expunged, without regard to whether |
59 | adjudication was withheld, if the defendant was found guilty of |
60 | or pled guilty or nolo contendere to the offense, or if the |
61 | defendant, as a minor, was found to have committed, or pled |
62 | guilty or nolo contendere to committing, the offense as a |
63 | delinquent act. The court may only order expunction of a |
64 | criminal history record pertaining to one or more arrests arrest |
65 | or incidents one incident of alleged criminal activity, except |
66 | as provided in this section. The court shall automatically |
67 | expunge, upon appropriate petition as provided in this section, |
68 | the criminal history record in which formal charges were either |
69 | not filed by the state or, if filed, were ultimately dismissed |
70 | by the state or a court of competent jurisdiction or resulted in |
71 | a finding of not guilty by the fact finder in a trial on the |
72 | merits of the charges The court may, at its sole discretion, |
73 | order the expunction of a criminal history record pertaining to |
74 | more than one arrest if the additional arrests directly relate |
75 | to the original arrest. If the court intends to order the |
76 | expunction of records pertaining to such additional arrests, |
77 | such intent must be specified in the order. A criminal justice |
78 | agency may not expunge any record pertaining to such additional |
79 | arrests if the order to expunge does not articulate the |
80 | intention of the court to expunge a record pertaining to more |
81 | than one arrest. This section does not prevent the court from |
82 | ordering the expunction of only a portion of a criminal history |
83 | record pertaining to one arrest or one incident of alleged |
84 | criminal activity. Notwithstanding any law to the contrary, a |
85 | criminal justice agency may comply with laws, court orders, and |
86 | official requests of other jurisdictions relating to expunction, |
87 | correction, or confidential handling of criminal history records |
88 | or information derived therefrom. This section does not confer |
89 | any right to the expunction of any criminal history record, with |
90 | the exception of the automatic expunging of criminal history |
91 | records upon appropriate petition, and any request for |
92 | expunction of a criminal history record may be denied at the |
93 | sole discretion of the court. Any private company or individual |
94 | that disseminates public records subject to this section is |
95 | under an affirmative duty to maintain accurate records and must |
96 | comply with all provisions of this section. |
97 | (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each |
98 | petition to a court to expunge a criminal history record is |
99 | complete only when accompanied by: |
100 | (a) A valid certificate of eligibility for expunction |
101 | issued by the department pursuant to subsection (2). |
102 | (b) The petitioner's sworn statement attesting that the |
103 | petitioner: |
104 | 1. Has never, prior to the date on which the petition is |
105 | filed, been adjudicated guilty of a criminal offense or |
106 | comparable ordinance violation, or been adjudicated delinquent |
107 | for committing any felony or a misdemeanor specified in s. |
108 | 943.051(3)(b). |
109 | 1.2. Has not been adjudicated guilty of, or adjudicated |
110 | delinquent for committing, any of the acts stemming from the |
111 | arrest or alleged criminal activity to which the petition |
112 | pertains. |
113 | 2.3. Has never secured a prior sealing or expunction of a |
114 | criminal history record under this section, former s. 893.14, |
115 | former s. 901.33, or former s. 943.058, or from any jurisdiction |
116 | outside the state, unless expunction is sought of a criminal |
117 | history record previously sealed for 10 years pursuant to |
118 | paragraph (2)(g)(h) or, if expunction is sought for a |
119 | misdemeanor, the petitioner has been free from arrest for a |
120 | period of 5 years or, if expunction is sought for a felony, the |
121 | petitioner has been free from arrest for a period of 10 years, |
122 | and the record is otherwise eligible for expunction. |
123 | 3.4. Is eligible for such an expunction to the best of his |
124 | or her knowledge or belief and does not have any other petition |
125 | to expunge or any petition to seal pending before any court. |
126 |
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127 | Any person who knowingly provides false information on such |
128 | sworn statement to the court commits a felony of the third |
129 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
130 | 775.084. |
131 | (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to |
132 | petitioning the court to expunge a criminal history record, a |
133 | person seeking to expunge a criminal history record shall apply |
134 | to the department for a certificate of eligibility for |
135 | expunction. The department shall, by rule adopted pursuant to |
136 | chapter 120, establish procedures pertaining to the application |
137 | for and issuance of certificates of eligibility for expunction. |
138 | A certificate of eligibility for expunction is valid for 12 |
139 | months after the date stamped on the certificate when issued by |
140 | the department. After that time, the petitioner must reapply to |
141 | the department for a new certificate of eligibility. Eligibility |
142 | for a renewed certification of eligibility must be based on the |
143 | status of the applicant and the law in effect at the time of the |
144 | renewal application. The department shall issue a certificate of |
145 | eligibility for expunction to a person who is the subject of a |
146 | criminal history record if that person: |
147 | (a) Has obtained, and submitted to the department, a |
148 | written, certified statement from the appropriate state attorney |
149 | or statewide prosecutor which indicates: |
150 | 1. That an indictment, information, or other charging |
151 | document was not filed or issued in the case. |
152 | 2. That an indictment, information, or other charging |
153 | document, if filed or issued in the case, was dismissed or nolle |
154 | prosequi by the state attorney or statewide prosecutor, or was |
155 | dismissed by a court of competent jurisdiction, and that none of |
156 | the charges related to the arrest or alleged criminal activity |
157 | to which the petition to expunge pertains resulted in a trial, |
158 | without regard to whether the outcome of the trial was other |
159 | than an adjudication of guilt. |
160 | 3. That the criminal history record does not relate to a |
161 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
162 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
163 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
164 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
165 | any violation specified as a predicate offense for registration |
166 | as a sexual predator pursuant to s. 775.21, without regard to |
167 | whether that offense alone is sufficient to require such |
168 | registration, or for registration as a sexual offender pursuant |
169 | to s. 943.0435, where the defendant was found guilty of, or pled |
170 | guilty or nolo contendere to any such offense, or that the |
171 | defendant, as a minor, was found to have committed, or pled |
172 | guilty or nolo contendere to committing, such an offense as a |
173 | delinquent act, without regard to whether adjudication was |
174 | withheld. |
175 | (b) Remits a $75 processing fee to the department for |
176 | placement in the Department of Law Enforcement Operating Trust |
177 | Fund, unless such fee is waived by the executive director. |
178 | (c) Has submitted to the department a certified copy of |
179 | the disposition of the charge to which the petition to expunge |
180 | pertains. |
181 | (d) Has never, prior to the date on which the application |
182 | for a certificate of eligibility is filed, been adjudicated |
183 | guilty of a criminal offense or comparable ordinance violation, |
184 | or been adjudicated delinquent for committing any felony or a |
185 | misdemeanor specified in s. 943.051(3)(b). |
186 | (d)(e) Has not been adjudicated guilty of, or adjudicated |
187 | delinquent for committing, any of the acts stemming from the |
188 | arrest or alleged criminal activity to which the petition to |
189 | expunge pertains. |
190 | (e)(f) Has never secured a prior sealing or expunction of |
191 | a criminal history record under this section, former s. 893.14, |
192 | former s. 901.33, or former s. 943.058, unless expunction is |
193 | sought of a criminal history record previously sealed for 2 10 |
194 | years pursuant to paragraph (g) or, if expunction is sought for |
195 | a misdemeanor, the petitioner has been free from arrest for a |
196 | period of 5 years or, if expunction is sought for a felony, the |
197 | petitioner has been free from arrest for a period of 10 years |
198 | (h) and the record is otherwise eligible for expunction. |
199 | (f)(g) Is no longer under court supervision applicable to |
200 | the disposition of the arrest or alleged criminal activity to |
201 | which the petition to expunge pertains. |
202 | (g)(h) Has previously obtained a court order sealing the |
203 | record under this section, former s. 893.14, former s. 901.33, |
204 | or former s. 943.058 for a minimum of 10 years because |
205 | adjudication was withheld or because all charges related to the |
206 | arrest or alleged criminal activity to which the petition to |
207 | expunge pertains were not dismissed prior to trial, without |
208 | regard to whether the outcome of the trial was other than an |
209 | adjudication of guilt. The requirement for the record to have |
210 | previously been sealed for a minimum of 10 years does not apply |
211 | when a plea was not entered or all charges related to the arrest |
212 | or alleged criminal activity to which the petition to expunge |
213 | pertains were dismissed prior to trial. |
214 | (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.- |
215 | (a) In judicial proceedings under this section, a copy of |
216 | the completed petition to expunge shall be served upon the |
217 | appropriate state attorney or the statewide prosecutor and upon |
218 | the arresting agency; however, it is not necessary to make any |
219 | agency other than the state a party. The appropriate state |
220 | attorney or the statewide prosecutor and the arresting agency |
221 | may respond to the court regarding the completed petition to |
222 | expunge. |
223 | (b) If relief is granted by the court, the clerk of the |
224 | court shall certify copies of the order to the appropriate state |
225 | attorney or the statewide prosecutor and the arresting agency. |
226 | The arresting agency is responsible for forwarding the order to |
227 | any other agency to which the arresting agency disseminated the |
228 | criminal history record information to which the order pertains. |
229 | The department shall forward the order to expunge to the Federal |
230 | Bureau of Investigation and the appropriate office of the state |
231 | attorney or the statewide prosecutor that prosecuted the case. |
232 | The clerk of the court shall certify a copy of the order to any |
233 | other agency which the records of the court reflect has received |
234 | the criminal history record from the court. |
235 | (c) For an order to expunge entered by a court prior to |
236 | July 1, 1992, the department shall notify the appropriate state |
237 | attorney or statewide prosecutor of an order to expunge which is |
238 | contrary to law because the person who is the subject of the |
239 | record has previously been convicted of a crime or comparable |
240 | ordinance violation or has had a prior criminal history record |
241 | sealed or expunged. Upon receipt of such notice, the appropriate |
242 | state attorney or statewide prosecutor shall take action, within |
243 | 60 days, to correct the record and petition the court to void |
244 | the order to expunge. The department shall seal the record until |
245 | such time as the order is voided by the court. |
246 | (d) On or after July 1, 1992, the department or any other |
247 | criminal justice agency is not required to act on an order to |
248 | expunge entered by a court when such order does not comply with |
249 | the requirements of this section. Upon receipt of such an order, |
250 | the department must notify the issuing court, the appropriate |
251 | state attorney or statewide prosecutor, the petitioner or the |
252 | petitioner's attorney, and the arresting agency of the reason |
253 | for noncompliance. The appropriate state attorney or statewide |
254 | prosecutor shall take action within 60 days to correct the |
255 | record and petition the court to void the order. With the |
256 | exception of automatic expunction brought by petition under |
257 | subsection (4), no cause of action, including contempt of court, |
258 | may shall arise against any criminal justice agency for failure |
259 | to comply with an order to expunge when the petitioner for such |
260 | order failed to obtain the certificate of eligibility as |
261 | required by this section or such order does not otherwise comply |
262 | with the requirements of this section. |
263 | (4) AUTOMATIC QUALIFICATION FOR EXPUNCTION.- |
264 | Notwithstanding any provisions of this section or any law |
265 | dealing generally with the preservation and destruction of |
266 | public records, a criminal history record relating to a person |
267 | who has not been found guilty of, or not pled guilty or nolo |
268 | contendere to, an offense automatically qualifies for |
269 | expunction. If the person was adjudicated guilty of or |
270 | adjudicated delinquent for committing any of the acts stemming |
271 | from the arrest or alleged criminal activity or delinquent act, |
272 | the record does not qualify for automatic expunction. |
273 | (a) A record automatically qualified for expunction shall |
274 | be expunged if: |
275 | 1. An indictment, information, or other charging document |
276 | was not filed or issued in the case; |
277 | 2. An indictment, information, or other charging document |
278 | was filed or issued in the case and was dismissed or a nolle |
279 | prosequi was filed by the state attorney or statewide prosecutor |
280 | or the case was dismissed by a court of competent jurisdiction; |
281 | or |
282 | 3. The person was found not guilty or acquitted by a judge |
283 | or jury. |
284 | (b) Each petition to a court to expunge a criminal history |
285 | record under this subsection is complete only when accompanied |
286 | by a certified copy of the disposition of the offenses sought to |
287 | be sealed. |
288 | (c)1. A certificate of eligibility for expunction from the |
289 | department is not required under this subsection. |
290 | 2. Any court of competent jurisdiction may order a |
291 | criminal justice agency to expunge the criminal history record |
292 | of a minor or an adult whose record qualifies for automatic |
293 | expunction under this subsection. |
294 | 3. In judicial proceedings under this subsection, a copy |
295 | of the completed petition to expunge shall be served upon the |
296 | arresting agency; however, it is not necessary to make any |
297 | agency other than the state a party to the proceedings. The |
298 | arresting agency may respond to the court regarding the |
299 | completed petition to expunge. |
300 | 4. Notwithstanding this section, s. 943.059, and any other |
301 | provision of law, the court may order expunction of a criminal |
302 | history record pertaining to more than one arrest or more than |
303 | one incident of alleged criminal activity if the person has not |
304 | been adjudicated guilty of or adjudicated delinquent for |
305 | committing any of the acts stemming from the arrest or alleged |
306 | criminal activity or delinquent act to which the petition to |
307 | expunge pertains. |
308 | 5. If relief is granted by the court, the clerk of the |
309 | court shall certify copies of the order to the appropriate state |
310 | attorney or the statewide prosecutor, to the county, and to the |
311 | arresting agency. The arresting agency is responsible for |
312 | forwarding the order to any other agency to which the arresting |
313 | agency disseminated the criminal history record information to |
314 | which the order pertains. The department shall forward the order |
315 | to expunge to the Federal Bureau of Investigation. The clerk of |
316 | the court shall certify a copy of the order to any other agency |
317 | that court records indicate has received the criminal history |
318 | record from the court. The county is responsible for forwarding |
319 | the order to any agency, organization, or company to which the |
320 | county disseminated the criminal history information to which |
321 | the order pertains. |
322 | 6. The department or any other criminal justice agency is |
323 | not required to act on an order to expunge entered by a court |
324 | when such order does not comply with the requirements of this |
325 | section. Upon receipt of such an order, the department must |
326 | notify the issuing court, the appropriate state attorney or the |
327 | statewide prosecutor, the petitioner or the petitioner's |
328 | attorney, and the arresting agency within 5 business days after |
329 | determining that the department or the agency cannot comply with |
330 | the court order. The appropriate state attorney or the statewide |
331 | prosecutor shall take action within 5 business days to correct |
332 | the record and petition the court to void the order. No cause of |
333 | action, including contempt of court, may arise against any |
334 | criminal justice agency for failure to comply with an order to |
335 | expunge when such order does not comply with the requirements of |
336 | this subsection. |
337 | 7. An order expunging a criminal history record pursuant |
338 | to this subsection does not require that such record be |
339 | surrendered to the court, and such record shall continue to be |
340 | maintained by the department and other criminal justice |
341 | agencies. |
342 | (5)(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any |
343 | criminal history record of a minor or an adult which is ordered |
344 | expunged by a court of competent jurisdiction pursuant to this |
345 | section must be physically destroyed or obliterated by any |
346 | criminal justice agency having custody of such record; except |
347 | that any criminal history record in the custody of the |
348 | department must be retained in all cases. A criminal history |
349 | record ordered expunged that is retained by the department is |
350 | confidential and exempt from the provisions of s. 119.07(1) and |
351 | s. 24(a), Art. I of the State Constitution and not available to |
352 | any person or entity except upon order of a court of competent |
353 | jurisdiction. A criminal justice agency may retain a notation |
354 | indicating compliance with an order to expunge. |
355 | (a) The person who is the subject of a criminal history |
356 | record that is expunged under this section or under other |
357 | provisions of law, including former s. 893.14, former s. 901.33, |
358 | and former s. 943.058, may lawfully deny or fail to acknowledge |
359 | the arrests covered by the expunged record, except when the |
360 | subject of the record: |
361 | 1. Is a candidate for employment with a criminal justice |
362 | agency; |
363 | 2. Is a defendant in a criminal prosecution; |
364 | 3. Concurrently or subsequently petitions for relief under |
365 | this section or s. 943.059; |
366 | 4. Is a candidate for admission to The Florida Bar; |
367 | 5. Is seeking to be employed or licensed by or to contract |
368 | with the Department of Children and Family Services, the Agency |
369 | for Health Care Administration, the Agency for Persons with |
370 | Disabilities, or the Department of Juvenile Justice or to be |
371 | employed or used by such contractor or licensee in a sensitive |
372 | position having direct contact with children, the |
373 | developmentally disabled, the aged, or the elderly as provided |
374 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
375 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), |
376 | chapter 916, s. 985.644, chapter 400, or chapter 429; |
377 | 6. Is seeking to be employed or licensed by the Department |
378 | of Education, any district school board, any university |
379 | laboratory school, any charter school, any private or parochial |
380 | school, or any local governmental entity that licenses child |
381 | care facilities; or |
382 | 7. Is seeking authorization from a seaport listed in s. |
383 | 311.09 for employment within or access to one or more of such |
384 | seaports pursuant to s. 311.12. |
385 | (b) Subject to the exceptions in paragraph (a), a person |
386 | who has been granted an expunction under this section, former s. |
387 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
388 | under any provision of law of this state to commit perjury or to |
389 | be otherwise liable for giving a false statement by reason of |
390 | such person's failure to recite or acknowledge an expunged |
391 | criminal history record. |
392 | (c) Information relating to the existence of an expunged |
393 | criminal history record which is provided in accordance with |
394 | paragraph (a) is confidential and exempt from the provisions of |
395 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
396 | except that the department shall disclose the existence of a |
397 | criminal history record ordered expunged to the entities set |
398 | forth in subparagraphs (a)1., 4., 5., 6., and 7. for their |
399 | respective licensing, access authorization, and employment |
400 | purposes, and to criminal justice agencies for their respective |
401 | criminal justice purposes. It is unlawful for any employee of an |
402 | entity set forth in subparagraph (a)1., subparagraph (a)4., |
403 | subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to |
404 | disclose information relating to the existence of an expunged |
405 | criminal history record of a person seeking employment, access |
406 | authorization, or licensure with such entity or contractor, |
407 | except to the person to whom the criminal history record relates |
408 | or to persons having direct responsibility for employment, |
409 | access authorization, or licensure decisions. Any person who |
410 | violates this paragraph commits a misdemeanor of the first |
411 | degree, punishable as provided in s. 775.082 or s. 775.083. |
412 | (6)(5) STATUTORY REFERENCES.-Any reference to any other |
413 | chapter, section, or subdivision of the Florida Statutes in this |
414 | section constitutes a general reference under the doctrine of |
415 | incorporation by reference. |
416 | Section 3. Paragraph (a) of subsection (2) of section |
417 | 943.0582, Florida Statutes, is amended to read: |
418 | 943.0582 Prearrest, postarrest, or teen court diversion |
419 | program expunction.- |
420 | (2)(a) As used in this section, the term "expunction" has |
421 | the same meaning ascribed in and effect as s. 943.0585, except |
422 | that: |
423 | 1. The provisions of s. 943.0585(5)(4)(a) do not apply, |
424 | except that the criminal history record of a person whose record |
425 | is expunged pursuant to this section shall be made available |
426 | only to criminal justice agencies for the purpose of determining |
427 | eligibility for prearrest, postarrest, or teen court diversion |
428 | programs; when the record is sought as part of a criminal |
429 | investigation; or when the subject of the record is a candidate |
430 | for employment with a criminal justice agency. For all other |
431 | purposes, a person whose record is expunged under this section |
432 | may lawfully deny or fail to acknowledge the arrest and the |
433 | charge covered by the expunged record. |
434 | 2. Records maintained by local criminal justice agencies |
435 | in the county in which the arrest occurred that are eligible for |
436 | expunction pursuant to this section shall be sealed as the term |
437 | is used in s. 943.059. |
438 | Section 4. This act shall take effect July 1, 2011. |