Bill Text: FL H1369 | 2011 | Regular Session | Comm Sub

---

Bill Title: Criminal History Records

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H1369 Detail]

Download: Florida-2011-H1369-Comm_Sub.html

---

CS/HB 1369

1	A bill to be entitled
2	An act relating to criminal history records; providing a
3	short title; amending s. 943.0585, F.S.; authorizing a
4	court to expunge a criminal history record of a person who
5	had a prior criminal history record sealed or expunged in
6	certain circumstances; authorizing a person to lawfully
7	deny or fail to acknowledge the arrests and subsequent
8	dispositions of an expunged record under certain
9	circumstances; providing that a person may fail to recite
10	or acknowledge an expunged criminal history record on an
11	employment application without committing certain
12	violations; authorizing the Department of Law Enforcement
13	to disclose the contents of an expunged record to the
14	subject of the record upon the subject's request;
15	providing requirements for a second expunction; requiring
16	the website of a clerk of court to include information
17	relating to sealing and expunction procedures and a link
18	to related information on the department's website;
19	amending s. 943.059, F.S.; authorizing a court to seal a
20	criminal history record of a person who had a prior
21	criminal history record sealed or expunged in certain
22	circumstances; authorizing a person to lawfully deny or
23	fail to acknowledge the arrests and subsequent
24	dispositions of a sealed record under certain
25	circumstances; providing that a person may fail to recite
26	or acknowledge a sealed criminal history record on an
27	employment application without committing certain
28	violations; providing requirements for a second sealing;
29	providing an effective date.
30
31	Be It Enacted by the Legislature of the State of Florida:
32
33	Section 1.  This act may be cited as the "Jim King Keep
34	Florida Working Act."
35	Section 2.  Paragraph (b) of subsection (1), paragraph (f)
36	of subsection (2), paragraph (c) of subsection (3), and
37	subsection (4) of section 943.0585, Florida Statutes, are
38	amended, subsection (5) of that section is renumbered as
39	subsection (7), and new subsections (5) and (6) are added to
40	that section, to read:
41	943.0585  Court-ordered expunction of criminal history
42	records.-The courts of this state have jurisdiction over their
43	own procedures, including the maintenance, expunction, and
44	correction of judicial records containing criminal history
45	information to the extent such procedures are not inconsistent
46	with the conditions, responsibilities, and duties established by
47	this section. Any court of competent jurisdiction may order a
48	criminal justice agency to expunge the criminal history record
49	of a minor or an adult who complies with the requirements of
50	this section. The court shall not order a criminal justice
51	agency to expunge a criminal history record until the person
52	seeking to expunge a criminal history record has applied for and
53	received a certificate of eligibility for expunction pursuant to
54	subsection (2). A criminal history record that relates to a
55	violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
56	s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
57	827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
58	893.135, s. 916.1075, a violation enumerated in s. 907.041, or
59	any violation specified as a predicate offense for registration
60	as a sexual predator pursuant to s. 775.21, without regard to
61	whether that offense alone is sufficient to require such
62	registration, or for registration as a sexual offender pursuant
63	to s. 943.0435, may not be expunged, without regard to whether
64	adjudication was withheld, if the defendant was found guilty of
65	or pled guilty or nolo contendere to the offense, or if the
66	defendant, as a minor, was found to have committed, or pled
67	guilty or nolo contendere to committing, the offense as a
68	delinquent act. The court may only order expunction of a
69	criminal history record pertaining to one arrest or one incident
70	of alleged criminal activity, except as provided in this
71	section. The court may, at its sole discretion, order the
72	expunction of a criminal history record pertaining to more than
73	one arrest if the additional arrests directly relate to the
74	original arrest. If the court intends to order the expunction of
75	records pertaining to such additional arrests, such intent must
76	be specified in the order. A criminal justice agency may not
77	expunge any record pertaining to such additional arrests if the
78	order to expunge does not articulate the intention of the court
79	to expunge a record pertaining to more than one arrest. This
80	section does not prevent the court from ordering the expunction
81	of only a portion of a criminal history record pertaining to one
82	arrest or one incident of alleged criminal activity.
83	Notwithstanding any law to the contrary, a criminal justice
84	agency may comply with laws, court orders, and official requests
85	of other jurisdictions relating to expunction, correction, or
86	confidential handling of criminal history records or information
87	derived therefrom. This section does not confer any right to the
88	expunction of any criminal history record, and any request for
89	expunction of a criminal history record may be denied at the
90	sole discretion of the court.
91	(1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each
92	petition to a court to expunge a criminal history record is
93	complete only when accompanied by:
94	(b)  The petitioner's sworn statement attesting that the
95	petitioner:
96	1.  Has never, prior to the date on which the petition is
97	filed, been adjudicated guilty of a criminal offense or
98	comparable ordinance violation, or been adjudicated delinquent
99	for committing any felony or a misdemeanor specified in s.
100	943.051(3)(b).
101	2.  Has not been adjudicated guilty of, or adjudicated
102	delinquent for committing, any of the acts stemming from the
103	arrest or alleged criminal activity to which the petition
104	pertains.
105	3.  Has never secured a prior sealing or expunction, except
106	as provided in subsection (5) and s. 943.059(5), of a criminal
107	history record under this section, former s. 893.14, former s.
108	901.33, or former s. 943.058, or from any jurisdiction outside
109	the state, unless expunction is sought of a criminal history
110	record previously sealed for 10 years pursuant to paragraph
111	(2)(h) and the record is otherwise eligible for expunction.
112	4.  Is eligible for such an expunction to the best of his
113	or her knowledge or belief and does not have any other petition
114	to expunge or any petition to seal pending before any court.
115
116	Any person who knowingly provides false information on such
117	sworn statement to the court commits a felony of the third
118	degree, punishable as provided in s. 775.082, s. 775.083, or s.
119	775.084.
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	(f)  Has never secured a prior sealing or expunction,
137	except as provided in subsection (5) and s. 943.059(5), of a
138	criminal history record under this section, former s. 893.14,
139	former s. 901.33, or former s. 943.058, unless expunction is
140	sought of a criminal history record previously sealed for 10
141	years pursuant to paragraph (h) and the record is otherwise
142	eligible for expunction.
143	(3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.-
144	(c)  For an order to expunge entered by a court prior to
145	July 1, 1992, the department shall notify the appropriate state
146	attorney or statewide prosecutor of an order to expunge which is
147	contrary to law because the person who is the subject of the
148	record has previously been convicted of a crime or comparable
149	ordinance violation or has had a prior criminal history record
150	sealed or expunged, except as provided in subsection (5) and s.
151	943.059(5). Upon receipt of such notice, the appropriate state
152	attorney or statewide prosecutor shall take action, within 60
153	days, to correct the record and petition the court to void the
154	order to expunge. The department shall seal the record until
155	such time as the order is voided by the court.
156	(4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any
157	criminal history record of a minor or an adult which is ordered
158	expunged by a court of competent jurisdiction pursuant to this
159	section must be physically destroyed or obliterated by any
160	criminal justice agency having custody of such record; except
161	that any criminal history record in the custody of the
162	department must be retained in all cases. A criminal history
163	record ordered expunged that is retained by the department is
164	confidential and exempt from the provisions of s. 119.07(1) and
165	s. 24(a), Art. I of the State Constitution and not available to
166	any person or entity except upon order of a court of competent
167	jurisdiction. A criminal justice agency may retain a notation
168	indicating compliance with an order to expunge.
169	(a)  The person who is the subject of a criminal history
170	record that is expunged under this section or under other
171	provisions of law, including former s. 893.14, former s. 901.33,
172	and former s. 943.058, may lawfully deny or fail to acknowledge
173	the arrests and subsequent dispositions covered by the expunged
174	record, except when the subject of the record:
175	1.  Is a candidate for employment with a criminal justice
176	agency;
177	2.  Is a defendant in a criminal prosecution;
178	3.  Concurrently or subsequently petitions for relief under
179	this section or s. 943.059;
180	4.  Is a candidate for admission to The Florida Bar;
181	5.  Is seeking to be employed or licensed by or to contract
182	with the Department of Children and Family Services, the Agency
183	for Health Care Administration, the Agency for Persons with
184	Disabilities, or the Department of Juvenile Justice or to be
185	employed or used by such contractor or licensee in a sensitive
186	position having direct contact with children, the
187	developmentally disabled, the aged, or the elderly as provided
188	in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
189	402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5),
190	chapter 916, s. 985.644, chapter 400, or chapter 429;
191	6.  Is seeking to be employed or licensed by the Department
192	of Education, any district school board, any university
193	laboratory school, any charter school, any private or parochial
194	school, or any local governmental entity that licenses child
195	care facilities; or
196	7.  Is seeking authorization from a seaport listed in s.
197	311.09 for employment within or access to one or more of such
198	seaports pursuant to s. 311.12.
199	(b)  Subject to the exceptions in paragraph (a), a person
200	who has been granted an expunction under this section, former s.
201	893.14, former s. 901.33, or former s. 943.058 may not be held
202	under any provision of law of this state to commit perjury or to
203	be otherwise liable for giving a false statement by reason of
204	such person's failure to recite or acknowledge an expunged
205	criminal history record, including failure to recite or
206	acknowledge such information on an employment application.
207	(c)  Information relating to the existence of an expunged
208	criminal history record which is provided in accordance with
209	paragraph (a) is confidential and exempt from the provisions of
210	s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
211	except that the department shall disclose the existence of a
212	criminal history record ordered expunged to the entities set
213	forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
214	respective licensing, access authorization, and employment
215	purposes, and to criminal justice agencies for their respective
216	criminal justice purposes. It is unlawful for any employee of an
217	entity set forth in subparagraph (a)1., subparagraph (a)4.,
218	subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
219	disclose information relating to the existence of an expunged
220	criminal history record of a person seeking employment, access
221	authorization, or licensure with such entity or contractor,
222	except to the person to whom the criminal history record relates
223	or to persons having direct responsibility for employment,
224	access authorization, or licensure decisions. Any person who
225	violates this paragraph commits a misdemeanor of the first
226	degree, punishable as provided in s. 775.082 or s. 775.083.
227	(d)  The department may disclose the contents of an
228	expunged record to the subject of the record upon the receipt of
229	a written, notarized request from the subject of the record.
230	(5)  EXPUNCTION OF CRIMINAL HISTORY RECORD AFTER PRIOR
231	SEALING OR EXPUNCTION.-
232	(a)  A court may expunge a person's criminal history record
233	after a prior criminal history record has been sealed or
234	expunged only if the person obtains a certificate from the
235	department to expunge the criminal history record. The
236	department may issue the certificate for a second expunction
237	only if:
238	1.  The person has had only one prior expunction of his or
239	her criminal history record under this section or one prior
240	expunction following the sealing of the same arrest or alleged
241	criminal activity that was expunged;
242	2.  The person has not been arrested in this state during
243	the 10-year period prior to the date on which the application
244	for the certificate is filed; and
245	3.  The person has not previously sealed or expunged a
246	criminal history record that involved the same offense to which
247	the petition to expunge pertains.
248	(b)  All other provisions and requirements of this section
249	apply to an application to expunge a second criminal history
250	record.
251	(6)  INFORMATION.-Each website for the office of a clerk of
252	court must include information relating to procedures to seal or
253	expunge criminal history records. This information must include
254	a link to related information on the department's website.
255	Section 3.  Paragraph (b) of subsection (1), paragraph (e)
256	of subsection (2), paragraph (c) of subsection (3), and
257	paragraphs (a) and (b) of subsection (4) of section 943.059,
258	Florida Statutes, are amended, subsection (5) is renumbered as
259	subsection (6), and a new subsection (5) is added to that
260	section, to read:
261	943.059  Court-ordered sealing of criminal history
262	records.-The courts of this state shall continue to have
263	jurisdiction over their own procedures, including the
264	maintenance, sealing, and correction of judicial records
265	containing criminal history information to the extent such
266	procedures are not inconsistent with the conditions,
267	responsibilities, and duties established by this section. Any
268	court of competent jurisdiction may order a criminal justice
269	agency to seal the criminal history record of a minor or an
270	adult who complies with the requirements of this section. The
271	court shall not order a criminal justice agency to seal a
272	criminal history record until the person seeking to seal a
273	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
329	her knowledge or belief and does not have any other petition to
330	seal 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,
353	except as provided in subsection (5), of a criminal history
354	record under this section, former s. 893.14, former s. 901.33,
355	or 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.

CODING: Words stricken are deletions; words underlined are additions.