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.