Florida Senate - 2011 COMMITTEE AMENDMENT Bill No. SB 1402 Barcode 589598 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/12/2011 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Criminal Justice (Smith) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. This act may be cited as the “Jim King Keep 6 Florida Working Act.” 7 Section 2. Paragraph (b) of subsection (1), paragraph (f) 8 of subsection (2), paragraph (c) of subsection (3), and 9 subsection (4) of section 943.0585, Florida Statutes, are 10 amended, subsection (5) of that section is renumbered as 11 subsection (7), and a new subsection (5) and subsection (6) are 12 added to that section, to read: 13 943.0585 Court-ordered expunction of criminal history 14 records.—The courts of this state have jurisdiction over their 15 own procedures, including the maintenance, expunction, and 16 correction of judicial records containing criminal history 17 information to the extent such procedures are not inconsistent 18 with the conditions, responsibilities, and duties established by 19 this section. Any court of competent jurisdiction may order a 20 criminal justice agency to expunge the criminal history record 21 of a minor or an adult who complies with the requirements of 22 this section. The court shall not order a criminal justice 23 agency to expunge a criminal history record until the person 24 seeking to expunge a criminal history record has applied for and 25 received a certificate of eligibility for expunction pursuant to 26 subsection (2). A criminal history record that relates to a 27 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 28 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 29 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 30 893.135, s. 916.1075, a violation enumerated in s. 907.041, or 31 any violation specified as a predicate offense for registration 32 as a sexual predator pursuant to s. 775.21, without regard to 33 whether that offense alone is sufficient to require such 34 registration, or for registration as a sexual offender pursuant 35 to s. 943.0435, may not be expunged, without regard to whether 36 adjudication was withheld, if the defendant was found guilty of 37 or pled guilty or nolo contendere to the offense, or if the 38 defendant, as a minor, was found to have committed, or pled 39 guilty or nolo contendere to committing, the offense as a 40 delinquent act. The court may only order expunction of a 41 criminal history record pertaining to one arrest or one incident 42 of alleged criminal activity, except as provided in this 43 section. The court may, at its sole discretion, order the 44 expunction of a criminal history record pertaining to more than 45 one arrest if the additional arrests directly relate to the 46 original arrest. If the court intends to order the expunction of 47 records pertaining to such additional arrests, such intent must 48 be specified in the order. A criminal justice agency may not 49 expunge any record pertaining to such additional arrests if the 50 order to expunge does not articulate the intention of the court 51 to expunge a record pertaining to more than one arrest. This 52 section does not prevent the court from ordering the expunction 53 of only a portion of a criminal history record pertaining to one 54 arrest or one incident of alleged criminal activity. 55 Notwithstanding any law to the contrary, a criminal justice 56 agency may comply with laws, court orders, and official requests 57 of other jurisdictions relating to expunction, correction, or 58 confidential handling of criminal history records or information 59 derived therefrom. This section does not confer any right to the 60 expunction of any criminal history record, and any request for 61 expunction of a criminal history record may be denied at the 62 sole discretion of the court. 63 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each 64 petition to a court to expunge a criminal history record is 65 complete only when accompanied by: 66 (b) The petitioner’s sworn statement attesting that the 67 petitioner: 68 1. Has never, prior to the date on which the petition is 69 filed, been adjudicated guilty of a criminal offense or 70 comparable ordinance violation, or been adjudicated delinquent 71 for committing any felony or a misdemeanor specified in s. 72 943.051(3)(b). 73 2. Has not been adjudicated guilty of, or adjudicated 74 delinquent for committing, any of the acts stemming from the 75 arrest or alleged criminal activity to which the petition 76 pertains. 77 3. Has never secured a prior sealing or expunction, except 78 as provided in subsection (5) and s. 943.059(5), of a criminal 79 history record under this section, former s. 893.14, former s. 80 901.33, or former s. 943.058, or from any jurisdiction outside 81 the state, unless expunction is sought of a criminal history 82 record previously sealed for 10 years pursuant to paragraph 83 (2)(h) and the record is otherwise eligible for expunction. 84 4. Is eligible for such an expunction to the best of his or 85 her knowledge or belief and does not have any other petition to 86 expunge or any petition to seal pending before any court. 87 88 Any person who knowingly provides false information on such 89 sworn statement to the court commits a felony of the third 90 degree, punishable as provided in s. 775.082, s. 775.083, or s. 91 775.084. 92 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to 93 petitioning the court to expunge a criminal history record, a 94 person seeking to expunge a criminal history record shall apply 95 to the department for a certificate of eligibility for 96 expunction. The department shall, by rule adopted pursuant to 97 chapter 120, establish procedures pertaining to the application 98 for and issuance of certificates of eligibility for expunction. 99 A certificate of eligibility for expunction is valid for 12 100 months after the date stamped on the certificate when issued by 101 the department. After that time, the petitioner must reapply to 102 the department for a new certificate of eligibility. Eligibility 103 for a renewed certification of eligibility must be based on the 104 status of the applicant and the law in effect at the time of the 105 renewal application. The department shall issue a certificate of 106 eligibility for expunction to a person who is the subject of a 107 criminal history record if that person: 108 (f) Has never secured a prior sealing or expunction, except 109 as provided in subsection (5) and s. 943.059(5), of a criminal 110 history record under this section, former s. 893.14, former s. 111 901.33, or former s. 943.058, unless expunction is sought of a 112 criminal history record previously sealed for 10 years pursuant 113 to paragraph (h) and the record is otherwise eligible for 114 expunction. 115 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.— 116 (c) For an order to expunge entered by a court prior to 117 July 1, 1992, the department shall notify the appropriate state 118 attorney or statewide prosecutor of an order to expunge which is 119 contrary to law because the person who is the subject of the 120 record has previously been convicted of a crime or comparable 121 ordinance violation or has had a prior criminal history record 122 sealed or expunged, except as provided in subsection (5) and s. 123 943.059(5). Upon receipt of such notice, the appropriate state 124 attorney or statewide prosecutor shall take action, within 60 125 days, to correct the record and petition the court to void the 126 order to expunge. The department shall seal the record until 127 such time as the order is voided by the court. 128 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any 129 criminal history record of a minor or an adult which is ordered 130 expunged by a court of competent jurisdiction pursuant to this 131 section must be physically destroyed or obliterated by any 132 criminal justice agency having custody of such record; except 133 that any criminal history record in the custody of the 134 department must be retained in all cases. A criminal history 135 record ordered expunged that is retained by the department is 136 confidential and exempt from the provisions of s. 119.07(1) and 137 s. 24(a), Art. I of the State Constitution and not available to 138 any person or entity except upon order of a court of competent 139 jurisdiction. A criminal justice agency may retain a notation 140 indicating compliance with an order to expunge. 141 (a) The person who is the subject of a criminal history 142 record that is expunged under this section or under other 143 provisions of law, including former s. 893.14, former s. 901.33, 144 and former s. 943.058, may lawfully deny or fail to acknowledge 145 the arrests and subsequent dispositions covered by the expunged 146 record, except when the subject of the record: 147 1. Is a candidate for employment with a criminal justice 148 agency; 149 2. Is a defendant in a criminal prosecution; 150 3. Concurrently or subsequently petitions for relief under 151 this section or s. 943.059; 152 4. Is a candidate for admission to The Florida Bar; 153 5. Is seeking to be employed or licensed by or to contract 154 with the Department of Children and Family Services, the Agency 155 for Health Care Administration, the Agency for Persons with 156 Disabilities, or the Department of Juvenile Justice or to be 157 employed or used by such contractor or licensee in a sensitive 158 position having direct contact with children, the 159 developmentally disabled, the aged, or the elderly as provided 160 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 161 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), 162 chapter 916, s. 985.644, chapter 400, or chapter 429; 163 6. Is seeking to be employed or licensed by the Department 164 of Education, any district school board, any university 165 laboratory school, any charter school, any private or parochial 166 school, or any local governmental entity that licenses child 167 care facilities; or 168 7. Is seeking authorization from a seaport listed in s. 169 311.09 for employment within or access to one or more of such 170 seaports pursuant to s. 311.12. 171 (b) Subject to the exceptions in paragraph (a), a person 172 who has been granted an expunction under this section, former s. 173 893.14, former s. 901.33, or former s. 943.058 may not be held 174 under any provision of law of this state to commit perjury or to 175 be otherwise liable for giving a false statement by reason of 176 such person’s failure to recite or acknowledge an expunged 177 criminal history record, including failure to recite or 178 acknowledge such information on an employment application. 179 (c) Information relating to the existence of an expunged 180 criminal history record which is provided in accordance with 181 paragraph (a) is confidential and exempt from the provisions of 182 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 183 except that the department shall disclose the existence of a 184 criminal history record ordered expunged to the entities set 185 forth in subparagraphs (a)1., 4., 5., 6., and 7. for their 186 respective licensing, access authorization, and employment 187 purposes, and to criminal justice agencies for their respective 188 criminal justice purposes. It is unlawful for any employee of an 189 entity set forth in subparagraph (a)1., subparagraph (a)4., 190 subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to 191 disclose information relating to the existence of an expunged 192 criminal history record of a person seeking employment, access 193 authorization, or licensure with such entity or contractor, 194 except to the person to whom the criminal history record relates 195 or to persons having direct responsibility for employment, 196 access authorization, or licensure decisions. Any person who 197 violates this paragraph commits a misdemeanor of the first 198 degree, punishable as provided in s. 775.082 or s. 775.083. 199 (d) The department may disclose the contents of an expunged 200 record to the subject of the record upon receipt of a written, 201 notarized request from the subject of the record. 202 (5) EXPUNCTION OF CRIMINAL HISTORY RECORD AFTER PRIOR 203 SEALING OR EXPUNCTION.— 204 (a) A court may expunge a person’s criminal history record 205 after a prior criminal history record has been sealed or 206 expunged only if the person obtains a certificate from the 207 department to expunge the criminal history record. The 208 department may issue the certificate for a second expunction 209 only if: 210 1. The person has had only one prior expunction of his or 211 her criminal history record under this section or one prior 212 expunction following the sealing of the same arrest or alleged 213 criminal activity that was expunged; 214 2. The person has not been arrested in this state during 215 the 10-year period prior to the date on which the application 216 for the certificate is filed; and 217 3. The person has not previously sealed or expunged a 218 criminal history record that involved the same offense to which 219 the petition to expunge pertains. 220 (b) All other provisions and requirements of this section 221 apply to an application to expunge a second criminal history 222 record. 223 (6) INFORMATION.—Each website for the office of a clerk of 224 court must include information relating to procedures to seal or 225 expunge criminal history records. This information must include 226 a link to related information on the department’s website. 227 Section 3. Paragraph (b) of subsection (1), paragraph (e) 228 of subsection (2), paragraph (c) of subsection (3), and 229 paragraphs (a) and (b) of subsection (4) of section 943.059, 230 Florida Statutes, are amended, subsection (5) is renumbered as 231 subsection (6), and a new subsection (5) is added to that 232 section, to read: 233 943.059 Court-ordered sealing of criminal history records. 234 The courts of this state shall continue to have jurisdiction 235 over their own procedures, including the maintenance, sealing, 236 and correction of judicial records containing criminal history 237 information to the extent such procedures are not inconsistent 238 with the conditions, responsibilities, and duties established by 239 this section. Any court of competent jurisdiction may order a 240 criminal justice agency to seal the criminal history record of a 241 minor or an adult who complies with the requirements of this 242 section. The court shall not order a criminal justice agency to 243 seal a criminal history record until the person seeking to seal 244 a criminal history record has applied for and received a 245 certificate of eligibility for sealing pursuant to subsection 246 (2). A criminal history record that relates to a violation of s. 247 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 248 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 249 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 250 916.1075, a violation enumerated in s. 907.041, or any violation 251 specified as a predicate offense for registration as a sexual 252 predator pursuant to s. 775.21, without regard to whether that 253 offense alone is sufficient to require such registration, or for 254 registration as a sexual offender pursuant to s. 943.0435, may 255 not be sealed, without regard to whether adjudication was 256 withheld, if the defendant was found guilty of or pled guilty or 257 nolo contendere to the offense, or if the defendant, as a minor, 258 was found to have committed or pled guilty or nolo contendere to 259 committing the offense as a delinquent act. The court may only 260 order sealing of a criminal history record pertaining to one 261 arrest or one incident of alleged criminal activity, except as 262 provided in this section. The court may, at its sole discretion, 263 order the sealing of a criminal history record pertaining to 264 more than one arrest if the additional arrests directly relate 265 to the original arrest. If the court intends to order the 266 sealing of records pertaining to such additional arrests, such 267 intent must be specified in the order. A criminal justice agency 268 may not seal any record pertaining to such additional arrests if 269 the order to seal does not articulate the intention of the court 270 to seal records pertaining to more than one arrest. This section 271 does not prevent the court from ordering the sealing of only a 272 portion of a criminal history record pertaining to one arrest or 273 one incident of alleged criminal activity. Notwithstanding any 274 law to the contrary, a criminal justice agency may comply with 275 laws, court orders, and official requests of other jurisdictions 276 relating to sealing, correction, or confidential handling of 277 criminal history records or information derived therefrom. This 278 section does not confer any right to the sealing of any criminal 279 history record, and any request for sealing a criminal history 280 record may be denied at the sole discretion of the court. 281 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each 282 petition to a court to seal a criminal history record is 283 complete only when accompanied by: 284 (b) The petitioner’s sworn statement attesting that the 285 petitioner: 286 1. Has never, prior to the date on which the petition is 287 filed, been adjudicated guilty of a criminal offense or 288 comparable ordinance violation, or been adjudicated delinquent 289 for committing any felony or a misdemeanor specified in s. 290 943.051(3)(b). 291 2. Has not been adjudicated guilty of or adjudicated 292 delinquent for committing any of the acts stemming from the 293 arrest or alleged criminal activity to which the petition to 294 seal pertains. 295 3. Has never secured a prior sealing or expunction, except 296 as provided in subsection (5), of a criminal history record 297 under this section, former s. 893.14, former s. 901.33, former 298 s. 943.058, or from any jurisdiction outside the state. 299 4. Is eligible for such a sealing to the best of his or her 300 knowledge or belief and does not have any other petition to seal 301 or any petition to expunge pending before any court. 302 303 Any person who knowingly provides false information on such 304 sworn statement to the court commits a felony of the third 305 degree, punishable as provided in s. 775.082, s. 775.083, or s. 306 775.084. 307 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to 308 petitioning the court to seal a criminal history record, a 309 person seeking to seal a criminal history record shall apply to 310 the department for a certificate of eligibility for sealing. The 311 department shall, by rule adopted pursuant to chapter 120, 312 establish procedures pertaining to the application for and 313 issuance of certificates of eligibility for sealing. A 314 certificate of eligibility for sealing is valid for 12 months 315 after the date stamped on the certificate when issued by the 316 department. After that time, the petitioner must reapply to the 317 department for a new certificate of eligibility. Eligibility for 318 a renewed certification of eligibility must be based on the 319 status of the applicant and the law in effect at the time of the 320 renewal application. The department shall issue a certificate of 321 eligibility for sealing to a person who is the subject of a 322 criminal history record provided that such person: 323 (e) Has never secured a prior sealing or expunction, except 324 as provided in subsection (5), of a criminal history record 325 under this section, former s. 893.14, former s. 901.33, or 326 former s. 943.058. 327 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.— 328 (c) For an order to seal entered by a court prior to July 329 1, 1992, the department shall notify the appropriate state 330 attorney or statewide prosecutor of any order to seal which is 331 contrary to law because the person who is the subject of the 332 record has previously been convicted of a crime or comparable 333 ordinance violation or has had a prior criminal history record 334 sealed or expunged, except as provided in subsection (5). Upon 335 receipt of such notice, the appropriate state attorney or 336 statewide prosecutor shall take action, within 60 days, to 337 correct the record and petition the court to void the order to 338 seal. The department shall seal the record until such time as 339 the order is voided by the court. 340 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 341 history record of a minor or an adult which is ordered sealed by 342 a court of competent jurisdiction pursuant to this section is 343 confidential and exempt from the provisions of s. 119.07(1) and 344 s. 24(a), Art. I of the State Constitution and is available only 345 to the person who is the subject of the record, to the subject’s 346 attorney, to criminal justice agencies for their respective 347 criminal justice purposes, which include conducting a criminal 348 history background check for approval of firearms purchases or 349 transfers as authorized by state or federal law, to judges in 350 the state courts system for the purpose of assisting them in 351 their case-related decisionmaking responsibilities, as set forth 352 in s. 943.053(5), or to those entities set forth in 353 subparagraphs (a)1., 4., 5., 6., and 8. for their respective 354 licensing, access authorization, and employment purposes. 355 (a) The subject of a criminal history record sealed under 356 this section or under other provisions of law, including former 357 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully 358 deny or fail to acknowledge the arrests and subsequent 359 dispositions covered by the sealed 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. 943.0585; 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), s. 376 415.103, 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; 382 7. Is attempting to purchase a firearm from a licensed 383 importer, licensed manufacturer, or licensed dealer and is 384 subject to a criminal history check under state or federal law; 385 or 386 8. Is seeking authorization from a Florida seaport 387 identified in s. 311.09 for employment within or access to one 388 or more of such seaports pursuant to s. 311.12. 389 (b) Subject to the exceptions in paragraph (a), a person 390 who has been granted a sealing under this section, former s. 391 893.14, former s. 901.33, or former s. 943.058 may not be held 392 under any provision of law of this state to commit perjury or to 393 be otherwise liable for giving a false statement by reason of 394 such person’s failure to recite or acknowledge a sealed criminal 395 history record, including failure to recite or acknowledge such 396 information on an employment application. 397 (5) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING 398 OR EXPUNCTION.— 399 (a) A court may seal a person’s criminal history record 400 after a prior criminal history record has been sealed or 401 expunged only if the person obtains a certificate from the 402 department to seal the criminal history record. The department 403 may issue the certificate for a second sealing only if: 404 1. The person has had only one prior expunction or sealing 405 of his or her criminal history record under s. 943.0585 or this 406 section or one prior expunction following the sealing of the 407 same arrest or alleged criminal activity that was expunged; 408 2. The person has not been arrested in this state during 409 the 5-year period prior to the date on which the application for 410 the certificate is filed; and 411 3. The person has not previously sealed or expunged a 412 criminal history record that involved the same offense to which 413 the petition to seal pertains. 414 (b) All other provisions and requirements of this section 415 apply to an application to seal a second criminal history 416 record. 417 Section 4. This act shall take effect July 1, 2011. 418 419 ================= T I T L E A M E N D M E N T ================ 420 And the title is amended as follows: 421 422 Delete everything before the enacting clause 423 and insert: 424 A bill to be entitled 425 An act relating to criminal history records; providing 426 a short title; amending s. 943.0585, F.S.; authorizing 427 a court to expunge a criminal history record of a 428 person who had a prior criminal history record sealed 429 or expunged in certain circumstances; authorizing a 430 person to lawfully deny or fail to acknowledge the 431 arrests and subsequent dispositions of an expunged 432 record under certain circumstances; providing that a 433 person may fail to recite or acknowledge an expunged 434 criminal history record on an employment application 435 without committing certain violations; authorizing the 436 Department of Law Enforcement to disclose the contents 437 of an expunged record to the subject of the record 438 upon the subject’s request; providing requirements for 439 a second expunction; requiring the website of a clerk 440 of court to include information relating to sealing 441 and expunction procedures and a link to related 442 information on the department’s website; amending s. 443 943.059, F.S.; authorizing a court to seal a criminal 444 history record of a person who had a prior criminal 445 history record sealed or expunged in certain 446 circumstances; authorizing a person to lawfully deny 447 or fail to acknowledge the arrests and subsequent 448 dispositions of a sealed record under certain 449 circumstances; providing that a person may fail to 450 recite or acknowledge a sealed criminal history record 451 on an employment application without committing 452 certain violations; providing requirements for a 453 second sealing; providing an effective date.