Florida Senate - 2011                             CS for SB 1402
       
       
       
       By the Committee on Criminal Justice; and Senator Smith
       
       
       
       
       591-04443-11                                          20111402c1
    1                        A bill to be entitled                      
    2         An act relating to criminal history records; providing
    3         a short title; amending s. 943.0585, F.S.; authorizing
    4         a court to expunge a criminal history record of a
    5         person who had a prior criminal history record sealed
    6         or expunged in certain circumstances; authorizing a
    7         person to lawfully deny or fail to acknowledge the
    8         arrests and subsequent dispositions of an expunged
    9         record under certain circumstances; providing that a
   10         person may fail to recite or acknowledge an expunged
   11         criminal history record on an employment application
   12         without committing certain violations; authorizing the
   13         Department of Law Enforcement to disclose the contents
   14         of an expunged record to the subject of the record
   15         upon the subject’s request; providing requirements for
   16         a second expunction; requiring the website of a clerk
   17         of court to include information relating to sealing
   18         and expunction procedures and a link to related
   19         information on the department’s website; amending s.
   20         943.059, F.S.; authorizing a court to seal a criminal
   21         history record of a person who had a prior criminal
   22         history record sealed or expunged in certain
   23         circumstances; authorizing a person to lawfully deny
   24         or fail to acknowledge the arrests and subsequent
   25         dispositions of a sealed record under certain
   26         circumstances; providing that a person may fail to
   27         recite or acknowledge a sealed criminal history record
   28         on an employment application without committing
   29         certain violations; providing requirements for a
   30         second sealing; providing an effective date.
   31  
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. This act may be cited as the “Jim King Keep
   35  Florida Working Act.”
   36         Section 2. Paragraph (b) of subsection (1), paragraph (f)
   37  of subsection (2), paragraph (c) of subsection (3), and
   38  subsection (4) of section 943.0585, Florida Statutes, are
   39  amended, present subsection (5) of that section is renumbered as
   40  subsection (7), and a new subsection (5) and subsection (6) are
   41  added to that section, to read:
   42         943.0585 Court-ordered expunction of criminal history
   43  records.—The courts of this state have jurisdiction over their
   44  own procedures, including the maintenance, expunction, and
   45  correction of judicial records containing criminal history
   46  information to the extent such procedures are not inconsistent
   47  with the conditions, responsibilities, and duties established by
   48  this section. Any court of competent jurisdiction may order a
   49  criminal justice agency to expunge the criminal history record
   50  of a minor or an adult who complies with the requirements of
   51  this section. The court shall not order a criminal justice
   52  agency to expunge a criminal history record until the person
   53  seeking to expunge a criminal history record has applied for and
   54  received a certificate of eligibility for expunction pursuant to
   55  subsection (2). A criminal history record that relates to a
   56  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
   57  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
   58  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
   59  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
   60  any violation specified as a predicate offense for registration
   61  as a sexual predator pursuant to s. 775.21, without regard to
   62  whether that offense alone is sufficient to require such
   63  registration, or for registration as a sexual offender pursuant
   64  to s. 943.0435, may not be expunged, without regard to whether
   65  adjudication was withheld, if the defendant was found guilty of
   66  or pled guilty or nolo contendere to the offense, or if the
   67  defendant, as a minor, was found to have committed, or pled
   68  guilty or nolo contendere to committing, the offense as a
   69  delinquent act. The court may only order expunction of a
   70  criminal history record pertaining to one arrest or one incident
   71  of alleged criminal activity, except as provided in this
   72  section. The court may, at its sole discretion, order the
   73  expunction of a criminal history record pertaining to more than
   74  one arrest if the additional arrests directly relate to the
   75  original arrest. If the court intends to order the expunction of
   76  records pertaining to such additional arrests, such intent must
   77  be specified in the order. A criminal justice agency may not
   78  expunge any record pertaining to such additional arrests if the
   79  order to expunge does not articulate the intention of the court
   80  to expunge a record pertaining to more than one arrest. This
   81  section does not prevent the court from ordering the expunction
   82  of only a portion of a criminal history record pertaining to one
   83  arrest or one incident of alleged criminal activity.
   84  Notwithstanding any law to the contrary, a criminal justice
   85  agency may comply with laws, court orders, and official requests
   86  of other jurisdictions relating to expunction, correction, or
   87  confidential handling of criminal history records or information
   88  derived therefrom. This section does not confer any right to the
   89  expunction of any criminal history record, and any request for
   90  expunction of a criminal history record may be denied at the
   91  sole discretion of the court.
   92         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
   93  petition to a court to expunge a criminal history record is
   94  complete only when accompanied by:
   95         (b) The petitioner’s sworn statement attesting that the
   96  petitioner:
   97         1. Has never, prior to the date on which the petition is
   98  filed, been adjudicated guilty of a criminal offense or
   99  comparable ordinance violation, or been adjudicated delinquent
  100  for committing any felony or a misdemeanor specified in s.
  101  943.051(3)(b).
  102         2. Has not been adjudicated guilty of, or adjudicated
  103  delinquent for committing, any of the acts stemming from the
  104  arrest or alleged criminal activity to which the petition
  105  pertains.
  106         3. Has never secured a prior sealing or expunction, except
  107  as provided in subsection (5) and s. 943.059(5), of a criminal
  108  history record under this section, former s. 893.14, former s.
  109  901.33, or former s. 943.058, or from any jurisdiction outside
  110  the state, unless expunction is sought of a criminal history
  111  record previously sealed for 10 years pursuant to paragraph
  112  (2)(h) and the record is otherwise eligible for expunction.
  113         4. Is eligible for such an expunction to the best of his or
  114  her knowledge or belief and does not have any other petition to
  115  expunge or any petition to seal pending before any court.
  116  
  117  Any person who knowingly provides false information on such
  118  sworn statement to the court commits a felony of the third
  119  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  120  775.084.
  121         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  122  petitioning the court to expunge a criminal history record, a
  123  person seeking to expunge a criminal history record shall apply
  124  to the department for a certificate of eligibility for
  125  expunction. The department shall, by rule adopted pursuant to
  126  chapter 120, establish procedures pertaining to the application
  127  for and issuance of certificates of eligibility for expunction.
  128  A certificate of eligibility for expunction is valid for 12
  129  months after the date stamped on the certificate when issued by
  130  the department. After that time, the petitioner must reapply to
  131  the department for a new certificate of eligibility. Eligibility
  132  for a renewed certification of eligibility must be based on the
  133  status of the applicant and the law in effect at the time of the
  134  renewal application. The department shall issue a certificate of
  135  eligibility for expunction to a person who is the subject of a
  136  criminal history record if that person:
  137         (f) Has never secured a prior sealing or expunction, except
  138  as provided in subsection (5) and s. 943.059(5), of a criminal
  139  history record under this section, former s. 893.14, former s.
  140  901.33, or former s. 943.058, unless expunction is sought of a
  141  criminal history record previously sealed for 10 years pursuant
  142  to paragraph (h) and the record is otherwise eligible for
  143  expunction.
  144         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  145         (c) For an order to expunge entered by a court prior to
  146  July 1, 1992, the department shall notify the appropriate state
  147  attorney or statewide prosecutor of an order to expunge which is
  148  contrary to law because the person who is the subject of the
  149  record has previously been convicted of a crime or comparable
  150  ordinance violation or has had a prior criminal history record
  151  sealed or expunged, except as provided in subsection (5) and s.
  152  943.059(5). Upon receipt of such notice, the appropriate state
  153  attorney or statewide prosecutor shall take action, within 60
  154  days, to correct the record and petition the court to void the
  155  order to expunge. The department shall seal the record until
  156  such time as the order is voided by the court.
  157         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  158  criminal history record of a minor or an adult which is ordered
  159  expunged by a court of competent jurisdiction pursuant to this
  160  section must be physically destroyed or obliterated by any
  161  criminal justice agency having custody of such record; except
  162  that any criminal history record in the custody of the
  163  department must be retained in all cases. A criminal history
  164  record ordered expunged that is retained by the department is
  165  confidential and exempt from the provisions of s. 119.07(1) and
  166  s. 24(a), Art. I of the State Constitution and not available to
  167  any person or entity except upon order of a court of competent
  168  jurisdiction. A criminal justice agency may retain a notation
  169  indicating compliance with an order to expunge.
  170         (a) The person who is the subject of a criminal history
  171  record that is expunged under this section or under other
  172  provisions of law, including former s. 893.14, former s. 901.33,
  173  and former s. 943.058, may lawfully deny or fail to acknowledge
  174  the arrests and subsequent dispositions covered by the expunged
  175  record, except when the subject of the record:
  176         1. Is a candidate for employment with a criminal justice
  177  agency;
  178         2. Is a defendant in a criminal prosecution;
  179         3. Concurrently or subsequently petitions for relief under
  180  this section or s. 943.059;
  181         4. Is a candidate for admission to The Florida Bar;
  182         5. Is seeking to be employed or licensed by or to contract
  183  with the Department of Children and Family Services, the Agency
  184  for Health Care Administration, the Agency for Persons with
  185  Disabilities, or the Department of Juvenile Justice or to be
  186  employed or used by such contractor or licensee in a sensitive
  187  position having direct contact with children, the
  188  developmentally disabled, the aged, or the elderly as provided
  189  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  190  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5),
  191  chapter 916, s. 985.644, chapter 400, or chapter 429;
  192         6. Is seeking to be employed or licensed by the Department
  193  of Education, any district school board, any university
  194  laboratory school, any charter school, any private or parochial
  195  school, or any local governmental entity that licenses child
  196  care facilities; or
  197         7. Is seeking authorization from a seaport listed in s.
  198  311.09 for employment within or access to one or more of such
  199  seaports pursuant to s. 311.12.
  200         (b) Subject to the exceptions in paragraph (a), a person
  201  who has been granted an expunction under this section, former s.
  202  893.14, former s. 901.33, or former s. 943.058 may not be held
  203  under any provision of law of this state to commit perjury or to
  204  be otherwise liable for giving a false statement by reason of
  205  such person’s failure to recite or acknowledge an expunged
  206  criminal history record, including failure to recite or
  207  acknowledge such information on an employment application.
  208         (c) Information relating to the existence of an expunged
  209  criminal history record which is provided in accordance with
  210  paragraph (a) is confidential and exempt from the provisions of
  211  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  212  except that the department shall disclose the existence of a
  213  criminal history record ordered expunged to the entities set
  214  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  215  respective licensing, access authorization, and employment
  216  purposes, and to criminal justice agencies for their respective
  217  criminal justice purposes. It is unlawful for any employee of an
  218  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  219  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  220  disclose information relating to the existence of an expunged
  221  criminal history record of a person seeking employment, access
  222  authorization, or licensure with such entity or contractor,
  223  except to the person to whom the criminal history record relates
  224  or to persons having direct responsibility for employment,
  225  access authorization, or licensure decisions. Any person who
  226  violates this paragraph commits a misdemeanor of the first
  227  degree, punishable as provided in s. 775.082 or s. 775.083.
  228         (d) The department may disclose the contents of an expunged
  229  record to the subject of the record upon receipt of a written,
  230  notarized request from the subject of the record.
  231         (5) EXPUNCTION OF CRIMINAL HISTORY RECORD AFTER PRIOR
  232  SEALING OR EXPUNCTION.—
  233         (a) A court may expunge a person’s criminal history record
  234  after a prior criminal history record has been sealed or
  235  expunged only if the person obtains a certificate from the
  236  department to expunge the criminal history record. The
  237  department may issue the certificate for a second expunction
  238  only if:
  239         1. The person has had only one prior expunction of his or
  240  her criminal history record under this section or one prior
  241  expunction following the sealing of the same arrest or alleged
  242  criminal activity that was expunged;
  243         2. The person has not been arrested in this state during
  244  the 10-year period prior to the date on which the application
  245  for the certificate is filed; and
  246         3. The person has not previously sealed or expunged a
  247  criminal history record that involved the same offense to which
  248  the petition to expunge pertains.
  249         (b) All other provisions and requirements of this section
  250  apply to an application to expunge a second criminal history
  251  record.
  252         (6) INFORMATION.—Each website for the office of a clerk of
  253  court must include information relating to procedures to seal or
  254  expunge criminal history records. This information must include
  255  a link to related information on the department’s website.
  256         Section 3. Paragraph (b) of subsection (1), paragraph (e)
  257  of subsection (2), paragraph (c) of subsection (3), and
  258  paragraphs (a) and (b) of subsection (4) of section 943.059,
  259  Florida Statutes, are amended, present subsection (5) is
  260  renumbered as subsection (6), and a new subsection (5) is added
  261  to that section, to read:
  262         943.059 Court-ordered sealing of criminal history records.
  263  The courts of this state shall continue to have jurisdiction
  264  over their own procedures, including the maintenance, sealing,
  265  and correction of judicial records containing criminal history
  266  information to the extent such procedures are not inconsistent
  267  with the conditions, responsibilities, and duties established by
  268  this section. Any court of competent jurisdiction may order a
  269  criminal justice agency to seal the criminal history record of a
  270  minor or an adult who complies with the requirements of this
  271  section. The court shall not order a criminal justice agency to
  272  seal a criminal history record until the person seeking to seal
  273  a criminal history record has applied for and received a
  274  certificate of eligibility for sealing pursuant to subsection
  275  (2). A criminal history record that relates to a violation of s.
  276  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  277  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  278  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  279  916.1075, a violation enumerated in s. 907.041, or any violation
  280  specified as a predicate offense for registration as a sexual
  281  predator pursuant to s. 775.21, without regard to whether that
  282  offense alone is sufficient to require such registration, or for
  283  registration as a sexual offender pursuant to s. 943.0435, may
  284  not be sealed, without regard to whether adjudication was
  285  withheld, if the defendant was found guilty of or pled guilty or
  286  nolo contendere to the offense, or if the defendant, as a minor,
  287  was found to have committed or pled guilty or nolo contendere to
  288  committing the offense as a delinquent act. The court may only
  289  order sealing of a criminal history record pertaining to one
  290  arrest or one incident of alleged criminal activity, except as
  291  provided in this section. The court may, at its sole discretion,
  292  order the sealing of a criminal history record pertaining to
  293  more than one arrest if the additional arrests directly relate
  294  to the original arrest. If the court intends to order the
  295  sealing of records pertaining to such additional arrests, such
  296  intent must be specified in the order. A criminal justice agency
  297  may not seal any record pertaining to such additional arrests if
  298  the order to seal does not articulate the intention of the court
  299  to seal records pertaining to more than one arrest. This section
  300  does not prevent the court from ordering the sealing of only a
  301  portion of a criminal history record pertaining to one arrest or
  302  one incident of alleged criminal activity. Notwithstanding any
  303  law to the contrary, a criminal justice agency may comply with
  304  laws, court orders, and official requests of other jurisdictions
  305  relating to sealing, correction, or confidential handling of
  306  criminal history records or information derived therefrom. This
  307  section does not confer any right to the sealing of any criminal
  308  history record, and any request for sealing a criminal history
  309  record may be denied at the sole discretion of the court.
  310         (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
  311  petition to a court to seal a criminal history record is
  312  complete only when accompanied by:
  313         (b) The petitioner’s sworn statement attesting that the
  314  petitioner:
  315         1. Has never, prior to the date on which the petition is
  316  filed, been adjudicated guilty of a criminal offense or
  317  comparable ordinance violation, or been adjudicated delinquent
  318  for committing any felony or a misdemeanor specified in s.
  319  943.051(3)(b).
  320         2. Has not been adjudicated guilty of or adjudicated
  321  delinquent for committing any of the acts stemming from the
  322  arrest or alleged criminal activity to which the petition to
  323  seal pertains.
  324         3. Has never secured a prior sealing or expunction, except
  325  as provided in subsection (5), of a criminal history record
  326  under this section, former s. 893.14, former s. 901.33, former
  327  s. 943.058, or from any jurisdiction outside the state.
  328         4. Is eligible for such a sealing to the best of his or her
  329  knowledge or belief and does not have any other petition to seal
  330  or any petition to expunge pending before any court.
  331  
  332  Any person who knowingly provides false information on such
  333  sworn statement to the court commits a felony of the third
  334  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  335  775.084.
  336         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
  337  petitioning the court to seal a criminal history record, a
  338  person seeking to seal a criminal history record shall apply to
  339  the department for a certificate of eligibility for sealing. The
  340  department shall, by rule adopted pursuant to chapter 120,
  341  establish procedures pertaining to the application for and
  342  issuance of certificates of eligibility for sealing. A
  343  certificate of eligibility for sealing is valid for 12 months
  344  after the date stamped on the certificate when issued by the
  345  department. After that time, the petitioner must reapply to the
  346  department for a new certificate of eligibility. Eligibility for
  347  a renewed certification of eligibility must be based on the
  348  status of the applicant and the law in effect at the time of the
  349  renewal application. The department shall issue a certificate of
  350  eligibility for sealing to a person who is the subject of a
  351  criminal history record provided that such person:
  352         (e) Has never secured a prior sealing or expunction, except
  353  as provided in subsection (5), of a criminal history record
  354  under this section, former s. 893.14, former s. 901.33, or
  355  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
  358  1, 1992, the department shall notify the appropriate state
  359  attorney or statewide prosecutor of any order to seal which is
  360  contrary to law because the person who is the subject of the
  361  record has previously been convicted of a crime or comparable
  362  ordinance violation or has had a prior criminal history record
  363  sealed or expunged, except as provided in subsection (5). Upon
  364  receipt of such notice, the appropriate state attorney or
  365  statewide prosecutor shall take action, within 60 days, to
  366  correct the record and petition the court to void the order to
  367  seal. The department shall seal the record until such time as
  368  the order is voided by the court.
  369         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  370  history record of a minor or an adult which is ordered sealed by
  371  a court of competent jurisdiction pursuant to this section is
  372  confidential and exempt from the provisions of s. 119.07(1) and
  373  s. 24(a), Art. I of the State Constitution and is available only
  374  to the person who is the subject of the record, to the subject’s
  375  attorney, to criminal justice agencies for their respective
  376  criminal justice purposes, which include conducting a criminal
  377  history background check for approval of firearms purchases or
  378  transfers as authorized by state or federal law, to judges in
  379  the state courts system for the purpose of assisting them in
  380  their case-related decisionmaking responsibilities, as set forth
  381  in s. 943.053(5), or to those entities set forth in
  382  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  383  licensing, access authorization, and employment purposes.
  384         (a) The subject of a criminal history record sealed under
  385  this section or under other provisions of law, including former
  386  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  387  deny or fail to acknowledge the arrests and subsequent
  388  dispositions covered by the sealed record, except when the
  389  subject of the record:
  390         1. Is a candidate for employment with a criminal justice
  391  agency;
  392         2. Is a defendant in a criminal prosecution;
  393         3. Concurrently or subsequently petitions for relief under
  394  this 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
  397  with the Department of Children and Family Services, the Agency
  398  for Health Care Administration, the Agency for Persons with
  399  Disabilities, or the Department of Juvenile Justice or to be
  400  employed or used by such contractor or licensee in a sensitive
  401  position having direct contact with children, the
  402  developmentally disabled, the aged, or the elderly as provided
  403  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  404  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), s.
  405  415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
  406         6. Is seeking to be employed or licensed by the Department
  407  of Education, any district school board, any university
  408  laboratory school, any charter school, any private or parochial
  409  school, or any local governmental entity that licenses child
  410  care facilities;
  411         7. Is attempting to purchase a firearm from a licensed
  412  importer, licensed manufacturer, or licensed dealer and is
  413  subject to a criminal history check under state or federal law;
  414  or
  415         8. Is seeking authorization from a Florida seaport
  416  identified in s. 311.09 for employment within or access to one
  417  or more of such seaports pursuant to s. 311.12.
  418         (b) Subject to the exceptions in paragraph (a), a person
  419  who has been granted a sealing under this section, former s.
  420  893.14, former s. 901.33, or former s. 943.058 may not be held
  421  under any provision of law of this state to commit perjury or to
  422  be otherwise liable for giving a false statement by reason of
  423  such person’s failure to recite or acknowledge a sealed criminal
  424  history record, including failure to recite or acknowledge such
  425  information on an employment application.
  426         (5) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING
  427  OR EXPUNCTION.—
  428         (a) A court may seal a person’s criminal history record
  429  after a prior criminal history record has been sealed or
  430  expunged only if the person obtains a certificate from the
  431  department to seal the criminal history record. The department
  432  may issue the certificate for a second sealing only if:
  433         1. The person has had only one prior expunction or sealing
  434  of his or her criminal history record under s. 943.0585 or this
  435  section or one prior expunction following the sealing of the
  436  same arrest or alleged criminal activity that was expunged;
  437         2. The person has not been arrested in this state during
  438  the 5-year period prior to the date on which the application for
  439  the certificate is filed; and
  440         3. The person has not previously sealed or expunged a
  441  criminal history record that involved the same offense to which
  442  the petition to seal pertains.
  443         (b) All other provisions and requirements of this section
  444  apply to an application to seal a second criminal history
  445  record.
  446         Section 4. This act shall take effect July 1, 2011.