Florida Senate - 2020 SB 1504
By Senator Brandes
24-01806A-20 20201504__
1 A bill to be entitled
2 An act relating to sentencing; creating s. 322.3401,
3 F.S.; providing legislative intent; defining terms;
4 requiring certain persons convicted of driving while
5 license suspended, revoked, canceled, or disqualified
6 committed before a specified date to be sentenced in a
7 specified manner in accordance with the amendments in
8 chapter 2019-167, Laws of Florida; requiring
9 resentencing for persons who committed such violations
10 before a specified date and are serving terms of
11 imprisonment; specifying the procedures for such
12 resentencing; requiring certain persons convicted of
13 driving while license suspended, revoked, canceled, or
14 disqualified to have such conviction treated as a
15 misdemeanor for specified purposes; requiring fines,
16 fees, and costs to be waived; creating s. 943.0587,
17 F.S.; defining terms; providing that persons who meet
18 specified criteria are eligible to petition a court to
19 expunge a criminal history record for convictions of
20 driving while license suspended, revoked, canceled, or
21 disqualified; requiring such persons to apply to the
22 Department of Law Enforcement for a certificate of
23 eligibly for expunction; requiring the department to
24 adopt rules; requiring the department to issue such
25 certificates if specified conditions are met;
26 providing for the timeframe during which a certificate
27 is valid; providing requirements for such petitions;
28 providing criminal penalties; providing court
29 procedures relating to a petition to expunge;
30 providing for the effects of expunction orders;
31 providing effective dates.
32
33 Be It Enacted by the Legislature of the State of Florida:
34
35 Section 1. Section 322.3401, Florida Statutes, is created
36 to read:
37 322.3401 Retroactive application relating to s. 322.34;
38 legislative intent; prohibiting certain sentences for specified
39 offenses; resentencing procedures.—
40 (1) It is the intent of the Legislature to retroactively
41 apply section 12 of chapter 2019-167, Laws of Florida, only as
42 provided in this section, to persons who committed driving while
43 license suspended, revoked, canceled, or disqualified before
44 October 1, 2019, the effective date of section 12 of chapter
45 2019-167, Laws of Florida, which amended s. 322.34 to modify
46 criminal penalties and collateral consequences for offenses
47 under that section.
48 (2) As used in this section, the term:
49 (a) “Former s. 322.34” is a reference to s. 322.34 as it
50 existed at any time before its amendment by chapter 2019-167,
51 Laws of Florida.
52 (b) “New s. 322.34” is a reference to s. 322.34 as it
53 exists after the amendments made by chapter 2019-167, Laws of
54 Florida, became effective.
55 (3)(a) A person who committed driving while license
56 suspended, revoked, canceled, or disqualified before October 1,
57 2019, but who was not sentenced under former s. 322.34 before
58 October 1, 2020, the effective date of this act, must be
59 sentenced in accordance with s. 775.082, s. 775.083, or s.
60 775.084 for the degree of offense as provided for in the new s.
61 322.34.
62 (b) A person who committed driving while license suspended,
63 revoked, canceled, or disqualified before October 1, 2019, who
64 was sentenced before October 1, 2019, to a term of imprisonment
65 pursuant to former s. 322.34, and who is serving such term of
66 imprisonment on or after October 1, 2020, must be resentenced in
67 accordance with paragraph (c). The person must be resentenced to
68 a sentence as provided in s. 775.082, s. 775.083, or s. 775.084.
69 (c) Resentencing under this section must occur in the
70 following manner:
71 1. The Department of Corrections shall notify the person
72 described in paragraph (b) of his or her eligibility to request
73 a sentence review hearing.
74 2. The person seeking sentence review under this section
75 may submit an application to the court of original jurisdiction
76 requesting that a sentence review hearing be held. The
77 sentencing court shall retain original jurisdiction for the
78 duration of the sentence for this purpose.
79 3. A person who is eligible for a sentence review hearing
80 under this section is entitled to be represented by counsel, and
81 the court shall appoint a public defender to represent the
82 person if he or she cannot afford an attorney.
83 4. Upon receiving an application from the eligible person,
84 the court of original jurisdiction shall hold a sentence review
85 hearing to determine if the eligible person meets the criteria
86 for resentencing under this section. If the court determines at
87 the sentence review hearing that the eligible person meets the
88 criteria in this section for resentencing, the court must
89 resentence the person as provided in this section; however, the
90 new sentence may not exceed the person’s original sentence with
91 credit for time served. If the court determines that such person
92 does not meet the criteria for resentencing under this section,
93 the court must provide written reasons why such person does not
94 meet such criteria.
95 (4) Notwithstanding any other law, a person who has been
96 convicted of a felony under former s. 322.34 and whose offense
97 would not be classified as a felony under the new s. 322.34,
98 must:
99 (a) Be treated as if he or she had been convicted of a
100 misdemeanor violation of s. 322.34 for purposes of any right,
101 privilege, benefit, remedy, or collateral consequence that the
102 person might be entitled to but for such felony conviction.
103 (b) Have all fines, fees, and costs related to such felony
104 conviction waived.
105 Section 2. Effective upon the same date that SB ____ or
106 similar legislation takes effect, only if such legislation is
107 adopted in the same legislative session or an extension thereof
108 and becomes a law, section 943.0587, Florida Statutes, is
109 created to read:
110 943.0587 Driving while license suspended, revoked,
111 canceled, or disqualified expunction.—
112 (1) DEFINITIONS.—As used in this section, the term:
113 (a) “Former s. 322.34” is a reference to s. 322.34 as it
114 existed at any time before its amendment by chapter 2019-167,
115 Laws of Florida.
116 (b) “New s. 322.34” is a reference to s. 322.34 as it
117 exists after the amendments made by chapter 2019-167, Laws of
118 Florida, became effective.
119 (c) “Expunction” has the same meaning ascribed in and
120 effect as s. 943.0585.
121 (2) ELIGIBILITY.—Notwithstanding any other law, a person is
122 eligible to petition a court to expunge a criminal history
123 record for a conviction under former s. 322.34 if:
124 (a) The person received a withholding of adjudication or
125 adjudication of guilt for a violation of former s. 322.34 for
126 driving while license suspended, revoked, canceled, or
127 disqualified and whose conviction would not be classified as a
128 felony under new s. 322.34; and
129 (b) The person has never been convicted of a felony other
130 than for the felony offenses of the former s. 322.34 for driving
131 while license suspended, revoked, canceled, or disqualified.
132 (3) CERTIFICATE OF ELIGIBILITY.—Before petitioning a court
133 to expunge a criminal history record under this section, a
134 person seeking to expunge a criminal history record must apply
135 to the department for a certificate of eligibility for
136 expunction. The department shall adopt rules to establish
137 procedures for applying for and issuing a certificate of
138 eligibility for expunction.
139 (a) The department shall issue a certificate of eligibility
140 for expunction to a person who is the subject of a criminal
141 history record under this section if that person:
142 1. Satisfies the eligibility criteria in subsection (2);
143 2. Has submitted to the department a written certified
144 statement from the appropriate state attorney or statewide
145 prosecutor which confirms the criminal history record complies
146 with the criteria in subsection (2);
147 3. Has submitted to the department a certified copy of the
148 disposition of the charge to which the petition to expunge
149 pertains; and
150 4. Remits a $75 processing fee to the department for
151 placement in the Department of Law Enforcement Operating Trust
152 Fund, unless the executive director waives such fee.
153 (b) A certificate of eligibility for expunction is valid
154 for 12 months after the date stamped on the certificate when
155 issued by the department. After that time, the petitioner must
156 reapply to the department for a new certificate of eligibility.
157 The petitioner’s status and the law in effect at the time of the
158 renewal application determine the petitioner’s eligibility.
159 (4) PETITION.—Each petition to expunge a criminal history
160 record must be accompanied by the following:
161 (a) A valid certificate of eligibility issued by the
162 department.
163 (b) The petitioner’s sworn statement that he or she:
164 1. Satisfies the eligibility requirements for expunction in
165 subsection (2); and
166 2. Is eligible for expunction to the best of his or her
167 knowledge.
168 (5) PENALTIES.—A person who knowingly provides false
169 information on such sworn statement commits a felony of the
170 third degree, punishable as provided in s. 775.082, s. 775.083,
171 or s. 775.084.
172 (6) COURT AUTHORITY.—
173 (a) The courts of this state have jurisdiction over their
174 own procedures, including the maintenance, expunction, and
175 correction of judicial records containing criminal history
176 information to the extent that such procedures are not
177 inconsistent with the conditions, responsibilities, and duties
178 established by this section.
179 (b) A court of competent jurisdiction shall order a
180 criminal justice agency to expunge the criminal history record
181 of a person who complies with the requirements of this section.
182 The court may not order a criminal justice agency to expunge a
183 criminal history record under this section until the person
184 seeking to expunge a criminal history record has applied for and
185 received a certificate of eligibility under subsection (3).
186 (c) Expunction granted under this section does not prevent
187 the person who receives such relief from petitioning for the
188 expunction or sealing of a later criminal history record as
189 provided for in ss. 943.0583, 943.0585, and 943.059, if the
190 person is otherwise eligible under those sections.
191 (7) PROCESSING OF A PETITION OR AN ORDER.—
192 (a) In a judicial proceeding under this section, a copy of
193 the completed petition to expunge shall be served upon the
194 appropriate state attorney or the statewide prosecutor and upon
195 the arresting agency; however, it is not necessary to make any
196 agency other than the state a party. The appropriate state
197 attorney or the statewide prosecutor and the arresting agency
198 may respond to the court regarding the completed petition to
199 expunge.
200 (b) If relief is granted by the court, the clerk of the
201 court shall certify copies of the order to the appropriate state
202 attorney or the statewide prosecutor and the arresting agency.
203 The arresting agency shall forward the order to any other agency
204 to which the arresting agency disseminated the criminal history
205 record information to which the order pertains. The department
206 shall forward the order to expunge to the Federal Bureau of
207 Investigation. The clerk of the court shall certify a copy of
208 the order to any other agency which the records of the court
209 reflect has received the criminal history record from the court.
210 (c) The department or any other criminal justice agency is
211 not required to act on an order to expunge entered by a court
212 when such order does not comply with the requirements of this
213 section. Upon receipt of such an order, the department must
214 notify the issuing court, the appropriate state attorney or
215 statewide prosecutor, the petitioner or the petitioner’s
216 attorney, and the arresting agency of the reason for
217 noncompliance. The appropriate state attorney or statewide
218 prosecutor shall take action within 60 days to correct the
219 record and petition the court to void the order. No cause of
220 action, including contempt of court, shall arise against any
221 criminal justice agency for failure to comply with an order to
222 expunge when the petitioner for such order failed to obtain the
223 certificate of eligibility as required by this section or such
224 order does not otherwise comply with the requirements of this
225 section.
226 (8) EFFECT OF EXPUNCTION ORDER.—
227 (a) The person who is the subject of a criminal history
228 record that is expunged under this section may lawfully deny or
229 fail to acknowledge the arrests and convictions covered by the
230 expunged record, except when the subject of the record:
231 1. Is a candidate for employment with a criminal justice
232 agency;
233 2. Is a defendant in a criminal prosecution;
234 3. Concurrently or subsequently petitions for relief under
235 this section, s. 943.0583, s. 943.059, or s. 943.0585;
236 4. Is a candidate for admission to The Florida Bar;
237 5. Is seeking to be employed or licensed by or to contract
238 with the Department of Children and Families, the Division of
239 Vocational Rehabilitation of the Department of Education, the
240 Agency for Health Care Administration, the Agency for Persons
241 with Disabilities, the Department of Health, the Department of
242 Elderly Affairs, or the Department of Juvenile Justice or to be
243 employed or used by such contractor or licensee in a sensitive
244 position having direct contact with children, the disabled, or
245 the elderly;
246 6. Is seeking to be employed or licensed by the Department
247 of Education, any district school board, any university
248 laboratory school, any charter school, any private or parochial
249 school, or any local governmental entity that licenses child
250 care facilities;
251 7. Is seeking to be licensed by the Division of Insurance
252 Agent and Agency Services within the Department of Financial
253 Services; or
254 8. Is seeking to be appointed as a guardian pursuant to s.
255 744.3125.
256 (b) Subject to the exceptions in paragraph (a), a person
257 who has been granted an expunction under this section may not be
258 held under any law of this state to commit perjury or to be
259 otherwise liable for giving a false statement by reason of such
260 person’s failure to recite or acknowledge an expunged criminal
261 history record.
262 Section 3. Except as otherwise expressly provided in this
263 act, this act shall take effect October 1, 2020.