Bill Text: FL S1354 | 2015 | Regular Session | Introduced


Bill Title: Expunction of Criminal History Records

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2015-05-01 - Died in Criminal Justice [S1354 Detail]

Download: Florida-2015-S1354-Introduced.html
       Florida Senate - 2015                                    SB 1354
       
       
        
       By Senator Braynon
       
       
       
       
       
       36-01054-15                                           20151354__
    1                        A bill to be entitled                      
    2         An act relating to expunction of criminal history
    3         records; creating s. 943.0595, F.S.; requiring
    4         automatic expunction of certain criminal history
    5         records upon restoration of civil rights; providing
    6         exceptions; providing procedures; providing for effect
    7         of expunction; providing for treatment of certain
    8         statutory cross-references; amending ss. 943.0582,
    9         943.0585, and 943.059, F.S.; conforming provisions to
   10         changes made by the act; providing an effective date.
   11          
   12  Be It Enacted by the Legislature of the State of Florida:
   13  
   14         Section 1. Section 943.0595, Florida Statutes, is created
   15  to read:
   16         943.0595 Automatic expunction of criminal history record on
   17  restoration of civil rights; exceptions.—
   18         (1) QUALIFICATION.—
   19         (a) Notwithstanding any law dealing generally with the
   20  preservation and destruction of public records, a criminal
   21  history record of a person who has had his or her civil rights
   22  restored under chapter 940 shall automatically be expunged upon
   23  the restoration of the person’s civil rights, unless the person
   24  was convicted of an offense listed in paragraph (b).
   25         (b) The expunction under this section is not available to a
   26  person who is:
   27         1. Classified as a violent career criminal, habitual felony
   28  offender, habitual violent felony offender, or three-time
   29  violent felony offender under s. 775.084.
   30         2. Subject to registration as a sexual predator under s.
   31  775.21.
   32         3. Subject to registration as a sexual offender under s.
   33  943.0435.
   34         (2) PROCESSING.—Upon the restoration of an offender’s civil
   35  rights, the Commission on Offender Review shall immediately
   36  inform the department of the restoration. The department shall
   37  have 30 days after its receipt of the notification to determine
   38  whether the offender is eligible for expunction under subsection
   39  (1). If the offender is eligible for expunction, the department
   40  shall immediately expunge the offender’s criminal history
   41  records. The department must, within 10 days after making the
   42  determination, inform the offender of the expunction or the
   43  reasons for its determination that the offender is ineligible
   44  for expunction.
   45         (3) EFFECT OF EXPUNCTION.—A criminal history record
   46  expunged pursuant to this section must be physically destroyed
   47  or obliterated by a criminal justice agency having custody of
   48  the record. However, a criminal history record in the custody of
   49  the department must be retained in all cases. A criminal justice
   50  agency may retain a notation indicating compliance with an
   51  expunction.
   52         (a) The person who is the subject of a criminal history
   53  record that is expunged under this section may lawfully deny or
   54  fail to acknowledge the arrests covered by the expunged record,
   55  except when the person:
   56         1. Is a candidate for employment with a criminal justice
   57  agency;
   58         2. Is a defendant in a criminal prosecution;
   59         3. Concurrently or subsequently petitions for relief under
   60  this section, s. 943.0583, s. 943.0585, or s. 943.059;
   61         4. Is a candidate for admission to The Florida Bar;
   62         5. Is seeking to be employed or licensed by or to contract
   63  with the Department of Children and Families, the Division of
   64  Vocational Rehabilitation within the Department of Education,
   65  the Agency for Health Care Administration, the Agency for
   66  Persons with Disabilities, the Department of Health, the
   67  Department of Elderly Affairs, or the Department of Juvenile
   68  Justice or to be employed or used by such a contractor or
   69  licensee in a sensitive position having direct contact with
   70  children, the disabled, or the elderly;
   71         6. Is seeking to be employed or licensed by the Department
   72  of Education or a district school board, university laboratory
   73  school, charter school, private or parochial school, or local
   74  governmental entity that licenses child care facilities;
   75         7. Is seeking to be licensed by the Division of Insurance
   76  Agent and Agency Services within the Department of Financial
   77  Services; or
   78         8. Is seeking to be appointed as a guardian pursuant to s.
   79  744.3125.
   80         (b) Subject to the exceptions in paragraph (a), a person
   81  whose record has been expunged under this section may not be
   82  held under any provision of law of this state to commit perjury
   83  or to be otherwise liable for giving a false statement by reason
   84  of such person’s failure to recite or acknowledge an expunged
   85  criminal history record.
   86         (4) SECTION NOT EXCLUSIVE.—Expunction granted under this
   87  section does not prevent the person who receives such relief
   88  from petitioning for the expunction or sealing of a criminal
   89  history record under ss. 943.0583, 943.0585, or 943.059 if the
   90  person is otherwise eligible under those sections.
   91         (5) STATUTORY REFERENCES.—Any reference to any other
   92  chapter, section, or subdivision of the Florida Statutes in this
   93  section constitutes a general reference under the doctrine of
   94  incorporation by reference.
   95         Section 2. Subsection (5) of section 943.0582, Florida
   96  Statutes, is amended to read:
   97         943.0582 Prearrest, postarrest, or teen court diversion
   98  program expunction.—
   99         (5) Expunction or sealing granted under this section does
  100  not prevent the minor who receives such relief from petitioning
  101  for the expunction or sealing of a later criminal history record
  102  as provided for in ss. 943.0583, 943.0585, and 943.059, and
  103  943.0595 if the minor is otherwise eligible under those
  104  sections.
  105         Section 3. Paragraph (b) of subsection (1), paragraph (f)
  106  of subsection (2), and paragraph (a) of subsection (4) of
  107  section 943.0585, Florida Statutes, are amended to read:
  108         943.0585 Court-ordered expunction of criminal history
  109  records.—The courts of this state have jurisdiction over their
  110  own procedures, including the maintenance, expunction, and
  111  correction of judicial records containing criminal history
  112  information to the extent such procedures are not inconsistent
  113  with the conditions, responsibilities, and duties established by
  114  this section. Any court of competent jurisdiction may order a
  115  criminal justice agency to expunge the criminal history record
  116  of a minor or an adult who complies with the requirements of
  117  this section. The court shall not order a criminal justice
  118  agency to expunge a criminal history record until the person
  119  seeking to expunge a criminal history record has applied for and
  120  received a certificate of eligibility for expunction pursuant to
  121  subsection (2) or subsection (5). A criminal history record that
  122  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
  123  chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034,
  124  s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
  125  s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in
  126  s. 907.041, or any violation specified as a predicate offense
  127  for registration as a sexual predator pursuant to s. 775.21,
  128  without regard to whether that offense alone is sufficient to
  129  require such registration, or for registration as a sexual
  130  offender pursuant to s. 943.0435, may not be expunged, without
  131  regard to whether adjudication was withheld, if the defendant
  132  was found guilty of or pled guilty or nolo contendere to the
  133  offense, or if the defendant, as a minor, was found to have
  134  committed, or pled guilty or nolo contendere to committing, the
  135  offense as a delinquent act. The court may only order expunction
  136  of a criminal history record pertaining to one arrest or one
  137  incident of alleged criminal activity, except as provided in
  138  this section. The court may, at its sole discretion, order the
  139  expunction of a criminal history record pertaining to more than
  140  one arrest if the additional arrests directly relate to the
  141  original arrest. If the court intends to order the expunction of
  142  records pertaining to such additional arrests, such intent must
  143  be specified in the order. A criminal justice agency may not
  144  expunge any record pertaining to such additional arrests if the
  145  order to expunge does not articulate the intention of the court
  146  to expunge a record pertaining to more than one arrest. This
  147  section does not prevent the court from ordering the expunction
  148  of only a portion of a criminal history record pertaining to one
  149  arrest or one incident of alleged criminal activity.
  150  Notwithstanding any law to the contrary, a criminal justice
  151  agency may comply with laws, court orders, and official requests
  152  of other jurisdictions relating to expunction, correction, or
  153  confidential handling of criminal history records or information
  154  derived therefrom. This section does not confer any right to the
  155  expunction of any criminal history record, and any request for
  156  expunction of a criminal history record may be denied at the
  157  sole discretion of the court.
  158         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  159  petition to a court to expunge a criminal history record is
  160  complete only when accompanied by:
  161         (b) The petitioner’s sworn statement attesting that the
  162  petitioner:
  163         1. Has never, prior to the date on which the petition is
  164  filed, been adjudicated guilty of a criminal offense or
  165  comparable ordinance violation, or been adjudicated delinquent
  166  for committing any felony or a misdemeanor specified in s.
  167  943.051(3)(b).
  168         2. Has not been adjudicated guilty of, or adjudicated
  169  delinquent for committing, any of the acts stemming from the
  170  arrest or alleged criminal activity to which the petition
  171  pertains.
  172         3. Has never secured a prior sealing or expunction of a
  173  criminal history record under this section, s. 943.059, s.
  174  943.0595, former s. 893.14, former s. 901.33, or former s.
  175  943.058, unless expunction is sought of a criminal history
  176  record previously sealed for 10 years pursuant to paragraph
  177  (2)(h) and the record is otherwise eligible for expunction.
  178         4. Is eligible for such an expunction to the best of his or
  179  her knowledge or belief and does not have any other petition to
  180  expunge or any petition to seal pending before any court.
  181  
  182  Any person who knowingly provides false information on such
  183  sworn statement to the court commits a felony of the third
  184  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  185  775.084.
  186         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  187  petitioning the court to expunge a criminal history record, a
  188  person seeking to expunge a criminal history record shall apply
  189  to the department for a certificate of eligibility for
  190  expunction. The department shall, by rule adopted pursuant to
  191  chapter 120, establish procedures pertaining to the application
  192  for and issuance of certificates of eligibility for expunction.
  193  A certificate of eligibility for expunction is valid for 12
  194  months after the date stamped on the certificate when issued by
  195  the department. After that time, the petitioner must reapply to
  196  the department for a new certificate of eligibility. Eligibility
  197  for a renewed certification of eligibility must be based on the
  198  status of the applicant and the law in effect at the time of the
  199  renewal application. The department shall issue a certificate of
  200  eligibility for expunction to a person who is the subject of a
  201  criminal history record if that person:
  202         (f) Has never secured a prior sealing or expunction of a
  203  criminal history record under this section, s. 943.059, s.
  204  943.0595, former s. 893.14, former s. 901.33, or former s.
  205  943.058, unless expunction is sought of a criminal history
  206  record previously sealed for 10 years pursuant to paragraph (h)
  207  and the record is otherwise eligible for expunction.
  208         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  209  criminal history record of a minor or an adult which is ordered
  210  expunged by a court of competent jurisdiction pursuant to this
  211  section must be physically destroyed or obliterated by any
  212  criminal justice agency having custody of such record; except
  213  that any criminal history record in the custody of the
  214  department must be retained in all cases. A criminal history
  215  record ordered expunged that is retained by the department is
  216  confidential and exempt from the provisions of s. 119.07(1) and
  217  s. 24(a), Art. I of the State Constitution and not available to
  218  any person or entity except upon order of a court of competent
  219  jurisdiction. A criminal justice agency may retain a notation
  220  indicating compliance with an order to expunge.
  221         (a) The person who is the subject of a criminal history
  222  record that is expunged under this section or under other
  223  provisions of law, including former s. 893.14, former s. 901.33,
  224  and former s. 943.058, may lawfully deny or fail to acknowledge
  225  the arrests covered by the expunged record, except when the
  226  subject of the record:
  227         1. Is a candidate for employment with a criminal justice
  228  agency;
  229         2. Is a defendant in a criminal prosecution;
  230         3. Concurrently or subsequently petitions for relief under
  231  this section, s. 943.0583, or s. 943.059, or s. 943.0595;
  232         4. Is a candidate for admission to The Florida Bar;
  233         5. Is seeking to be employed or licensed by or to contract
  234  with the Department of Children and Families, the Division of
  235  Vocational Rehabilitation within the Department of Education,
  236  the Agency for Health Care Administration, the Agency for
  237  Persons with Disabilities, the Department of Health, the
  238  Department of Elderly Affairs, or the Department of Juvenile
  239  Justice or to be employed or used by such contractor or licensee
  240  in a sensitive position having direct contact with children, the
  241  disabled, or the elderly;
  242         6. Is seeking to be employed or licensed by the Department
  243  of Education, any district school board, any university
  244  laboratory school, any charter school, any private or parochial
  245  school, or any local governmental entity that licenses child
  246  care facilities;
  247         7. Is seeking to be licensed by the Division of Insurance
  248  Agent and Agency Services within the Department of Financial
  249  Services; or
  250         8. Is seeking to be appointed as a guardian pursuant to s.
  251  744.3125.
  252         Section 4. Paragraph (b) of subsection (1), paragraph (e)
  253  of subsection (2), and paragraph (a) of subsection (4) of
  254  section 943.059, Florida Statutes, are amended to read:
  255         943.059 Court-ordered sealing of criminal history records.
  256  The courts of this state shall continue to have jurisdiction
  257  over their own procedures, including the maintenance, sealing,
  258  and correction of judicial records containing criminal history
  259  information to the extent such procedures are not inconsistent
  260  with the conditions, responsibilities, and duties established by
  261  this section. Any court of competent jurisdiction may order a
  262  criminal justice agency to seal the criminal history record of a
  263  minor or an adult who complies with the requirements of this
  264  section. The court shall not order a criminal justice agency to
  265  seal a criminal history record until the person seeking to seal
  266  a criminal history record has applied for and received a
  267  certificate of eligibility for sealing pursuant to subsection
  268  (2). A criminal history record that relates to a violation of s.
  269  393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03,
  270  s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071,
  271  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135,
  272  s. 916.1075, a violation enumerated in s. 907.041, or any
  273  violation specified as a predicate offense for registration as a
  274  sexual predator pursuant to s. 775.21, without regard to whether
  275  that offense alone is sufficient to require such registration,
  276  or for registration as a sexual offender pursuant to s.
  277  943.0435, may not be sealed, without regard to whether
  278  adjudication was withheld, if the defendant was found guilty of
  279  or pled guilty or nolo contendere to the offense, or if the
  280  defendant, as a minor, was found to have committed or pled
  281  guilty or nolo contendere to committing the offense as a
  282  delinquent act. The court may only order sealing of a criminal
  283  history record pertaining to one arrest or one incident of
  284  alleged criminal activity, except as provided in this section.
  285  The court may, at its sole discretion, order the sealing of a
  286  criminal history record pertaining to more than one arrest if
  287  the additional arrests directly relate to the original arrest.
  288  If the court intends to order the sealing of records pertaining
  289  to such additional arrests, such intent must be specified in the
  290  order. A criminal justice agency may not seal any record
  291  pertaining to such additional arrests if the order to seal does
  292  not articulate the intention of the court to seal records
  293  pertaining to more than one arrest. This section does not
  294  prevent the court from ordering the sealing of only a portion of
  295  a criminal history record pertaining to one arrest or one
  296  incident of alleged criminal activity. Notwithstanding any law
  297  to the contrary, a criminal justice agency may comply with laws,
  298  court orders, and official requests of other jurisdictions
  299  relating to sealing, correction, or confidential handling of
  300  criminal history records or information derived therefrom. This
  301  section does not confer any right to the sealing of any criminal
  302  history record, and any request for sealing a criminal history
  303  record may be denied at the sole discretion of the court.
  304         (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each
  305  petition to a court to seal a criminal history record is
  306  complete only when accompanied by:
  307         (b) The petitioner’s sworn statement attesting that the
  308  petitioner:
  309         1. Has never, prior to the date on which the petition is
  310  filed, been adjudicated guilty of a criminal offense or
  311  comparable ordinance violation, or been adjudicated delinquent
  312  for committing any felony or a misdemeanor specified in s.
  313  943.051(3)(b).
  314         2. Has not been adjudicated guilty of or adjudicated
  315  delinquent for committing any of the acts stemming from the
  316  arrest or alleged criminal activity to which the petition to
  317  seal pertains.
  318         3. Has never secured a prior sealing or expunction of a
  319  criminal history record under this section, s. 943.0585, s.
  320  943.0595, former s. 893.14, former s. 901.33, or former s.
  321  943.058.
  322         4. Is eligible for such a sealing to the best of his or her
  323  knowledge or belief and does not have any other petition to seal
  324  or any petition to expunge pending before any court.
  325  
  326  Any person who knowingly provides false information on such
  327  sworn statement to the court commits a felony of the third
  328  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  329  775.084.
  330         (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
  331  petitioning the court to seal a criminal history record, a
  332  person seeking to seal a criminal history record shall apply to
  333  the department for a certificate of eligibility for sealing. The
  334  department shall, by rule adopted pursuant to chapter 120,
  335  establish procedures pertaining to the application for and
  336  issuance of certificates of eligibility for sealing. A
  337  certificate of eligibility for sealing is valid for 12 months
  338  after the date stamped on the certificate when issued by the
  339  department. After that time, the petitioner must reapply to the
  340  department for a new certificate of eligibility. Eligibility for
  341  a renewed certification of eligibility must be based on the
  342  status of the applicant and the law in effect at the time of the
  343  renewal application. The department shall issue a certificate of
  344  eligibility for sealing to a person who is the subject of a
  345  criminal history record provided that such person:
  346         (e) Has never secured a prior sealing or expunction of a
  347  criminal history record under this section, s. 943.0585, s.
  348  943.0595, former s. 893.14, former s. 901.33, or former s.
  349  943.058.
  350         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  351  history record of a minor or an adult which is ordered sealed by
  352  a court pursuant to this section is confidential and exempt from
  353  the provisions of s. 119.07(1) and s. 24(a), Art. I of the State
  354  Constitution and is available only to the person who is the
  355  subject of the record, to the subject’s attorney, to criminal
  356  justice agencies for their respective criminal justice purposes,
  357  which include conducting a criminal history background check for
  358  approval of firearms purchases or transfers as authorized by
  359  state or federal law, to judges in the state courts system for
  360  the purpose of assisting them in their case-related
  361  decisionmaking responsibilities, as set forth in s. 943.053(5),
  362  or to those entities set forth in subparagraphs (a)1., 4., 5.,
  363  6., 8., 9., and 10. for their respective licensing, access
  364  authorization, and employment purposes.
  365         (a) The subject of a criminal history record sealed under
  366  this section or under other provisions of law, including former
  367  s. 893.14, former s. 901.33, and former s. 943.058, and s.
  368  943.0595 may lawfully deny or fail to acknowledge the arrests
  369  covered by the sealed record, except when the subject of the
  370  record:
  371         1. Is a candidate for employment with a criminal justice
  372  agency;
  373         2. Is a defendant in a criminal prosecution;
  374         3. Concurrently or subsequently petitions for relief under
  375  this section, s. 943.0583, or s. 943.0585;
  376         4. Is a candidate for admission to The Florida Bar;
  377         5. Is seeking to be employed or licensed by or to contract
  378  with the Department of Children and Families, the Division of
  379  Vocational Rehabilitation within the Department of Education,
  380  the Agency for Health Care Administration, the Agency for
  381  Persons with Disabilities, the Department of Health, the
  382  Department of Elderly Affairs, or the Department of Juvenile
  383  Justice or to be employed or used by such contractor or licensee
  384  in a sensitive position having direct contact with children, the
  385  disabled, or the elderly;
  386         6. Is seeking to be employed or licensed by the Department
  387  of Education, a district school board, a university laboratory
  388  school, a charter school, a private or parochial school, or a
  389  local governmental entity that licenses child care facilities;
  390         7. Is attempting to purchase a firearm from a licensed
  391  importer, licensed manufacturer, or licensed dealer and is
  392  subject to a criminal history check under state or federal law;
  393         8. Is seeking to be licensed by the Division of Insurance
  394  Agent and Agency Services within the Department of Financial
  395  Services;
  396         9. Is seeking to be appointed as a guardian pursuant to s.
  397  744.3125; or
  398         10. Is seeking to be licensed by the Bureau of License
  399  Issuance of the Division of Licensing within the Department of
  400  Agriculture and Consumer Services to carry a concealed weapon or
  401  concealed firearm. This subparagraph applies only in the
  402  determination of an applicant’s eligibility under s. 790.06.
  403         Section 5. This act shall take effect October 1, 2015.

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