CS/HB 1369

1
A bill to be entitled
2An act relating to criminal history records; providing a
3short title; amending s. 943.0585, F.S.; authorizing a
4court to expunge a criminal history record of a person who
5had a prior criminal history record sealed or expunged in
6certain circumstances; authorizing a person to lawfully
7deny or fail to acknowledge the arrests and subsequent
8dispositions of an expunged record under certain
9circumstances; providing that a person may fail to recite
10or acknowledge an expunged criminal history record on an
11employment application without committing certain
12violations; authorizing the Department of Law Enforcement
13to disclose the contents of an expunged record to the
14subject of the record upon the subject's request;
15providing requirements for a second expunction; requiring
16the website of a clerk of court to include information
17relating to sealing and expunction procedures and a link
18to related information on the department's website;
19amending s. 943.059, F.S.; authorizing a court to seal a
20criminal history record of a person who had a prior
21criminal history record sealed or expunged in certain
22circumstances; authorizing a person to lawfully deny or
23fail to acknowledge the arrests and subsequent
24dispositions of a sealed record under certain
25circumstances; providing that a person may fail to recite
26or acknowledge a sealed criminal history record on an
27employment application without committing certain
28violations; providing requirements for a second sealing;
29providing an effective date.
30
31Be It Enacted by the Legislature of the State of Florida:
32
33     Section 1.  This act may be cited as the "Jim King Keep
34Florida Working Act."
35     Section 2.  Paragraph (b) of subsection (1), paragraph (f)
36of subsection (2), paragraph (c) of subsection (3), and
37subsection (4) of section 943.0585, Florida Statutes, are
38amended, subsection (5) of that section is renumbered as
39subsection (7), and new subsections (5) and (6) are added to
40that section, to read:
41     943.0585  Court-ordered expunction of criminal history
42records.-The courts of this state have jurisdiction over their
43own procedures, including the maintenance, expunction, and
44correction of judicial records containing criminal history
45information to the extent such procedures are not inconsistent
46with the conditions, responsibilities, and duties established by
47this section. Any court of competent jurisdiction may order a
48criminal justice agency to expunge the criminal history record
49of a minor or an adult who complies with the requirements of
50this section. The court shall not order a criminal justice
51agency to expunge a criminal history record until the person
52seeking to expunge a criminal history record has applied for and
53received a certificate of eligibility for expunction pursuant to
54subsection (2). A criminal history record that relates to a
55violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
56s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
57827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
58893.135, s. 916.1075, a violation enumerated in s. 907.041, or
59any violation specified as a predicate offense for registration
60as a sexual predator pursuant to s. 775.21, without regard to
61whether that offense alone is sufficient to require such
62registration, or for registration as a sexual offender pursuant
63to s. 943.0435, may not be expunged, without regard to whether
64adjudication was withheld, if the defendant was found guilty of
65or pled guilty or nolo contendere to the offense, or if the
66defendant, as a minor, was found to have committed, or pled
67guilty or nolo contendere to committing, the offense as a
68delinquent act. The court may only order expunction of a
69criminal history record pertaining to one arrest or one incident
70of alleged criminal activity, except as provided in this
71section. The court may, at its sole discretion, order the
72expunction of a criminal history record pertaining to more than
73one arrest if the additional arrests directly relate to the
74original arrest. If the court intends to order the expunction of
75records pertaining to such additional arrests, such intent must
76be specified in the order. A criminal justice agency may not
77expunge any record pertaining to such additional arrests if the
78order to expunge does not articulate the intention of the court
79to expunge a record pertaining to more than one arrest. This
80section does not prevent the court from ordering the expunction
81of only a portion of a criminal history record pertaining to one
82arrest or one incident of alleged criminal activity.
83Notwithstanding any law to the contrary, a criminal justice
84agency may comply with laws, court orders, and official requests
85of other jurisdictions relating to expunction, correction, or
86confidential handling of criminal history records or information
87derived therefrom. This section does not confer any right to the
88expunction of any criminal history record, and any request for
89expunction of a criminal history record may be denied at the
90sole discretion of the court.
91     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each
92petition to a court to expunge a criminal history record is
93complete only when accompanied by:
94     (b)  The petitioner's sworn statement attesting that the
95petitioner:
96     1.  Has never, prior to the date on which the petition is
97filed, been adjudicated guilty of a criminal offense or
98comparable ordinance violation, or been adjudicated delinquent
99for committing any felony or a misdemeanor specified in s.
100943.051(3)(b).
101     2.  Has not been adjudicated guilty of, or adjudicated
102delinquent for committing, any of the acts stemming from the
103arrest or alleged criminal activity to which the petition
104pertains.
105     3.  Has never secured a prior sealing or expunction, except
106as provided in subsection (5) and s. 943.059(5), of a criminal
107history record under this section, former s. 893.14, former s.
108901.33, or former s. 943.058, or from any jurisdiction outside
109the state, unless expunction is sought of a criminal history
110record previously sealed for 10 years pursuant to paragraph
111(2)(h) and the record is otherwise eligible for expunction.
112     4.  Is eligible for such an expunction to the best of his
113or her knowledge or belief and does not have any other petition
114to expunge or any petition to seal pending before any court.
115
116Any person who knowingly provides false information on such
117sworn statement to the court commits a felony of the third
118degree, punishable as provided in s. 775.082, s. 775.083, or s.
119775.084.
120     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to
121petitioning the court to expunge a criminal history record, a
122person seeking to expunge a criminal history record shall apply
123to the department for a certificate of eligibility for
124expunction. The department shall, by rule adopted pursuant to
125chapter 120, establish procedures pertaining to the application
126for and issuance of certificates of eligibility for expunction.
127A certificate of eligibility for expunction is valid for 12
128months after the date stamped on the certificate when issued by
129the department. After that time, the petitioner must reapply to
130the department for a new certificate of eligibility. Eligibility
131for a renewed certification of eligibility must be based on the
132status of the applicant and the law in effect at the time of the
133renewal application. The department shall issue a certificate of
134eligibility for expunction to a person who is the subject of a
135criminal history record if that person:
136     (f)  Has never secured a prior sealing or expunction,
137except as provided in subsection (5) and s. 943.059(5), of a
138criminal history record under this section, former s. 893.14,
139former s. 901.33, or former s. 943.058, unless expunction is
140sought of a criminal history record previously sealed for 10
141years pursuant to paragraph (h) and the record is otherwise
142eligible for expunction.
143     (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.-
144     (c)  For an order to expunge entered by a court prior to
145July 1, 1992, the department shall notify the appropriate state
146attorney or statewide prosecutor of an order to expunge which is
147contrary to law because the person who is the subject of the
148record has previously been convicted of a crime or comparable
149ordinance violation or has had a prior criminal history record
150sealed or expunged, except as provided in subsection (5) and s.
151943.059(5). Upon receipt of such notice, the appropriate state
152attorney or statewide prosecutor shall take action, within 60
153days, to correct the record and petition the court to void the
154order to expunge. The department shall seal the record until
155such time as the order is voided by the court.
156     (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any
157criminal history record of a minor or an adult which is ordered
158expunged by a court of competent jurisdiction pursuant to this
159section must be physically destroyed or obliterated by any
160criminal justice agency having custody of such record; except
161that any criminal history record in the custody of the
162department must be retained in all cases. A criminal history
163record ordered expunged that is retained by the department is
164confidential and exempt from the provisions of s. 119.07(1) and
165s. 24(a), Art. I of the State Constitution and not available to
166any person or entity except upon order of a court of competent
167jurisdiction. A criminal justice agency may retain a notation
168indicating compliance with an order to expunge.
169     (a)  The person who is the subject of a criminal history
170record that is expunged under this section or under other
171provisions of law, including former s. 893.14, former s. 901.33,
172and former s. 943.058, may lawfully deny or fail to acknowledge
173the arrests and subsequent dispositions covered by the expunged
174record, except when the subject of the record:
175     1.  Is a candidate for employment with a criminal justice
176agency;
177     2.  Is a defendant in a criminal prosecution;
178     3.  Concurrently or subsequently petitions for relief under
179this section or s. 943.059;
180     4.  Is a candidate for admission to The Florida Bar;
181     5.  Is seeking to be employed or licensed by or to contract
182with the Department of Children and Family Services, the Agency
183for Health Care Administration, the Agency for Persons with
184Disabilities, or the Department of Juvenile Justice or to be
185employed or used by such contractor or licensee in a sensitive
186position having direct contact with children, the
187developmentally disabled, the aged, or the elderly as provided
188in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
189402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5),
190chapter 916, s. 985.644, chapter 400, or chapter 429;
191     6.  Is seeking to be employed or licensed by the Department
192of Education, any district school board, any university
193laboratory school, any charter school, any private or parochial
194school, or any local governmental entity that licenses child
195care facilities; or
196     7.  Is seeking authorization from a seaport listed in s.
197311.09 for employment within or access to one or more of such
198seaports pursuant to s. 311.12.
199     (b)  Subject to the exceptions in paragraph (a), a person
200who has been granted an expunction under this section, former s.
201893.14, former s. 901.33, or former s. 943.058 may not be held
202under any provision of law of this state to commit perjury or to
203be otherwise liable for giving a false statement by reason of
204such person's failure to recite or acknowledge an expunged
205criminal history record, including failure to recite or
206acknowledge such information on an employment application.
207     (c)  Information relating to the existence of an expunged
208criminal history record which is provided in accordance with
209paragraph (a) is confidential and exempt from the provisions of
210s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
211except that the department shall disclose the existence of a
212criminal history record ordered expunged to the entities set
213forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
214respective licensing, access authorization, and employment
215purposes, and to criminal justice agencies for their respective
216criminal justice purposes. It is unlawful for any employee of an
217entity set forth in subparagraph (a)1., subparagraph (a)4.,
218subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
219disclose information relating to the existence of an expunged
220criminal history record of a person seeking employment, access
221authorization, or licensure with such entity or contractor,
222except to the person to whom the criminal history record relates
223or to persons having direct responsibility for employment,
224access authorization, or licensure decisions. Any person who
225violates this paragraph commits a misdemeanor of the first
226degree, punishable as provided in s. 775.082 or s. 775.083.
227     (d)  The department may disclose the contents of an
228expunged record to the subject of the record upon the receipt of
229a written, notarized request from the subject of the record.
230     (5)  EXPUNCTION OF CRIMINAL HISTORY RECORD AFTER PRIOR
231SEALING OR EXPUNCTION.-
232     (a)  A court may expunge a person's criminal history record
233after a prior criminal history record has been sealed or
234expunged only if the person obtains a certificate from the
235department to expunge the criminal history record. The
236department may issue the certificate for a second expunction
237only if:
238     1.  The person has had only one prior expunction of his or
239her criminal history record under this section or one prior
240expunction following the sealing of the same arrest or alleged
241criminal activity that was expunged;
242     2.  The person has not been arrested in this state during
243the 10-year period prior to the date on which the application
244for the certificate is filed; and
245     3.  The person has not previously sealed or expunged a
246criminal history record that involved the same offense to which
247the petition to expunge pertains.
248     (b)  All other provisions and requirements of this section
249apply to an application to expunge a second criminal history
250record.
251     (6)  INFORMATION.-Each website for the office of a clerk of
252court must include information relating to procedures to seal or
253expunge criminal history records. This information must include
254a link to related information on the department's website.
255     Section 3.  Paragraph (b) of subsection (1), paragraph (e)
256of subsection (2), paragraph (c) of subsection (3), and
257paragraphs (a) and (b) of subsection (4) of section 943.059,
258Florida Statutes, are amended, subsection (5) is renumbered as
259subsection (6), and a new subsection (5) is added to that
260section, to read:
261     943.059  Court-ordered sealing of criminal history
262records.-The courts of this state shall continue to have
263jurisdiction over their own procedures, including the
264maintenance, sealing, and correction of judicial records
265containing criminal history information to the extent such
266procedures are not inconsistent with the conditions,
267responsibilities, and duties established by this section. Any
268court of competent jurisdiction may order a criminal justice
269agency to seal the criminal history record of a minor or an
270adult who complies with the requirements of this section. The
271court shall not order a criminal justice agency to seal a
272criminal history record until the person seeking to seal a
273criminal history record has applied for and received a
274certificate of eligibility for sealing pursuant to subsection
275(2). A criminal history record that relates to a violation of s.
276393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
277800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
278839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
279916.1075, a violation enumerated in s. 907.041, or any violation
280specified as a predicate offense for registration as a sexual
281predator pursuant to s. 775.21, without regard to whether that
282offense alone is sufficient to require such registration, or for
283registration as a sexual offender pursuant to s. 943.0435, may
284not be sealed, without regard to whether adjudication was
285withheld, if the defendant was found guilty of or pled guilty or
286nolo contendere to the offense, or if the defendant, as a minor,
287was found to have committed or pled guilty or nolo contendere to
288committing the offense as a delinquent act. The court may only
289order sealing of a criminal history record pertaining to one
290arrest or one incident of alleged criminal activity, except as
291provided in this section. The court may, at its sole discretion,
292order the sealing of a criminal history record pertaining to
293more than one arrest if the additional arrests directly relate
294to the original arrest. If the court intends to order the
295sealing of records pertaining to such additional arrests, such
296intent must be specified in the order. A criminal justice agency
297may not seal any record pertaining to such additional arrests if
298the order to seal does not articulate the intention of the court
299to seal records pertaining to more than one arrest. This section
300does not prevent the court from ordering the sealing of only a
301portion of a criminal history record pertaining to one arrest or
302one incident of alleged criminal activity. Notwithstanding any
303law to the contrary, a criminal justice agency may comply with
304laws, court orders, and official requests of other jurisdictions
305relating to sealing, correction, or confidential handling of
306criminal history records or information derived therefrom. This
307section does not confer any right to the sealing of any criminal
308history record, and any request for sealing a criminal history
309record may be denied at the sole discretion of the court.
310     (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.-Each
311petition to a court to seal a criminal history record is
312complete only when accompanied by:
313     (b)  The petitioner's sworn statement attesting that the
314petitioner:
315     1.  Has never, prior to the date on which the petition is
316filed, been adjudicated guilty of a criminal offense or
317comparable ordinance violation, or been adjudicated delinquent
318for committing any felony or a misdemeanor specified in s.
319943.051(3)(b).
320     2.  Has not been adjudicated guilty of or adjudicated
321delinquent for committing any of the acts stemming from the
322arrest or alleged criminal activity to which the petition to
323seal pertains.
324     3.  Has never secured a prior sealing or expunction, except
325as provided in subsection (5), of a criminal history record
326under this section, former s. 893.14, former s. 901.33, former
327s. 943.058, or from any jurisdiction outside the state.
328     4.  Is eligible for such a sealing to the best of his or
329her knowledge or belief and does not have any other petition to
330seal or any petition to expunge pending before any court.
331
332Any person who knowingly provides false information on such
333sworn statement to the court commits a felony of the third
334degree, punishable as provided in s. 775.082, s. 775.083, or s.
335775.084.
336     (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.-Prior to
337petitioning the court to seal a criminal history record, a
338person seeking to seal a criminal history record shall apply to
339the department for a certificate of eligibility for sealing. The
340department shall, by rule adopted pursuant to chapter 120,
341establish procedures pertaining to the application for and
342issuance of certificates of eligibility for sealing. A
343certificate of eligibility for sealing is valid for 12 months
344after the date stamped on the certificate when issued by the
345department. After that time, the petitioner must reapply to the
346department for a new certificate of eligibility. Eligibility for
347a renewed certification of eligibility must be based on the
348status of the applicant and the law in effect at the time of the
349renewal application. The department shall issue a certificate of
350eligibility for sealing to a person who is the subject of a
351criminal history record provided that such person:
352     (e)  Has never secured a prior sealing or expunction,
353except as provided in subsection (5), of a criminal history
354record under this section, former s. 893.14, former s. 901.33,
355or former s. 943.058.
356     (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.-
357     (c)  For an order to seal entered by a court prior to July
3581, 1992, the department shall notify the appropriate state
359attorney or statewide prosecutor of any order to seal which is
360contrary to law because the person who is the subject of the
361record has previously been convicted of a crime or comparable
362ordinance violation or has had a prior criminal history record
363sealed or expunged, except as provided in subsection (5). Upon
364receipt of such notice, the appropriate state attorney or
365statewide prosecutor shall take action, within 60 days, to
366correct the record and petition the court to void the order to
367seal. The department shall seal the record until such time as
368the order is voided by the court.
369     (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.-A criminal
370history record of a minor or an adult which is ordered sealed by
371a court of competent jurisdiction pursuant to this section is
372confidential and exempt from the provisions of s. 119.07(1) and
373s. 24(a), Art. I of the State Constitution and is available only
374to the person who is the subject of the record, to the subject's
375attorney, to criminal justice agencies for their respective
376criminal justice purposes, which include conducting a criminal
377history background check for approval of firearms purchases or
378transfers as authorized by state or federal law, to judges in
379the state courts system for the purpose of assisting them in
380their case-related decisionmaking responsibilities, as set forth
381in s. 943.053(5), or to those entities set forth in
382subparagraphs (a)1., 4., 5., 6., and 8. for their respective
383licensing, access authorization, and employment purposes.
384     (a)  The subject of a criminal history record sealed under
385this section or under other provisions of law, including former
386s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
387deny or fail to acknowledge the arrests and subsequent
388dispositions covered by the sealed record, except when the
389subject of the record:
390     1.  Is a candidate for employment with a criminal justice
391agency;
392     2.  Is a defendant in a criminal prosecution;
393     3.  Concurrently or subsequently petitions for relief under
394this section or s. 943.0585;
395     4.  Is a candidate for admission to The Florida Bar;
396     5.  Is seeking to be employed or licensed by or to contract
397with the Department of Children and Family Services, the Agency
398for Health Care Administration, the Agency for Persons with
399Disabilities, or the Department of Juvenile Justice or to be
400employed or used by such contractor or licensee in a sensitive
401position having direct contact with children, the
402developmentally disabled, the aged, or the elderly as provided
403in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
404402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), s.
405415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
406     6.  Is seeking to be employed or licensed by the Department
407of Education, any district school board, any university
408laboratory school, any charter school, any private or parochial
409school, or any local governmental entity that licenses child
410care facilities;
411     7.  Is attempting to purchase a firearm from a licensed
412importer, licensed manufacturer, or licensed dealer and is
413subject to a criminal history check under state or federal law;
414or
415     8.  Is seeking authorization from a Florida seaport
416identified in s. 311.09 for employment within or access to one
417or more of such seaports pursuant to s. 311.12.
418     (b)  Subject to the exceptions in paragraph (a), a person
419who has been granted a sealing under this section, former s.
420893.14, former s. 901.33, or former s. 943.058 may not be held
421under any provision of law of this state to commit perjury or to
422be otherwise liable for giving a false statement by reason of
423such person's failure to recite or acknowledge a sealed criminal
424history record, including failure to recite or acknowledge such
425information on an employment application.
426     (5)  SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
427OR EXPUNCTION.-
428     (a)  A court may seal a person's criminal history record
429after a prior criminal history record has been sealed or
430expunged only if the person obtains a certificate from the
431department to seal the criminal history record. The department
432may issue the certificate for a second sealing only if:
433     1.  The person has had only one prior expunction or sealing
434of his or her criminal history record under s. 943.0585 or this
435section or one prior expunction following the sealing of the
436same arrest or alleged criminal activity that was expunged;
437     2.  The person has not been arrested in this state during
438the 5-year period prior to the date on which the application for
439the certificate is filed; and
440     3.  The person has not previously sealed or expunged a
441criminal history record that involved the same offense to which
442the petition to seal pertains.
443     (b)  All other provisions and requirements of this section
444apply to an application to seal a second criminal history
445record.
446     Section 4.  This act shall take effect July 1, 2011.


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