Bill Text: FL S1882 | 2018 | Regular Session | Introduced
Bill Title: Determining Bail
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2018-03-10 - Died in Judiciary [S1882 Detail]
Download: Florida-2018-S1882-Introduced.html
Florida Senate - 2018 SB 1882 By Senator Rodriguez 37-00136B-18 20181882__ 1 A bill to be entitled 2 An act relating to determining bail; amending s. 3 903.046, F.S.; specifying the purpose of a bail 4 determination; creating a presumption for the release 5 of arrested individuals while they await trial; 6 requiring the release of individuals on their own 7 recognizance if they do not pose a substantial risk of 8 flight or harm to the community; authorizing a court 9 to impose reasonable nonmonetary bail conditions for 10 pretrial release; requiring a court to consider 11 certain factors and follow specific guidelines when 12 determining whether to release a defendant on 13 nonmonetary conditions; amending s. 907.041, F.S.; 14 revising legislative intent; deleting provisions 15 relating to a prohibition of release on nonmonetary 16 conditions under certain supervision; prohibiting a 17 court from granting pretrial release for a person 18 charged with a dangerous crime under certain 19 circumstances; revising the list of offenses that are 20 defined as dangerous crimes; deleting provisions 21 relating to certain offenses committed by a defendant 22 for which a court is authorized to order pretrial 23 detention after a court’s review; specifying that a 24 state attorney must show the need for pretrial 25 detention by a certain standard of evidence; requiring 26 a court to make certain written findings and 27 conclusions in a pretrial detention order; deleting a 28 provision relating to a legislative finding; deleting 29 a provision requiring a court to order pretrial 30 detention under certain circumstances if the court 31 makes certain findings; amending s. 790.065, F.S.; 32 conforming a cross-reference; reenacting ss. 943.0585 33 and 943.059, F.S., relating to court-ordered 34 expunction of criminal history records and court 35 ordered sealing of criminal history records, 36 respectively, to incorporate the amendment made to s. 37 907.041, F.S., in references thereto; providing an 38 effective date. 39 40 Be It Enacted by the Legislature of the State of Florida: 41 42 Section 1. Section 903.046, Florida Statutes, is amended to 43 read: 44 903.046 Nonmonetary bail determinations and pretrial 45 releasePurpose of and criteria for bail determination.— 46 (1) The purpose of a nonmonetary bail determination in 47 criminal proceedings is to ensure the appearance of the criminal 48 defendant at subsequent proceedings and to protect the community 49 against the risk of danger from the criminal defendant. 50 (2) An individual is presumed innocent until proven guilty, 51 and thus, there is a presumption that an individual arrested for 52 allegedly committing a crime will be released while he or she 53 awaits trial. 54 (3) An individual who does not pose a substantial risk of 55 flight or harm to the community must be released on his or her 56 own recognizance. 57 (4) Additionally, a court may impose only reasonable 58 nonmonetary bail conditions on a defendant’s pretrial release, 59 as monetary bail creates a system where indigent persons are 60 confined to jail simply because they cannot afford bail and 61 wealthier individuals are able to remain in the community simply 62 because they have access to sufficient funds. The right to be 63 free from confinement should not be determined based on an 64 individual’s financial ability to post bailThe purpose of a65bail determination in criminal proceedings is to ensure the66appearance of the criminal defendant at subsequent proceedings67and to protect the community against unreasonable danger from68the criminal defendant. 69 (5)(2)When determining whether to release a defendant on 70 nonmonetarybail or otherconditions, and whatthat bail or71 those conditions may be, the court shallconsider: 72 (a) Consider the nature and circumstances of the offense 73 charged. 74 (b) Consider the weight of the evidence against the 75 defendant. 76 (c) Consider the defendant’s family ties, length of 77 residence in the community, employment history, financial 78 resources, and mental condition. 79 (d) Consider the defendant’s past and present conduct, 80 including any record of convictions, previous flight to avoid 81 prosecution, or failure to appear at court proceedings.However,82any defendant who had failed to appear on the day of any83required court proceeding in the case at issue, but who had84later voluntarily appeared or surrendered, shall not be eligible85for a recognizance bond; and any defendant who failed to appear86on the day of any required court proceeding in the case at issue87and who was later arrested shall not be eligible for a88recognizance bond or for any form of bond which does not require89a monetary undertaking or commitment equal to or greater than90$2,000 or twice the value of the monetary commitment or91undertaking of the original bond, whichever is greater.92 Notwithstanding anything in this section, the court has 93 discretion in determining conditions of release if the defendant 94 proves that circumstances beyond his or her controlforresulted 95 in the failure to appear.This section may not be construed as96imposing additional duties or obligations on a governmental97entity related to monetary bonds.98 (e) Consider the nature and probability of danger which the 99 defendant’s release poses to the community. 100 (f)The source of funds used to post bail or procure an101appearance bond, particularly whether the proffered funds, real102property, property, or any proposed collateral or bond premium103may be linked to or derived from the crime alleged to have been104committed or from any other criminal or illicit activities. The105burden of establishing the noninvolvement in or nonderivation106from criminal or other illicit activity of such proffered funds,107real property, property, or any proposed collateral or bond108premium falls upon the defendant or other person proffering them109to obtain the defendant’s release.110(g)Consider whether the defendant is already on release 111 pending resolution of another criminal proceeding or on 112 probation, parole, or other release pending completion of a 113 sentence. 114(h) The street value of any drug or controlled substance115connected to or involved in the criminal charge. It is the116finding and intent of the Legislature that crimes involving117drugs and other controlled substances are of serious social118concern, that the flight of defendants to avoid prosecution is119of similar serious social concern, and that frequently such120defendants are able to post monetary bail using the proceeds of121their unlawful enterprises to defeat the social utility of122pretrial bail. Therefore, the courts should carefully consider123the utility and necessity of substantial bail in relation to the124street value of the drugs or controlled substances involved.125 (g)(i)Consider the nature and probability of intimidation 126 and danger to victims. 127 (h)(j)Consider whether there is probable cause to believe 128 that the defendant committed a new crime while on pretrial 129 release. 130 (i)(k)Consider any other facts that the court considers 131 relevant. 132 (j)(l)Consider whether the crime charged is a violation of 133 chapter 874 or alleged to be subject to enhanced punishment 134 under chapter 874 or reclassification under s. 843.22. If any 135 such violation is charged against a defendant or if the 136 defendant is charged with a crime that is alleged to be subject 137 to such enhancement or reclassification, he or she is not 138 eligible for release on bail or surety bond until the first 139 appearance on the case in order to ensure the full participation 140 of the prosecutor and the protection of the public. 141 (k)(m)Consider whether the defendant, other than a 142 defendant whose only criminal charge is a misdemeanor offense 143 under chapter 316, is required to register as a sexual offender 144 under s. 943.0435 or a sexual predator under s. 775.21; and, if 145 so, he or she is not eligible for release on bail or surety bond 146 until the first appearance on the case in order to ensure the 147 full participation of the prosecutor and the protection of the 148 public. 149 (l) Impose the least restrictive conditions or combination 150 of conditions necessary to reasonably assure the appearance of 151 the accused, the safety of any person or the community, and the 152 integrity of judicial proceedings. 153 Section 2. Subsections (1) and (3) and paragraphs (a), (b), 154 (c), (g), (i), and (l) of subsection (4) of section 907.041, 155 Florida Statutes, are amended to read: 156 907.041 Pretrial detention and release.— 157 (1) LEGISLATIVE INTENT.—It is the policy of this state that 158 persons who posecommitting serious criminal offenses,posinga 159 threat to the safety of the community which cannot be 160 sufficiently mitigated by nonmonetary conditions of releaseor161the integrity of the judicial process, or failing to appear at162trialbe detainedupon arrest. In contrastHowever, persons not 163 posing a threat to the safety of the communityfound to meet164specified criteriashall be released untilunder certain165conditions until proceedings are concluded andadjudication has 166 been determined. The Legislature finds that this policy of 167 pretrial detention and release will assure the detention of 168 those persons posing a threat to society while reducing the 169 costs for incarceration by releasing,until trial,those persons 170 not considered a danger to the communitywho meet certain171criteria. It is the intent of the Legislature that the primary 172 consideration for detaining an individual is whether the 173 individual presents abe the protection of the community from174 risk of physical harm to persons. 175 (3) RELEASE ON NONMONETARY CONDITIONS.— 176(a)It is the intent of the Legislature that individuals 177 arrested for a crime who do not pose a threat to the safety of 178 the community shall be releasedto create a presumption in favor179of releaseon nonmonetary conditions while they await trialfor180any person who is granted pretrial release unless such person is181charged with a dangerous crime as defined in subsection (4). 182Such person shall be released on monetary conditions if it is183determined that such monetary conditions are necessary to assure184the presence of the person at trial or at other proceedings, to185protect the community from risk of physical harm to persons, to186assure the presence of the accused at trial, or to assure the187integrity of the judicial process.188(b) No person shall be released on nonmonetary conditions189under the supervision of a pretrial release service, unless the190service certifies to the court that it has investigated or191otherwise verified:1921. The circumstances of the accused’s family, employment,193financial resources, character, mental condition, and length of194residence in the community;1952. The accused’s record of convictions, of appearances at196court proceedings, of flight to avoid prosecution, or of failure197to appear at court proceedings; and1983. Other facts necessary to assist the court in its199determination of the indigency of the accused and whether she or200he should be released under the supervision of the service.201 (4) PRETRIAL DETENTION.— 202 (a) A person charged with a dangerous crime, as defined in 203 paragraph (b), may not be granted pretrial release at a first 204 appearance hearing; however, the court may release the accused 205 person on electronic monitoring or on recognizance bond if the 206 findings on the record of facts and circumstances warrant such a 207 release. 208 (b) As used in this subsection, “dangerous crime” means any 209 of the following: 210 1.Arson;2112.Aggravated assault with a deadly weapon; 212 2.3.Aggravated battery; 2134. Illegal use of explosives;214 3.5.Child abuse or aggravated child abuse; 215 4.6.Abuse of an elderly person or disabled adult, or216 Aggravated abuse of an elderly person or a disabled adult; 217 5.7.Aircraft piracy; 218 6.8.Kidnapping; 219 7.9.Homicide; 220 8.10.Manslaughter; 221 9.11.Sexual battery; 222 10.12.Armed robbery; 223 11.13.Carjacking; 224 12.14.Lewd, lascivious, or indecent assault or act upon or 225 in presence of a child under the age of 16 years; 226 13.15.Sexual activity with a child, who is 12 years of age 227 or older but less than 18 years of age, by or at solicitation of 228 a person in familial or custodial authority; 229 14.16.Armed burglary of an occupiedadwelling, structure, 230 or conveyance; 231 15.17.Stalking and aggravated stalking; 232 16.18.An act of domestic violence as defined in s. 741.28; 233 17.19.Home invasion robbery; 234 18.20.An act of terrorism as defined in s. 775.30; and 23521. Manufacturing any substances in violation of chapter236893;23722. Attempting or conspiring to commit any such crime; and238 19.23.Human trafficking. 239(b) No person charged with a dangerous crime shall be240granted nonmonetary pretrial release at a first appearance241hearing; however, the court shall retain the discretion to242release an accused on electronic monitoring or on recognizance243bond if the findings on the record of facts and circumstances244warrant such a release.245 (c) The court may order pretrial detention if it finds a 246 substantial probability, based on a defendant’s past and present 247 patterns of behavior, the criteria in s. 903.046, and any other 248 relevant facts, that any of the following circumstances exist: 249 1. The defendant has previously violated conditions of 250 release and that no further conditions of release are reasonably 251 likely to assure the defendant’s appearance at subsequent 252 proceedings; 253 2. The defendant, with the intent to obstruct the judicial 254 process, has threatened, intimidated, or injured any victim, 255 potential witness, juror, or judicial officer, or has attempted 256 or conspired to do so, and that no condition of release will 257 reasonably prevent the obstruction of the judicial process; 2583. The defendant is charged with trafficking in controlled259substances as defined by s. 893.135, that there is a substantial260probability that the defendant has committed the offense, and261that no conditions of release will reasonably assure the262defendant’s appearance at subsequent criminal proceedings;2634. The defendant is charged with DUI manslaughter, as264defined by s. 316.193, and that there is a substantial265probability that the defendant committed the crime and that the266defendant poses a threat of harm to the community; conditions267that would support a finding by the court pursuant to this268subparagraph that the defendant poses a threat of harm to the269community include, but are not limited to, any of the following:270a. The defendant has previously been convicted of any crime271under s. 316.193, or of any crime in any other state or272territory of the United States that is substantially similar to273any crime under s. 316.193;274b. The defendant was driving with a suspended driver275license when the charged crime was committed; or276c. The defendant has previously been found guilty of, or277has had adjudication of guilt withheld for, driving while the278defendant’s driver license was suspended or revoked in violation279of s. 322.34;280 3.5.The defendant poses the threat of harm to the 281 community. The court may so conclude, if it finds that the 282 defendant is presently charged with a dangerous crime as defined 283 in paragraph (b), that there is a substantial probability that 284 the defendant committed thesuchcrime, that the factual 285 circumstances of the crime indicate a disregard for the safety 286 of the community, and that there are no conditions of release 287 reasonably sufficient to protect the community from the risk of 288 physical harm to persons; 289 4.6.The defendant was on probation, parole, or other 290 release pending completion of sentence or on pretrial release 291 for a dangerous crime at the time the current offense was 292 committed; 293 5.7.The defendant has violated one or more conditions of 294 pretrial release or bond for the offense currently before the 295 court and the violation, in the discretion of the court, 296 supports a finding that no conditions of release can reasonably 297 protect the community from risk of physical harm to persons or 298 assure the presence of the accused at trial; or 299 6.a.8.a.The defendant has ever been sentenced pursuant to 300 s. 775.082(9) or s. 775.084 as a prison releasee reoffender, 301 habitual violent felony offender, three-time violent felony 302 offender, or violent career criminal, or the state attorney 303 files a notice seeking that the defendant be sentenced pursuant 304 to s. 775.082(9) or s. 775.084, as a prison releasee reoffender, 305 habitual violent felony offender, three-time violent felony 306 offender, or violent career criminal; 307 b. There is a substantial probability that the defendant 308 committed the offense; and 309 c. There are no conditions of release that can reasonably 310 protect the community from risk of physical harm or ensure the 311 presence of the accused at trial. 312 (g) The state attorney has the burden of showing the need 313 for pretrial detention by clear and convincing evidence. 314 (i) The pretrial detention order of the court shall be 315 based solely upon evidence produced at the hearing and shall 316 contain written findings of fact and conclusions of law to 317 support it.The order shall be made either in writing or orally318on the record.The court shall render its findings within 24 319 hours afterofthe pretrial detention hearing. 320(l) The Legislature finds that a person who manufactures321any substances in violation of chapter 893 poses a threat of322harm to the community and that the factual circumstances of such323a crime indicate a disregard for the safety of the community.324The court shall order pretrial detention if the court finds that325there is a substantial probability that a defendant charged with326manufacturing any substances in violation of chapter 893327committed such a crime and if the court finds that there are no328conditions of release reasonably sufficient to protect the329community from the risk of physical harm to persons.330 Section 3. Paragraph (c) of subsection (2) of section 331 790.065, Florida Statutes, is amended to read: 332 790.065 Sale and delivery of firearms.— 333 (2) Upon receipt of a request for a criminal history record 334 check, the Department of Law Enforcement shall, during the 335 licensee’s call or by return call, forthwith: 336 (c)1. Review any records available to it to determine 337 whether the potential buyer or transferee has been indicted or 338 has had an information filed against her or him for an offense 339 that is a felony under either state or federal law, or, as 340 mandated by federal law, has had an injunction for protection 341 against domestic violence entered against the potential buyer or 342 transferee under s. 741.30, has had an injunction for protection 343 against repeat violence entered against the potential buyer or 344 transferee under s. 784.046, or has been arrested for a 345 dangerous crime as specified in s. 907.041(4)(b)s.346907.041(4)(a)or for any of the following enumerated offenses: 347 a. Criminal anarchy under ss. 876.01 and 876.02. 348 b. Extortion under s. 836.05. 349 c. Explosives violations under s. 552.22(1) and (2). 350 d. Controlled substances violations under chapter 893. 351 e. Resisting an officer with violence under s. 843.01. 352 f. Weapons and firearms violations under this chapter. 353 g. Treason under s. 876.32. 354 h. Assisting self-murder under s. 782.08. 355 i. Sabotage under s. 876.38. 356 j. Stalking or aggravated stalking under s. 784.048. 357 358 If the review indicates any such indictment, information, or 359 arrest, the department shall provide to the licensee a 360 conditional nonapproval number. 361 2. Within 24 working hours, the department shall determine 362 the disposition of the indictment, information, or arrest and 363 inform the licensee as to whether the potential buyer is 364 prohibited from receiving or possessing a firearm. For purposes 365 of this paragraph, “working hours” means the hours from 8 a.m. 366 to 5 p.m. Monday through Friday, excluding legal holidays. 367 3. The office of the clerk of court, at no charge to the 368 department, shall respond to any department request for data on 369 the disposition of the indictment, information, or arrest as 370 soon as possible, but in no event later than 8 working hours. 371 4. The department shall determine as quickly as possible 372 within the allotted time period whether the potential buyer is 373 prohibited from receiving or possessing a firearm. 374 5. If the potential buyer is not so prohibited, or if the 375 department cannot determine the disposition information within 376 the allotted time period, the department shall provide the 377 licensee with a conditional approval number. 378 6. If the buyer is so prohibited, the conditional 379 nonapproval number shall become a nonapproval number. 380 7. The department shall continue its attempts to obtain the 381 disposition information and may retain a record of all approval 382 numbers granted without sufficient disposition information. If 383 the department later obtains disposition information which 384 indicates: 385 a. That the potential buyer is not prohibited from owning a 386 firearm, it shall treat the record of the transaction in 387 accordance with this section; or 388 b. That the potential buyer is prohibited from owning a 389 firearm, it shall immediately revoke the conditional approval 390 number and notify local law enforcement. 391 8. During the time that disposition of the indictment, 392 information, or arrest is pending and until the department is 393 notified by the potential buyer that there has been a final 394 disposition of the indictment, information, or arrest, the 395 conditional nonapproval number shall remain in effect. 396 Section 4. For the purpose of incorporating the amendment 397 made by this act to section 907.041, Florida Statutes, in a 398 reference thereto, section 943.0585, Florida Statutes, is 399 reenacted to read: 400 943.0585 Court-ordered expunction of criminal history 401 records.—The courts of this state have jurisdiction over their 402 own procedures, including the maintenance, expunction, and 403 correction of judicial records containing criminal history 404 information to the extent such procedures are not inconsistent 405 with the conditions, responsibilities, and duties established by 406 this section. Any court of competent jurisdiction may order a 407 criminal justice agency to expunge the criminal history record 408 of a minor or an adult who complies with the requirements of 409 this section. The court shall not order a criminal justice 410 agency to expunge a criminal history record until the person 411 seeking to expunge a criminal history record has applied for and 412 received a certificate of eligibility for expunction pursuant to 413 subsection (2) or subsection (5). A criminal history record that 414 relates to a violation of s. 393.135, s. 394.4593, s. 787.025, 415 chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, 416 s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, 417 s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in 418 s. 907.041, or any violation specified as a predicate offense 419 for registration as a sexual predator pursuant to s. 775.21, 420 without regard to whether that offense alone is sufficient to 421 require such registration, or for registration as a sexual 422 offender pursuant to s. 943.0435, may not be expunged, without 423 regard to whether adjudication was withheld, if the defendant 424 was found guilty of or pled guilty or nolo contendere to the 425 offense, or if the defendant, as a minor, was found to have 426 committed, or pled guilty or nolo contendere to committing, the 427 offense as a delinquent act. The court may only order expunction 428 of a criminal history record pertaining to one arrest or one 429 incident of alleged criminal activity, except as provided in 430 this section. The court may, at its sole discretion, order the 431 expunction of a criminal history record pertaining to more than 432 one arrest if the additional arrests directly relate to the 433 original arrest. If the court intends to order the expunction of 434 records pertaining to such additional arrests, such intent must 435 be specified in the order. A criminal justice agency may not 436 expunge any record pertaining to such additional arrests if the 437 order to expunge does not articulate the intention of the court 438 to expunge a record pertaining to more than one arrest. This 439 section does not prevent the court from ordering the expunction 440 of only a portion of a criminal history record pertaining to one 441 arrest or one incident of alleged criminal activity. 442 Notwithstanding any law to the contrary, a criminal justice 443 agency may comply with laws, court orders, and official requests 444 of other jurisdictions relating to expunction, correction, or 445 confidential handling of criminal history records or information 446 derived therefrom. This section does not confer any right to the 447 expunction of any criminal history record, and any request for 448 expunction of a criminal history record may be denied at the 449 sole discretion of the court. 450 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each 451 petition to a court to expunge a criminal history record is 452 complete only when accompanied by: 453 (a) A valid certificate of eligibility for expunction 454 issued by the department pursuant to subsection (2). 455 (b) The petitioner’s sworn statement attesting that the 456 petitioner: 457 1. Has never, prior to the date on which the petition is 458 filed, been adjudicated guilty of a criminal offense or 459 comparable ordinance violation, or been adjudicated delinquent 460 for committing any felony or a misdemeanor specified in s. 461 943.051(3)(b). 462 2. Has not been adjudicated guilty of, or adjudicated 463 delinquent for committing, any of the acts stemming from the 464 arrest or alleged criminal activity to which the petition 465 pertains. 466 3. Has never secured a prior sealing or expunction of a 467 criminal history record under this section, s. 943.059, former 468 s. 893.14, former s. 901.33, or former s. 943.058, unless 469 expunction is sought of a criminal history record previously 470 sealed for 10 years pursuant to paragraph (2)(h) and the record 471 is otherwise eligible for expunction. 472 4. Is eligible for such an expunction to the best of his or 473 her knowledge or belief and does not have any other petition to 474 expunge or any petition to seal pending before any court. 475 476 Any person who knowingly provides false information on such 477 sworn statement to the court commits a felony of the third 478 degree, punishable as provided in s. 775.082, s. 775.083, or s. 479 775.084. 480 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to 481 petitioning the court to expunge a criminal history record, a 482 person seeking to expunge a criminal history record shall apply 483 to the department for a certificate of eligibility for 484 expunction. The department shall, by rule adopted pursuant to 485 chapter 120, establish procedures pertaining to the application 486 for and issuance of certificates of eligibility for expunction. 487 A certificate of eligibility for expunction is valid for 12 488 months after the date stamped on the certificate when issued by 489 the department. After that time, the petitioner must reapply to 490 the department for a new certificate of eligibility. Eligibility 491 for a renewed certification of eligibility must be based on the 492 status of the applicant and the law in effect at the time of the 493 renewal application. The department shall issue a certificate of 494 eligibility for expunction to a person who is the subject of a 495 criminal history record if that person: 496 (a) Has obtained, and submitted to the department, a 497 written, certified statement from the appropriate state attorney 498 or statewide prosecutor which indicates: 499 1. That an indictment, information, or other charging 500 document was not filed or issued in the case. 501 2. That an indictment, information, or other charging 502 document, if filed or issued in the case, was dismissed or nolle 503 prosequi by the state attorney or statewide prosecutor, or was 504 dismissed by a court of competent jurisdiction, and that none of 505 the charges related to the arrest or alleged criminal activity 506 to which the petition to expunge pertains resulted in a trial, 507 without regard to whether the outcome of the trial was other 508 than an adjudication of guilt. 509 3. That the criminal history record does not relate to a 510 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 511 former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, 512 s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, 513 s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, 514 or any violation specified as a predicate offense for 515 registration as a sexual predator pursuant to s. 775.21, without 516 regard to whether that offense alone is sufficient to require 517 such registration, or for registration as a sexual offender 518 pursuant to s. 943.0435, where the defendant was found guilty 519 of, or pled guilty or nolo contendere to any such offense, or 520 that the defendant, as a minor, was found to have committed, or 521 pled guilty or nolo contendere to committing, such an offense as 522 a delinquent act, without regard to whether adjudication was 523 withheld. 524 (b) Remits a $75 processing fee to the department for 525 placement in the Department of Law Enforcement Operating Trust 526 Fund, unless such fee is waived by the executive director. 527 (c) Has submitted to the department a certified copy of the 528 disposition of the charge to which the petition to expunge 529 pertains. 530 (d) Has never, prior to the date on which the application 531 for a certificate of eligibility is filed, been adjudicated 532 guilty of a criminal offense or comparable ordinance violation, 533 or been adjudicated delinquent for committing any felony or a 534 misdemeanor specified in s. 943.051(3)(b). 535 (e) Has not been adjudicated guilty of, or adjudicated 536 delinquent for committing, any of the acts stemming from the 537 arrest or alleged criminal activity to which the petition to 538 expunge pertains. 539 (f) Has never secured a prior sealing or expunction of a 540 criminal history record under this section, s. 943.059, former 541 s. 893.14, former s. 901.33, or former s. 943.058, unless 542 expunction is sought of a criminal history record previously 543 sealed for 10 years pursuant to paragraph (h) and the record is 544 otherwise eligible for expunction. 545 (g) Is no longer under court supervision applicable to the 546 disposition of the arrest or alleged criminal activity to which 547 the petition to expunge pertains. 548 (h) Has previously obtained a court order sealing the 549 record under this section, former s. 893.14, former s. 901.33, 550 or former s. 943.058 for a minimum of 10 years because 551 adjudication was withheld or because all charges related to the 552 arrest or alleged criminal activity to which the petition to 553 expunge pertains were not dismissed prior to trial, without 554 regard to whether the outcome of the trial was other than an 555 adjudication of guilt. The requirement for the record to have 556 previously been sealed for a minimum of 10 years does not apply 557 when a plea was not entered or all charges related to the arrest 558 or alleged criminal activity to which the petition to expunge 559 pertains were dismissed prior to trial. 560 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.— 561 (a) In judicial proceedings under this section, a copy of 562 the completed petition to expunge shall be served upon the 563 appropriate state attorney or the statewide prosecutor and upon 564 the arresting agency; however, it is not necessary to make any 565 agency other than the state a party. The appropriate state 566 attorney or the statewide prosecutor and the arresting agency 567 may respond to the court regarding the completed petition to 568 expunge. 569 (b) If relief is granted by the court, the clerk of the 570 court shall certify copies of the order to the appropriate state 571 attorney or the statewide prosecutor and the arresting agency. 572 The arresting agency is responsible for forwarding the order to 573 any other agency to which the arresting agency disseminated the 574 criminal history record information to which the order pertains. 575 The department shall forward the order to expunge to the Federal 576 Bureau of Investigation. The clerk of the court shall certify a 577 copy of the order to any other agency which the records of the 578 court reflect has received the criminal history record from the 579 court. 580 (c) For an order to expunge entered by a court prior to 581 July 1, 1992, the department shall notify the appropriate state 582 attorney or statewide prosecutor of an order to expunge which is 583 contrary to law because the person who is the subject of the 584 record has previously been convicted of a crime or comparable 585 ordinance violation or has had a prior criminal history record 586 sealed or expunged. Upon receipt of such notice, the appropriate 587 state attorney or statewide prosecutor shall take action, within 588 60 days, to correct the record and petition the court to void 589 the order to expunge. The department shall seal the record until 590 such time as the order is voided by the court. 591 (d) On or after July 1, 1992, the department or any other 592 criminal justice agency is not required to act on an order to 593 expunge entered by a court when such order does not comply with 594 the requirements of this section. Upon receipt of such an order, 595 the department must notify the issuing court, the appropriate 596 state attorney or statewide prosecutor, the petitioner or the 597 petitioner’s attorney, and the arresting agency of the reason 598 for noncompliance. The appropriate state attorney or statewide 599 prosecutor shall take action within 60 days to correct the 600 record and petition the court to void the order. No cause of 601 action, including contempt of court, shall arise against any 602 criminal justice agency for failure to comply with an order to 603 expunge when the petitioner for such order failed to obtain the 604 certificate of eligibility as required by this section or such 605 order does not otherwise comply with the requirements of this 606 section. 607 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any 608 criminal history record of a minor or an adult which is ordered 609 expunged by a court of competent jurisdiction pursuant to this 610 section must be physically destroyed or obliterated by any 611 criminal justice agency having custody of such record; except 612 that any criminal history record in the custody of the 613 department must be retained in all cases. A criminal history 614 record ordered expunged that is retained by the department is 615 confidential and exempt from the provisions of s. 119.07(1) and 616 s. 24(a), Art. I of the State Constitution and not available to 617 any person or entity except upon order of a court of competent 618 jurisdiction. A criminal justice agency may retain a notation 619 indicating compliance with an order to expunge. 620 (a) The person who is the subject of a criminal history 621 record that is expunged under this section or under other 622 provisions of law, including former s. 893.14, former s. 901.33, 623 and former s. 943.058, may lawfully deny or fail to acknowledge 624 the arrests covered by the expunged record, except when the 625 subject of the record: 626 1. Is a candidate for employment with a criminal justice 627 agency; 628 2. Is a defendant in a criminal prosecution; 629 3. Concurrently or subsequently petitions for relief under 630 this section, s. 943.0583, or s. 943.059; 631 4. Is a candidate for admission to The Florida Bar; 632 5. Is seeking to be employed or licensed by or to contract 633 with the Department of Children and Families, the Division of 634 Vocational Rehabilitation within the Department of Education, 635 the Agency for Health Care Administration, the Agency for 636 Persons with Disabilities, the Department of Health, the 637 Department of Elderly Affairs, or the Department of Juvenile 638 Justice or to be employed or used by such contractor or licensee 639 in a sensitive position having direct contact with children, the 640 disabled, or the elderly; 641 6. Is seeking to be employed or licensed by the Department 642 of Education, any district school board, any university 643 laboratory school, any charter school, any private or parochial 644 school, or any local governmental entity that licenses child 645 care facilities; 646 7. Is seeking to be licensed by the Division of Insurance 647 Agent and Agency Services within the Department of Financial 648 Services; or 649 8. Is seeking to be appointed as a guardian pursuant to s. 650 744.3125. 651 (b) Subject to the exceptions in paragraph (a), a person 652 who has been granted an expunction under this section, former s. 653 893.14, former s. 901.33, or former s. 943.058 may not be held 654 under any provision of law of this state to commit perjury or to 655 be otherwise liable for giving a false statement by reason of 656 such person’s failure to recite or acknowledge an expunged 657 criminal history record. 658 (c) Information relating to the existence of an expunged 659 criminal history record which is provided in accordance with 660 paragraph (a) is confidential and exempt from the provisions of 661 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 662 except that the department shall disclose the existence of a 663 criminal history record ordered expunged to the entities set 664 forth in subparagraphs (a)1., 4., 5., 6., 7., and 8. for their 665 respective licensing, access authorization, and employment 666 purposes, and to criminal justice agencies for their respective 667 criminal justice purposes. It is unlawful for any employee of an 668 entity set forth in subparagraph (a)1., subparagraph (a)4., 669 subparagraph (a)5., subparagraph (a)6., subparagraph (a)7., or 670 subparagraph (a)8. to disclose information relating to the 671 existence of an expunged criminal history record of a person 672 seeking employment, access authorization, or licensure with such 673 entity or contractor, except to the person to whom the criminal 674 history record relates or to persons having direct 675 responsibility for employment, access authorization, or 676 licensure decisions. Any person who violates this paragraph 677 commits a misdemeanor of the first degree, punishable as 678 provided in s. 775.082 or s. 775.083. 679 (5) EXCEPTION FOR LAWFUL SELF-DEFENSE.—Notwithstanding the 680 eligibility requirements prescribed in paragraph (1)(b) and 681 subsection (2), the department shall issue a certificate of 682 eligibility for expunction under this subsection to a person who 683 is the subject of a criminal history record if that person: 684 (a) Has obtained, and submitted to the department, on a 685 form provided by the department, a written, certified statement 686 from the appropriate state attorney or statewide prosecutor 687 which states whether an information, indictment, or other 688 charging document was not filed or was dismissed by the state 689 attorney, or dismissed by the court, because it was found that 690 the person acted in lawful self-defense pursuant to the 691 provisions related to justifiable use of force in chapter 776. 692 (b) Each petition to a court to expunge a criminal history 693 record pursuant to this subsection is complete only when 694 accompanied by: 695 1. A valid certificate of eligibility for expunction issued 696 by the department pursuant to this subsection. 697 2. The petitioner’s sworn statement attesting that the 698 petitioner is eligible for such an expunction to the best of his 699 or her knowledge or belief. 700 701 Any person who knowingly provides false information on such 702 sworn statement to the court commits a felony of the third 703 degree, punishable as provided in s. 775.082, s. 775.083, or s. 704 775.084. 705 (c) This subsection does not confer any right to the 706 expunction of a criminal history record, and any request for 707 expunction of a criminal history record may be denied at the 708 discretion of the court. 709 (d) Subsections (3) and (4) shall apply to expunction 710 ordered under this subsection. 711 (e) The department shall, by rule adopted pursuant to 712 chapter 120, establish procedures pertaining to the application 713 for and issuance of certificates of eligibility for expunction 714 under this subsection. 715 (6) STATUTORY REFERENCES.—Any reference to any other 716 chapter, section, or subdivision of the Florida Statutes in this 717 section constitutes a general reference under the doctrine of 718 incorporation by reference. 719 Section 5. For the purpose of incorporating the amendment 720 made by this act to section 907.041, Florida Statutes, in a 721 reference thereto, section 943.059, Florida Statutes, is 722 reenacted to read: 723 943.059 Court-ordered sealing of criminal history records. 724 The courts of this state shall continue to have jurisdiction 725 over their own procedures, including the maintenance, sealing, 726 and correction of judicial records containing criminal history 727 information to the extent such procedures are not inconsistent 728 with the conditions, responsibilities, and duties established by 729 this section. Any court of competent jurisdiction may order a 730 criminal justice agency to seal the criminal history record of a 731 minor or an adult who complies with the requirements of this 732 section. The court shall not order a criminal justice agency to 733 seal a criminal history record until the person seeking to seal 734 a criminal history record has applied for and received a 735 certificate of eligibility for sealing pursuant to subsection 736 (2). A criminal history record that relates to a violation of s. 737 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, 738 s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, 739 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, 740 s. 916.1075, a violation enumerated in s. 907.041, or any 741 violation specified as a predicate offense for registration as a 742 sexual predator pursuant to s. 775.21, without regard to whether 743 that offense alone is sufficient to require such registration, 744 or for registration as a sexual offender pursuant to s. 745 943.0435, may not be sealed, without regard to whether 746 adjudication was withheld, if the defendant was found guilty of 747 or pled guilty or nolo contendere to the offense, or if the 748 defendant, as a minor, was found to have committed or pled 749 guilty or nolo contendere to committing the offense as a 750 delinquent act. The court may only order sealing of a criminal 751 history record pertaining to one arrest or one incident of 752 alleged criminal activity, except as provided in this section. 753 The court may, at its sole discretion, order the sealing of a 754 criminal history record pertaining to more than one arrest if 755 the additional arrests directly relate to the original arrest. 756 If the court intends to order the sealing of records pertaining 757 to such additional arrests, such intent must be specified in the 758 order. A criminal justice agency may not seal any record 759 pertaining to such additional arrests if the order to seal does 760 not articulate the intention of the court to seal records 761 pertaining to more than one arrest. This section does not 762 prevent the court from ordering the sealing of only a portion of 763 a criminal history record pertaining to one arrest or one 764 incident of alleged criminal activity. Notwithstanding any law 765 to the contrary, a criminal justice agency may comply with laws, 766 court orders, and official requests of other jurisdictions 767 relating to sealing, correction, or confidential handling of 768 criminal history records or information derived therefrom. This 769 section does not confer any right to the sealing of any criminal 770 history record, and any request for sealing a criminal history 771 record may be denied at the sole discretion of the court. 772 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each 773 petition to a court to seal a criminal history record is 774 complete only when accompanied by: 775 (a) A valid certificate of eligibility for sealing issued 776 by the department pursuant to subsection (2). 777 (b) The petitioner’s sworn statement attesting that the 778 petitioner: 779 1. Has never, prior to the date on which the petition is 780 filed, been adjudicated guilty of a criminal offense or 781 comparable ordinance violation, or been adjudicated delinquent 782 for committing any felony or a misdemeanor specified in s. 783 943.051(3)(b). 784 2. Has not been adjudicated guilty of or adjudicated 785 delinquent for committing any of the acts stemming from the 786 arrest or alleged criminal activity to which the petition to 787 seal pertains. 788 3. Has never secured a prior sealing or expunction of a 789 criminal history record under this section, s. 943.0585, former 790 s. 893.14, former s. 901.33, or former s. 943.058. 791 4. Is eligible for such a sealing to the best of his or her 792 knowledge or belief and does not have any other petition to seal 793 or any petition to expunge pending before any court. 794 795 Any person who knowingly provides false information on such 796 sworn statement to the court commits a felony of the third 797 degree, punishable as provided in s. 775.082, s. 775.083, or s. 798 775.084. 799 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to 800 petitioning the court to seal a criminal history record, a 801 person seeking to seal a criminal history record shall apply to 802 the department for a certificate of eligibility for sealing. The 803 department shall, by rule adopted pursuant to chapter 120, 804 establish procedures pertaining to the application for and 805 issuance of certificates of eligibility for sealing. A 806 certificate of eligibility for sealing is valid for 12 months 807 after the date stamped on the certificate when issued by the 808 department. After that time, the petitioner must reapply to the 809 department for a new certificate of eligibility. Eligibility for 810 a renewed certification of eligibility must be based on the 811 status of the applicant and the law in effect at the time of the 812 renewal application. The department shall issue a certificate of 813 eligibility for sealing to a person who is the subject of a 814 criminal history record provided that such person: 815 (a) Has submitted to the department a certified copy of the 816 disposition of the charge to which the petition to seal 817 pertains. 818 (b) Remits a $75 processing fee to the department for 819 placement in the Department of Law Enforcement Operating Trust 820 Fund, unless such fee is waived by the executive director. 821 (c) Has never, prior to the date on which the application 822 for a certificate of eligibility is filed, been adjudicated 823 guilty of a criminal offense or comparable ordinance violation, 824 or been adjudicated delinquent for committing any felony or a 825 misdemeanor specified in s. 943.051(3)(b). 826 (d) Has not been adjudicated guilty of or adjudicated 827 delinquent for committing any of the acts stemming from the 828 arrest or alleged criminal activity to which the petition to 829 seal pertains. 830 (e) Has never secured a prior sealing or expunction of a 831 criminal history record under this section, s. 943.0585, former 832 s. 893.14, former s. 901.33, or former s. 943.058. 833 (f) Is no longer under court supervision applicable to the 834 disposition of the arrest or alleged criminal activity to which 835 the petition to seal pertains. 836 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.— 837 (a) In judicial proceedings under this section, a copy of 838 the completed petition to seal shall be served upon the 839 appropriate state attorney or the statewide prosecutor and upon 840 the arresting agency; however, it is not necessary to make any 841 agency other than the state a party. The appropriate state 842 attorney or the statewide prosecutor and the arresting agency 843 may respond to the court regarding the completed petition to 844 seal. 845 (b) If relief is granted by the court, the clerk of the 846 court shall certify copies of the order to the appropriate state 847 attorney or the statewide prosecutor and to the arresting 848 agency. The arresting agency is responsible for forwarding the 849 order to any other agency to which the arresting agency 850 disseminated the criminal history record information to which 851 the order pertains. The department shall forward the order to 852 seal to the Federal Bureau of Investigation. The clerk of the 853 court shall certify a copy of the order to any other agency 854 which the records of the court reflect has received the criminal 855 history record from the court. 856 (c) For an order to seal entered by a court prior to July 857 1, 1992, the department shall notify the appropriate state 858 attorney or statewide prosecutor of any order to seal which is 859 contrary to law because the person who is the subject of the 860 record has previously been convicted of a crime or comparable 861 ordinance violation or has had a prior criminal history record 862 sealed or expunged. Upon receipt of such notice, the appropriate 863 state attorney or statewide prosecutor shall take action, within 864 60 days, to correct the record and petition the court to void 865 the order to seal. The department shall seal the record until 866 such time as the order is voided by the court. 867 (d) On or after July 1, 1992, the department or any other 868 criminal justice agency is not required to act on an order to 869 seal entered by a court when such order does not comply with the 870 requirements of this section. Upon receipt of such an order, the 871 department must notify the issuing court, the appropriate state 872 attorney or statewide prosecutor, the petitioner or the 873 petitioner’s attorney, and the arresting agency of the reason 874 for noncompliance. The appropriate state attorney or statewide 875 prosecutor shall take action within 60 days to correct the 876 record and petition the court to void the order. No cause of 877 action, including contempt of court, shall arise against any 878 criminal justice agency for failure to comply with an order to 879 seal when the petitioner for such order failed to obtain the 880 certificate of eligibility as required by this section or when 881 such order does not comply with the requirements of this 882 section. 883 (e) An order sealing a criminal history record pursuant to 884 this section does not require that such record be surrendered to 885 the court, and such record shall continue to be maintained by 886 the department and other criminal justice agencies. 887 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 888 history record of a minor or an adult which is ordered sealed by 889 a court pursuant to this section is confidential and exempt from 890 the provisions of s. 119.07(1) and s. 24(a), Art. I of the State 891 Constitution and is available only to the person who is the 892 subject of the record, to the subject’s attorney, to criminal 893 justice agencies for their respective criminal justice purposes, 894 which include conducting a criminal history background check for 895 approval of firearms purchases or transfers as authorized by 896 state or federal law, to judges in the state courts system for 897 the purpose of assisting them in their case-related 898 decisionmaking responsibilities, as set forth in s. 943.053(5), 899 or to those entities set forth in subparagraphs (a)1., 4., 5., 900 6., 8., 9., and 10. for their respective licensing, access 901 authorization, and employment purposes. 902 (a) The subject of a criminal history record sealed under 903 this section or under other provisions of law, including former 904 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully 905 deny or fail to acknowledge the arrests covered by the sealed 906 record, except when the subject of the record: 907 1. Is a candidate for employment with a criminal justice 908 agency; 909 2. Is a defendant in a criminal prosecution; 910 3. Concurrently or subsequently petitions for relief under 911 this section, s. 943.0583, or s. 943.0585; 912 4. Is a candidate for admission to The Florida Bar; 913 5. Is seeking to be employed or licensed by or to contract 914 with the Department of Children and Families, the Division of 915 Vocational Rehabilitation within the Department of Education, 916 the Agency for Health Care Administration, the Agency for 917 Persons with Disabilities, the Department of Health, the 918 Department of Elderly Affairs, or the Department of Juvenile 919 Justice or to be employed or used by such contractor or licensee 920 in a sensitive position having direct contact with children, the 921 disabled, or the elderly; 922 6. Is seeking to be employed or licensed by the Department 923 of Education, a district school board, a university laboratory 924 school, a charter school, a private or parochial school, or a 925 local governmental entity that licenses child care facilities; 926 7. Is attempting to purchase a firearm from a licensed 927 importer, licensed manufacturer, or licensed dealer and is 928 subject to a criminal history check under state or federal law; 929 8. Is seeking to be licensed by the Division of Insurance 930 Agent and Agency Services within the Department of Financial 931 Services; 932 9. Is seeking to be appointed as a guardian pursuant to s. 933 744.3125; or 934 10. Is seeking to be licensed by the Bureau of License 935 Issuance of the Division of Licensing within the Department of 936 Agriculture and Consumer Services to carry a concealed weapon or 937 concealed firearm. This subparagraph applies only in the 938 determination of an applicant’s eligibility under s. 790.06. 939 (b) Subject to the exceptions in paragraph (a), a person 940 who has been granted a sealing under this section, former s. 941 893.14, former s. 901.33, or former s. 943.058 may not be held 942 under any provision of law of this state to commit perjury or to 943 be otherwise liable for giving a false statement by reason of 944 such person’s failure to recite or acknowledge a sealed criminal 945 history record. 946 (c) Information relating to the existence of a sealed 947 criminal record provided in accordance with the provisions of 948 paragraph (a) is confidential and exempt from the provisions of 949 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 950 except that the department shall disclose the sealed criminal 951 history record to the entities set forth in subparagraphs (a)1., 952 4., 5., 6., 8., 9., and 10. for their respective licensing, 953 access authorization, and employment purposes. An employee of an 954 entity set forth in subparagraph (a)1., subparagraph (a)4., 955 subparagraph (a)5., subparagraph (a)6., subparagraph (a)8., 956 subparagraph (a)9., or subparagraph (a)10. may not disclose 957 information relating to the existence of a sealed criminal 958 history record of a person seeking employment, access 959 authorization, or licensure with such entity or contractor, 960 except to the person to whom the criminal history record relates 961 or to persons having direct responsibility for employment, 962 access authorization, or licensure decisions. A person who 963 violates the provisions of this paragraph commits a misdemeanor 964 of the first degree, punishable as provided in s. 775.082 or s. 965 775.083. 966 (5) STATUTORY REFERENCES.—Any reference to any other 967 chapter, section, or subdivision of the Florida Statutes in this 968 section constitutes a general reference under the doctrine of 969 incorporation by reference. 970 Section 6. This act shall take effect July 1, 2018.