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.