Bill Text: FL S0812 | 2014 | Regular Session | Comm Sub
Bill Title: Expunction
Spectrum: Bipartisan Bill
Status: (Failed) 2014-05-02 - Died in Judiciary [S0812 Detail]
Download: Florida-2014-S0812-Comm_Sub.html
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 diversion51program based on an arrest for a nonviolent misdemeanor that52would not qualify as an act of domestic violence as that term is53defined 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 prossedprosequiby 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 sectionand that none of the148charges related to the arrest or alleged criminal activity to149which the petition to expunge pertains resulted in a trial,150without regard to whether the outcome of the trial was other151than 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 withheldor because all charges related to the171arrest or alleged criminal activity to which the petition to172expunge pertains were not dismissed prior to trial, without173regard to whether the outcome of the trial was other than an174adjudication 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, whenorall 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,andto 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.