Florida Senate - 2012 SB 1546
By Senator Joyner
18-01007-12 20121546__
1 A bill to be entitled
2 An act relating to expunging records of civil rights
3 convictions; creating s. 943.05856, F.S.; authorizing
4 a person who is convicted of violating a certain state
5 statute or local governmental ordinance to apply for
6 expunction of the criminal history record of that
7 conviction; specifying the requirements for the
8 petition for expunction; requiring that the Department
9 of Law Enforcement establish by rule procedures
10 pertaining to the application for and issuance of
11 certificates of eligibility for expunction; providing
12 for the eligibility period of the certificate of
13 eligibility; requiring that the department issue a
14 certificate of eligibility for expunction to a person
15 who has fulfilled specific requirements; providing for
16 a processing fee for the certificate application;
17 providing procedures for judicial proceedings to grant
18 an expunction; requiring that the court serve the
19 appropriate state attorney or statewide prosecutor and
20 the arresting agency with a copy of the completed
21 petition to expunge the record of the civil rights
22 conviction; authorizing the state attorney or
23 statewide prosecutor and arresting agency to respond
24 regarding the petition to expunge; requiring that the
25 clerk of the court certify copies of the expunction
26 order to the appropriate state attorney or the
27 statewide prosecutor and the arresting agency, if
28 relief is granted by the court; requiring that the
29 arresting agency forward the order to any other agency
30 to which the arresting agency disseminated the
31 conviction record information to which the order
32 pertains; requiring that the department forward the
33 expunction order to the Federal Bureau of
34 Investigation; providing that a criminal justice
35 agency is not required to act on an expunction order
36 under certain circumstances; requiring that the
37 department notify the issuing court, the appropriate
38 state attorney or statewide prosecutor, the petitioner
39 or petitioner’s attorney, and the arresting agency if
40 an order does not comply with the act; requiring that
41 the state attorney or statewide prosecutor correct the
42 record and petition the court to void an order under
43 certain circumstances; providing an effective date.
44
45 Be It Enacted by the Legislature of the State of Florida:
46
47 Section 1. Section 943.05856, Florida Statutes, is created
48 to read:
49 943.05856 Court-ordered expunction of records of civil
50 rights convictions.—
51 (1) Notwithstanding s. 943.0585, a person convicted of
52 violating a state statute or local governmental ordinance that
53 had as its purpose to maintain racial segregation or racial
54 discrimination may apply for expunction of the criminal history
55 record of that conviction.
56 (2) Each petition to a court to expunge the record of a
57 civil rights conviction is complete only when accompanied by:
58 (a) A valid certificate of eligibility for expunction
59 issued by the department.
60 (b) The petitioner’s sworn statement attesting that the
61 petitioner:
62 1. Has never secured a prior expunction of the record of
63 the civil rights conviction.
64 2. Is eligible for such an expunction to the best of his or
65 her knowledge or belief and does not have any other petition to
66 expunge pending before the department.
67
68 A person who knowingly provides false information on the sworn
69 statement to the court commits a felony of the third degree,
70 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
71 (3)(a) Before a person may petition the court to expunge
72 the record of a civil rights conviction, the person must apply
73 to the department for a certificate of eligibility for
74 expunction. The department shall by rule establish procedures
75 pertaining to the application for and issuance of certificates
76 of eligibility for expunction.
77 (b) A certificate of eligibility for expunction is valid
78 for 12 months after the date stamped on the certificate when
79 issued by the department. After that time, the petitioner must
80 reapply to the department for a new certificate of eligibility.
81 Eligibility for a renewed certification of eligibility must be
82 based on the status of the applicant and the law in effect at
83 the time of the renewal application.
84 (c) The department shall issue a certificate of eligibility
85 for expunction to a person who is the subject of a civil rights
86 conviction if that person:
87 1. Submits to the department, a written, certified
88 statement from the appropriate state attorney or statewide
89 prosecutor which indicates whether:
90 a. An indictment, information, or other charging document
91 was filed or issued in the case.
92 b. An indictment, information, or other charging document,
93 if filed or issued in the case, was dismissed or nolle prossed
94 by the state attorney or statewide prosecutor, or was dismissed
95 by a court, and that none of the charges related to the arrest
96 or alleged civil rights conviction to which the petition to
97 expunge pertains resulted in a trial, without regard to whether
98 the outcome of the trial was other than an adjudication of
99 guilt.
100 2. Submits to the department a certified copy of the
101 disposition of the charge to which the petition to expunge
102 pertains.
103 3. Remits a $75 processing fee to the department for
104 placement in the Department of Law Enforcement Operating Trust
105 Fund, unless such fee is waived by the executive director.
106 4. Has never secured a prior expunction of the record of
107 the civil rights conviction, unless expunction is sought of a
108 record previously sealed for 10 years and the record is
109 otherwise eligible for expunction.
110 5. Has previously obtained a court order sealing the record
111 under s. 943.059 for a minimum of 10 years because adjudication
112 was withheld or because all charges related to the arrest or
113 alleged criminal activity to which the petition to expunge
114 pertains were not dismissed before trial, without regard to
115 whether the outcome of the trial was other than an adjudication
116 of guilt. The requirement for the record to have previously been
117 sealed for a minimum of 10 years does not apply if a plea was
118 not entered or all charges related to the arrest or alleged
119 criminal activity to which the petition to expunge pertains were
120 dismissed before trial.
121 (4)(a) In a proceeding under this section, a copy of the
122 completed petition to a court to expunge a record shall be
123 served upon the appropriate state attorney or the statewide
124 prosecutor and upon the arresting agency; however, it is not
125 necessary to make any agency other than the state a party. The
126 appropriate state attorney or the statewide prosecutor and the
127 arresting agency may respond regarding the completed petition to
128 expunge.
129 (b) If relief is granted by the court, the clerk of the
130 court shall certify copies of the expunction order to the
131 appropriate state attorney or the statewide prosecutor and the
132 arresting agency. The arresting agency shall forward the
133 expunction order to any other agency to which the arresting
134 agency disseminated the civil rights conviction information to
135 which the order pertains. The department shall forward the
136 expunction order to the Federal Bureau of Investigation. The
137 clerk of the court shall certify a copy of the expunction order
138 to any other agency that the records of the court reflect has
139 received a record of the civil rights conviction from the court.
140 (c) A criminal justice agency is not required to act on an
141 order to expunge entered by the court if the order does not
142 comply with the requirements of this section. Upon receipt of an
143 order that does not comply with the requirements of this
144 section, the department shall notify the issuing court, the
145 appropriate state attorney or statewide prosecutor, the
146 petitioner or the petitioner’s attorney, and the arresting
147 agency of the reason for which the department determines that
148 the order has not complied with this section. The appropriate
149 state attorney or statewide prosecutor shall take action within
150 60 days to correct the record and petition the court to void the
151 order. A cause of action, including contempt of court, does not
152 arise against any criminal justice agency for failing to comply
153 with an order to expunge if the petitioner for the order failed
154 to obtain the certificate of eligibility as required by law or
155 if the order does not otherwise comply with the requirements of
156 this section.
157 Section 2. This act shall take effect July 1, 2012.