Florida Senate - 2014                              CS for SB 812
       
       
        
       By the Committee on Criminal Justice; and Senator Detert
       
       
       
       
       
       591-03104-14                                           2014812c1
    1                        A bill to be entitled                      
    2         An act relating to expunction; amending s. 943.0582,
    3         F.S.; allowing minors who have certain felony arrests
    4         to have the Department of Law Enforcement expunge
    5         their nonjudicial arrest record upon successful
    6         completion of a prearrest or postarrest diversion
    7         program; extending the application submission date for
    8         minors who completed the program before a certain
    9         date; amending s. 943.0585, F.S.; revising the
   10         information that must be provided in the written
   11         statement from the state attorney or statewide
   12         prosecutor in order for a person to be eligible for a
   13         criminal history record expunction; revising when a
   14         certificate of eligibility for expunction shall be
   15         issued; authorizing the department to enter certain
   16         expunged records in specified databases; requiring the
   17         department to disclose certain expunged records to
   18         specified governmental entities; providing an
   19         effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Paragraphs (c), (e), and (f) of subsection (3)
   24  of section 943.0582, Florida Statutes, are amended, present
   25  subsection (5) of that section is redesignated as subsection
   26  (6), and a new subsection (5) is added to that section, to read:
   27         943.0582 Prearrest, postarrest, or teen court diversion
   28  program expunction.—
   29         (3) The department shall expunge the nonjudicial arrest
   30  record of a minor who has successfully completed a prearrest or
   31  postarrest diversion program if that minor:
   32         (c) Submits to the department, with the application, an
   33  official written statement from the state attorney for the
   34  county in which the arrest occurred certifying that he or she
   35  has successfully completed that county’s prearrest or postarrest
   36  diversion program, that his or her participation in the program
   37  was based on an arrest for a nonviolent misdemeanor, or for a
   38  felony that does not relate to a violation of s. 393.135, s.
   39  394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s.
   40  810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.
   41  847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a
   42  violation enumerated in s. 907.041, or any violation specified
   43  as a predicate offense for registration as a sexual predator
   44  pursuant to s. 775.21, without regard to whether that offense
   45  alone is sufficient to require such registration, or for
   46  registration as a sexual offender pursuant to s. 943.0435, and
   47  that he or she has not otherwise been charged with or found to
   48  have committed any criminal offense or comparable ordinance
   49  violation.
   50         (e) Participated in a prearrest or postarrest diversion
   51  program based on an arrest for a nonviolent misdemeanor that
   52  would not qualify as an act of domestic violence as that term is
   53  defined in s. 741.28.
   54         (e)(f) Has never, prior to filing the application for
   55  expunction, been charged with or been found to have committed
   56  any criminal offense or comparable ordinance violation.
   57         (5) In the case of a minor whose completion of the program
   58  occurred before July 1, 2014, the application for prearrest or
   59  postarrest diversion expunction must be submitted within 6
   60  months after July 1, 2014.
   61         (6)(5) Expunction or sealing granted under this section
   62  does not prevent the minor who receives such relief from
   63  petitioning for the expunction or sealing of a later criminal
   64  history record as provided for in ss. 943.0583, 943.0585, and
   65  943.059, if the minor is otherwise eligible under those
   66  sections.
   67         Section 2. Paragraphs (a) and (h) of subsection (2) and
   68  subsection (4) of section 943.0585, Florida Statutes, are
   69  amended to read:
   70         943.0585 Court-ordered expunction of criminal history
   71  records.—The courts of this state have jurisdiction over their
   72  own procedures, including the maintenance, expunction, and
   73  correction of judicial records containing criminal history
   74  information to the extent such procedures are not inconsistent
   75  with the conditions, responsibilities, and duties established by
   76  this section. Any court of competent jurisdiction may order a
   77  criminal justice agency to expunge the criminal history record
   78  of a minor or an adult who complies with the requirements of
   79  this section. The court shall not order a criminal justice
   80  agency to expunge a criminal history record until the person
   81  seeking to expunge a criminal history record has applied for and
   82  received a certificate of eligibility for expunction pursuant to
   83  subsection (2). A criminal history record that relates to a
   84  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
   85  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
   86  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
   87  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
   88  any violation specified as a predicate offense for registration
   89  as a sexual predator pursuant to s. 775.21, without regard to
   90  whether that offense alone is sufficient to require such
   91  registration, or for registration as a sexual offender pursuant
   92  to s. 943.0435, may not be expunged, without regard to whether
   93  adjudication was withheld, if the defendant was found guilty of
   94  or pled guilty or nolo contendere to the offense, or if the
   95  defendant, as a minor, was found to have committed, or pled
   96  guilty or nolo contendere to committing, the offense as a
   97  delinquent act. The court may only order expunction of a
   98  criminal history record pertaining to one arrest or one incident
   99  of alleged criminal activity, except as provided in this
  100  section. The court may, at its sole discretion, order the
  101  expunction of a criminal history record pertaining to more than
  102  one arrest if the additional arrests directly relate to the
  103  original arrest. If the court intends to order the expunction of
  104  records pertaining to such additional arrests, such intent must
  105  be specified in the order. A criminal justice agency may not
  106  expunge any record pertaining to such additional arrests if the
  107  order to expunge does not articulate the intention of the court
  108  to expunge a record pertaining to more than one arrest. This
  109  section does not prevent the court from ordering the expunction
  110  of only a portion of a criminal history record pertaining to one
  111  arrest or one incident of alleged criminal activity.
  112  Notwithstanding any law to the contrary, a criminal justice
  113  agency may comply with laws, court orders, and official requests
  114  of other jurisdictions relating to expunction, correction, or
  115  confidential handling of criminal history records or information
  116  derived therefrom. This section does not confer any right to the
  117  expunction of any criminal history record, and any request for
  118  expunction of a criminal history record may be denied at the
  119  sole discretion of the court.
  120         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  121  petitioning the court to expunge a criminal history record, a
  122  person seeking to expunge a criminal history record shall apply
  123  to the department for a certificate of eligibility for
  124  expunction. The department shall, by rule adopted pursuant to
  125  chapter 120, establish procedures pertaining to the application
  126  for and issuance of certificates of eligibility for expunction.
  127  A certificate of eligibility for expunction is valid for 12
  128  months after the date stamped on the certificate when issued by
  129  the department. After that time, the petitioner must reapply to
  130  the department for a new certificate of eligibility. Eligibility
  131  for a renewed certification of eligibility must be based on the
  132  status of the applicant and the law in effect at the time of the
  133  renewal application. The department shall issue a certificate of
  134  eligibility for expunction to a person who is the subject of a
  135  criminal history record if that person:
  136         (a) Has obtained, and submitted to the department, a
  137  written, certified statement from the appropriate state attorney
  138  or statewide prosecutor which indicates:
  139         1. That an indictment, information, or other charging
  140  document was not filed or issued in the case.
  141         2. That an indictment, information, or other charging
  142  document, if filed or issued in the case, was dismissed or nolle
  143  prossed prosequi by the state attorney or statewide prosecutor,
  144  or was dismissed by a court of competent jurisdiction, or a
  145  judge or jury rendered a verdict of not guilty. The records of a
  146  person adjudicated not guilty by reason of insanity are not
  147  eligible for expunction under this section and that none of the
  148  charges related to the arrest or alleged criminal activity to
  149  which the petition to expunge pertains resulted in a trial,
  150  without regard to whether the outcome of the trial was other
  151  than an adjudication of guilt.
  152         3. That the criminal history record does not relate to a
  153  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  154  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  155  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  156  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  157  any violation specified as a predicate offense for registration
  158  as a sexual predator pursuant to s. 775.21, without regard to
  159  whether that offense alone is sufficient to require such
  160  registration, or for registration as a sexual offender pursuant
  161  to s. 943.0435, where the defendant was found guilty of, or pled
  162  guilty or nolo contendere to any such offense, or that the
  163  defendant, as a minor, was found to have committed, or pled
  164  guilty or nolo contendere to committing, such an offense as a
  165  delinquent act, without regard to whether adjudication was
  166  withheld.
  167         (h) Has previously obtained a court order sealing the
  168  record under this section, former s. 893.14, former s. 901.33,
  169  or former s. 943.058 for a minimum of 10 years because
  170  adjudication was withheld or because all charges related to the
  171  arrest or alleged criminal activity to which the petition to
  172  expunge pertains were not dismissed prior to trial, without
  173  regard to whether the outcome of the trial was other than an
  174  adjudication of guilt. The requirement for the record to have
  175  previously been sealed for a minimum of 10 years does not apply
  176  when a plea was not entered, when or all charges related to the
  177  arrest or alleged criminal activity to which the petition to
  178  expunge pertains were dismissed prior to trial, or when a judge
  179  or jury rendered a verdict of not guilty. The records of a
  180  person adjudicated not guilty by reason of insanity are not
  181  eligible for expunction under this section.
  182         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  183  criminal history record of a minor or an adult which is ordered
  184  expunged by a court of competent jurisdiction pursuant to this
  185  section must be physically destroyed or obliterated by any
  186  criminal justice agency having custody of such record; except
  187  that any criminal history record in the custody of the
  188  department must be retained in all cases. A criminal history
  189  record ordered expunged that is retained by the department is
  190  confidential and exempt from the provisions of s. 119.07(1) and
  191  s. 24(a), Art. I of the State Constitution and not available to
  192  any person or entity except upon order of a court of competent
  193  jurisdiction. A criminal justice agency may retain a notation
  194  indicating compliance with an order to expunge. If a person is
  195  found to be incompetent to stand trial, the expunction of the
  196  criminal history record shall not prevent entry of the judgment
  197  or finding in state and national databases for use in
  198  determining eligibility to purchase or possess a firearm or to
  199  carry a concealed firearm, as authorized in s. 790.065(2)(a)4.c.
  200  and 18 U.S.C. s. 922(t), nor shall it prevent a governmental
  201  agency that is authorized by state or federal law to determine
  202  eligibility to purchase or possess a firearm or to carry a
  203  concealed firearm from accessing or using the record of the
  204  judgment or finding in the course of such agency’s official
  205  duties.
  206         (a) The person who is the subject of a criminal history
  207  record that is expunged under this section or under other
  208  provisions of law, including former s. 893.14, former s. 901.33,
  209  and former s. 943.058, may lawfully deny or fail to acknowledge
  210  the arrests covered by the expunged record, except when the
  211  subject of the record:
  212         1. Is a candidate for employment with a criminal justice
  213  agency;
  214         2. Is a defendant in a criminal prosecution;
  215         3. Concurrently or subsequently petitions for relief under
  216  this section, s. 943.0583, or s. 943.059;
  217         4. Is a candidate for admission to The Florida Bar;
  218         5. Is seeking to be employed or licensed by or to contract
  219  with the Department of Children and Families, the Division of
  220  Vocational Rehabilitation within the Department of Education,
  221  the Agency for Health Care Administration, the Agency for
  222  Persons with Disabilities, the Department of Health, the
  223  Department of Elderly Affairs, or the Department of Juvenile
  224  Justice or to be employed or used by such contractor or licensee
  225  in a sensitive position having direct contact with children, the
  226  disabled, or the elderly; or
  227         6. Is seeking to be employed or licensed by the Department
  228  of Education, any district school board, any university
  229  laboratory school, any charter school, any private or parochial
  230  school, or any local governmental entity that licenses child
  231  care facilities.
  232         (b) Subject to the exceptions in paragraph (a), a person
  233  who has been granted an expunction under this section, former s.
  234  893.14, former s. 901.33, or former s. 943.058 may not be held
  235  under any provision of law of this state to commit perjury or to
  236  be otherwise liable for giving a false statement by reason of
  237  such person’s failure to recite or acknowledge an expunged
  238  criminal history record.
  239         (c) Information relating to the existence of an expunged
  240  criminal history record which is provided in accordance with
  241  paragraph (a) is confidential and exempt from the provisions of
  242  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  243  except that the department shall disclose the existence of a
  244  criminal history record ordered expunged to the entities set
  245  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  246  respective licensing, access authorization, and employment
  247  purposes, and to criminal justice agencies for their respective
  248  criminal justice purposes, and with respect to a governmental
  249  agency that is authorized by state or federal law to determine
  250  eligibility to purchase or possess a firearm or to carry a
  251  concealed firearm, the department shall disclose the record of a
  252  finding of incompetence to stand trial for use in the course of
  253  such agency’s official duties. It is unlawful for any employee
  254  of an entity set forth in subparagraph (a)1., subparagraph
  255  (a)4., subparagraph (a)5., subparagraph (a)6., or subparagraph
  256  (a)7. to disclose information relating to the existence of an
  257  expunged criminal history record of a person seeking employment,
  258  access authorization, or licensure with such entity or
  259  contractor, except to the person to whom the criminal history
  260  record relates or to persons having direct responsibility for
  261  employment, access authorization, or licensure decisions. Any
  262  person who violates this paragraph commits a misdemeanor of the
  263  first degree, punishable as provided in s. 775.082 or s.
  264  775.083.
  265         Section 3. This act shall take effect July 1, 2014.