Florida Senate - 2020 CS for SB 1504
By the Committee on Criminal Justice; and Senators Brandes,
Rouson, and Bracy
591-03078A-20 20201504c1
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 or supervision; specifying the procedures
12 for such resentencing; requiring outstanding fines,
13 fees, and costs to be waived; requiring certain
14 persons convicted of driving while license suspended,
15 revoked, canceled, or disqualified to have such
16 conviction treated as a misdemeanor for specified
17 purposes; creating s. 943.0587, F.S.; defining terms;
18 providing that persons who meet specified criteria are
19 eligible to petition a court to expunge a criminal
20 history record for convictions of driving while
21 license suspended, revoked, canceled, or disqualified;
22 requiring such persons to apply to the Department of
23 Law Enforcement for a certificate of eligibly for
24 expunction; requiring the department to adopt rules;
25 requiring the department to issue such certificates if
26 specified conditions are met; providing for the
27 timeframe during which a certificate is valid;
28 providing requirements for such petitions; providing
29 criminal penalties; providing court procedures
30 relating to a petition to expunge; providing for the
31 effects of expunction orders; providing effective
32 dates.
33
34 Be It Enacted by the Legislature of the State of Florida:
35
36 Section 1. Section 322.3401, Florida Statutes, is created
37 to read:
38 322.3401 Retroactive application relating to s. 322.34;
39 legislative intent; prohibiting certain sentences for specified
40 offenses; resentencing procedures.—
41 (1) It is the intent of the Legislature to retroactively
42 apply section 12 of chapter 2019-167, Laws of Florida, only as
43 provided in this section, to persons who committed driving while
44 license suspended, revoked, canceled, or disqualified before
45 October 1, 2019, the effective date of section 12 of chapter
46 2019-167, Laws of Florida, which amended s. 322.34 to modify
47 criminal penalties and collateral consequences for offenses
48 under that section.
49 (2) As used in this section, the term:
50 (a) “Former s. 322.34” is a reference to s. 322.34 as it
51 existed at any time before its amendment by chapter 2019-167,
52 Laws of Florida.
53 (b) “New s. 322.34” is a reference to s. 322.34 as it
54 exists after the amendments made by chapter 2019-167, Laws of
55 Florida, became effective.
56 (3)(a) A person who committed driving while license
57 suspended, revoked, canceled, or disqualified before October 1,
58 2019, but who was not sentenced under former s. 322.34 before
59 October 1, 2020, the effective date of this act, must be
60 sentenced in accordance with s. 775.082, s. 775.083, or s.
61 775.084 for the degree of offense as provided for in the new s.
62 322.34.
63 (b) A person who committed driving while license suspended,
64 revoked, canceled, or disqualified before October 1, 2019, who
65 was sentenced before October 1, 2019, to a term of imprisonment
66 or supervision pursuant to former s. 322.34, and who is serving
67 such penalty on or after October 1, 2020, must be resentenced in
68 accordance with paragraph (c). The person must be resentenced to
69 a sentence as provided in s. 775.082, s. 775.083, or s. 775.084.
70 (c) Resentencing under this section must occur in the
71 following manner:
72 1. A person described in paragraph (b) who is eligible to
73 request a sentence review hearing pursuant to this section shall
74 be notified of such eligibility by the facility in which the
75 person is imprisoned or the entity who is supervising the
76 person.
77 2. A person seeking a sentence review hearing under this
78 section must submit an application to the court of original
79 jurisdiction requesting such hearing to be conducted. Such
80 request by the person serves to initiate the procedures provided
81 for in this section. The sentencing court shall retain original
82 jurisdiction for the duration of the sentence for this purpose.
83 3. A person who is eligible for a sentence review hearing
84 under this section is entitled to be represented by counsel, and
85 the court shall appoint a public defender to represent the
86 person if he or she cannot afford an attorney.
87 4. Upon receiving an application from the eligible person,
88 the court of original jurisdiction shall hold a sentence review
89 hearing to determine if the eligible person meets the criteria
90 for resentencing under this section. If the court determines at
91 the sentence review hearing that the eligible person meets the
92 criteria in this section for resentencing, the court must
93 resentence the person as provided in this section; however, the
94 new sentence may not exceed the person’s original sentence with
95 credit for time served. If the court determines that such person
96 does not meet the criteria for resentencing under this section,
97 the court must provide written reasons why such person does not
98 meet such criteria.
99 (4) Notwithstanding any other law, a person who has been
100 convicted of a felony under former s. 322.34 and whose offense
101 would not be classified as a felony under the new s. 322.34,
102 must have all outstanding fines, fees, and costs related to such
103 felony conviction waived. In addition, such person must be
104 treated as if he or she had been convicted of a misdemeanor
105 violation of s. 322.34 for purposes of any right, privilege,
106 benefit, remedy, or collateral consequence that the person might
107 be entitled to but for such felony conviction. This provision
108 does not serve to remove the designation of the person as a
109 convicted felon. However, the consequences of such felony
110 conviction that are solely statutory in nature and are imposed
111 as a result of such conviction shall no longer apply.
112 Section 2. Effective upon the same date that SB 1506 or
113 similar legislation takes effect, only if such legislation is
114 adopted in the same legislative session or an extension thereof
115 and becomes a law, section 943.0587, Florida Statutes, is
116 created to read:
117 943.0587 Driving while license suspended, revoked,
118 canceled, or disqualified expunction.—
119 (1) DEFINITIONS.—As used in this section, the term:
120 (a) “Former s. 322.34” is a reference to s. 322.34 as it
121 existed at any time before its amendment by chapter 2019-167,
122 Laws of Florida.
123 (b) “New s. 322.34” is a reference to s. 322.34 as it
124 exists after the amendments made by chapter 2019-167, Laws of
125 Florida, became effective.
126 (c) “Expunction” has the same meaning ascribed in and
127 effect as s. 943.0585.
128 (2) ELIGIBILITY.—Notwithstanding any other law, a person is
129 eligible to petition a court to expunge a criminal history
130 record for a conviction under former s. 322.34 if:
131 (a) The person received a withholding of adjudication or
132 adjudication of guilt for a violation of former s. 322.34 for
133 driving while license suspended, revoked, canceled, or
134 disqualified and whose conviction would not be classified as a
135 felony under new s. 322.34; and
136 (b) The person has never been convicted of a felony other
137 than for the felony offenses of the former s. 322.34 for driving
138 while license suspended, revoked, canceled, or disqualified.
139 (3) CERTIFICATE OF ELIGIBILITY.—Before petitioning a court
140 to expunge a criminal history record under this section, a
141 person seeking to expunge a criminal history record must apply
142 to the department for a certificate of eligibility for
143 expunction. The department shall adopt rules to establish
144 procedures for applying for and issuing a certificate of
145 eligibility for expunction.
146 (a) The department shall issue a certificate of eligibility
147 for expunction to a person who is the subject of a criminal
148 history record under this section if that person:
149 1. Satisfies the eligibility criteria in subsection (2);
150 2. Has submitted to the department a written certified
151 statement from the appropriate state attorney or statewide
152 prosecutor which confirms the criminal history record complies
153 with the criteria in subsection (2);
154 3. Has submitted to the department a certified copy of the
155 disposition of the charge to which the petition to expunge
156 pertains; and
157 4. Remits a $75 processing fee to the department for
158 placement in the Department of Law Enforcement Operating Trust
159 Fund, unless the executive director waives such fee.
160 (b) A certificate of eligibility for expunction is valid
161 for 12 months after the date stamped on the certificate when
162 issued by the department. After that time, the petitioner must
163 reapply to the department for a new certificate of eligibility.
164 The petitioner’s status and the law in effect at the time of the
165 renewal application determine the petitioner’s eligibility.
166 (4) PETITION.—Each petition to expunge a criminal history
167 record must be accompanied by the following:
168 (a) A valid certificate of eligibility issued by the
169 department.
170 (b) The petitioner’s sworn statement that he or she:
171 1. Satisfies the eligibility requirements for expunction in
172 subsection (2); and
173 2. Is eligible for expunction to the best of his or her
174 knowledge.
175 (5) PENALTIES.—A person who knowingly provides false
176 information on such sworn statement commits a felony of the
177 third degree, punishable as provided in s. 775.082, s. 775.083,
178 or s. 775.084.
179 (6) COURT AUTHORITY.—
180 (a) The courts of this state have jurisdiction over their
181 own procedures, including the maintenance, expunction, and
182 correction of judicial records containing criminal history
183 information to the extent that such procedures are not
184 inconsistent with the conditions, responsibilities, and duties
185 established by this section.
186 (b) A court of competent jurisdiction shall order a
187 criminal justice agency to expunge the criminal history record
188 of a person who complies with the requirements of this section.
189 The court may not order a criminal justice agency to expunge a
190 criminal history record under this section until the person
191 seeking to expunge a criminal history record has applied for and
192 received a certificate of eligibility under subsection (3).
193 (c) Expunction granted under this section does not prevent
194 the person who receives such relief from petitioning for the
195 expunction or sealing of a later criminal history record as
196 provided for in ss. 943.0583, 943.0585, and 943.059, if the
197 person is otherwise eligible under those sections.
198 (7) PROCESSING OF A PETITION OR AN ORDER.—
199 (a) In a judicial proceeding under this section, a copy of
200 the completed petition to expunge shall be served upon the
201 appropriate state attorney or the statewide prosecutor and upon
202 the arresting agency; however, it is not necessary to make any
203 agency other than the state a party. The appropriate state
204 attorney or the statewide prosecutor and the arresting agency
205 may respond to the court regarding the completed petition to
206 expunge.
207 (b) If relief is granted by the court, the clerk of the
208 court shall certify copies of the order to the appropriate state
209 attorney or the statewide prosecutor and the arresting agency.
210 The arresting agency shall forward the order to any other agency
211 to which the arresting agency disseminated the criminal history
212 record information to which the order pertains. The department
213 shall forward the order to expunge to the Federal Bureau of
214 Investigation. The clerk of the court shall certify a copy of
215 the order to any other agency which the records of the court
216 reflect has received the criminal history record from the court.
217 (c) The department or any other criminal justice agency is
218 not required to act on an order to expunge entered by a court
219 when such order does not comply with the requirements of this
220 section. Upon receipt of such an order, the department must
221 notify the issuing court, the appropriate state attorney or
222 statewide prosecutor, the petitioner or the petitioner’s
223 attorney, and the arresting agency of the reason for
224 noncompliance. The appropriate state attorney or statewide
225 prosecutor shall take action within 60 days to correct the
226 record and petition the court to void the order. No cause of
227 action, including contempt of court, shall arise against any
228 criminal justice agency for failure to comply with an order to
229 expunge when the petitioner for such order failed to obtain the
230 certificate of eligibility as required by this section or such
231 order does not otherwise comply with the requirements of this
232 section.
233 (8) EFFECT OF EXPUNCTION ORDER.—
234 (a) The person who is the subject of a criminal history
235 record that is expunged under this section may lawfully deny or
236 fail to acknowledge the arrests and convictions covered by the
237 expunged record, except when the subject of the record:
238 1. Is a candidate for employment with a criminal justice
239 agency;
240 2. Is a defendant in a criminal prosecution;
241 3. Concurrently or subsequently petitions for relief under
242 this section, s. 943.0583, s. 943.0585, or s. 943.059;
243 4. Is a candidate for admission to The Florida Bar;
244 5. Is seeking to be employed or licensed by or to contract
245 with the Department of Children and Families, the Division of
246 Vocational Rehabilitation of the Department of Education, the
247 Agency for Health Care Administration, the Agency for Persons
248 with Disabilities, the Department of Health, the Department of
249 Elderly Affairs, or the Department of Juvenile Justice or to be
250 employed or used by such contractor or licensee in a sensitive
251 position having direct contact with children, the disabled, or
252 the elderly;
253 6. Is seeking to be employed or licensed by the Department
254 of Education, any district school board, any university
255 laboratory school, any charter school, any private or parochial
256 school, or any local governmental entity that licenses child
257 care facilities;
258 7. Is seeking to be licensed by the Division of Insurance
259 Agent and Agency Services within the Department of Financial
260 Services; or
261 8. Is seeking to be appointed as a guardian pursuant to s.
262 744.3125.
263 (b) Subject to the exceptions in paragraph (a), a person
264 who has been granted an expunction under this section may not be
265 held under any law of this state to commit perjury or to be
266 otherwise liable for giving a false statement by reason of such
267 person’s failure to recite or acknowledge an expunged criminal
268 history record.
269 Section 3. Except as otherwise expressly provided in this
270 act, this act shall take effect October 1, 2020.