HB 1369

1
A bill to be entitled
2An act relating to criminal history records; providing a
3short title; amending s. 943.0585, F.S.; authorizing a
4chief judge in a circuit to use senior judges or county
5court judges to hear expunction petitions; authorizing
6expunction of a record containing more than one arrest;
7deleting provisions relating to a limitation on expunging
8only records with one arrest; providing duties for private
9companies or individuals that disseminate public records;
10revising requirements for a petition to expunge a criminal
11history record; revising requirements for service of
12petitions to expunge records; providing for automatic
13qualification for expunction of records in certain
14circumstances; providing requirements for expunction of
15such records; providing for expunction orders; providing
16for a procedure if the Department of Law Enforcement or
17any other criminal justice agency believes an expunction
18order did not comply with requirements; providing that an
19order expunging a criminal history record under specified
20provisions does not require that the record be surrendered
21to the court; providing that such record shall continue to
22be maintained by the department and other criminal justice
23agencies; amending s. 943.0582, F.S.; conforming a cross-
24reference; providing an effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  This act may be cited as the "Jim King Keep
29Florida Working Act."
30     Section 2.  Section 943.0585, Florida Statutes, is amended
31to read:
32     943.0585  Court-ordered expunction of criminal history
33records.-The courts of this state have jurisdiction over their
34own procedures, including the maintenance, expunction, and
35correction of judicial records containing criminal history
36information to the extent such procedures are not inconsistent
37with the conditions, responsibilities, and duties established by
38this section. The chief judge in any circuit may authorize the
39use of senior judges or county court judges to hear cases
40involving petitions to expunge criminal history records. Any
41court of competent jurisdiction may order a criminal justice
42agency to expunge the criminal history record of a minor or an
43adult who complies with the requirements of this section. The
44court may shall not order a criminal justice agency to expunge a
45criminal history record until the person seeking to expunge a
46criminal history record has applied for and received a
47certificate of eligibility for expunction pursuant to subsection
48(2), unless the person qualifies for an automatic expunction
49under subsection (4). A criminal history record that relates to
50a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
51s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
52827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
53893.135, s. 916.1075, a violation enumerated in s. 907.041, or
54any violation specified as a predicate offense for registration
55as a sexual predator pursuant to s. 775.21, without regard to
56whether that offense alone is sufficient to require such
57registration, or for registration as a sexual offender pursuant
58to s. 943.0435, may not be expunged, without regard to whether
59adjudication was withheld, if the defendant was found guilty of
60or pled guilty or nolo contendere to the offense, or if the
61defendant, as a minor, was found to have committed, or pled
62guilty or nolo contendere to committing, the offense as a
63delinquent act. The court may only order expunction of a
64criminal history record pertaining to one or more arrests arrest
65or incidents one incident of alleged criminal activity, except
66as provided in this section. The court shall automatically
67expunge, upon appropriate petition as provided in this section,
68the criminal history record in which formal charges were either
69not filed by the state or, if filed, were ultimately dismissed
70by the state or a court of competent jurisdiction or resulted in
71a finding of not guilty by the fact finder in a trial on the
72merits of the charges The court may, at its sole discretion,
73order the expunction of a criminal history record pertaining to
74more than one arrest if the additional arrests directly relate
75to the original arrest. If the court intends to order the
76expunction of records pertaining to such additional arrests,
77such intent must be specified in the order. A criminal justice
78agency may not expunge any record pertaining to such additional
79arrests if the order to expunge does not articulate the
80intention of the court to expunge a record pertaining to more
81than one arrest. This section does not prevent the court from
82ordering the expunction of only a portion of a criminal history
83record pertaining to one arrest or one incident of alleged
84criminal activity. Notwithstanding any law to the contrary, a
85criminal justice agency may comply with laws, court orders, and
86official requests of other jurisdictions relating to expunction,
87correction, or confidential handling of criminal history records
88or information derived therefrom. This section does not confer
89any right to the expunction of any criminal history record, with
90the exception of the automatic expunging of criminal history
91records upon appropriate petition, and any request for
92expunction of a criminal history record may be denied at the
93sole discretion of the court. Any private company or individual
94that disseminates public records subject to this section is
95under an affirmative duty to maintain accurate records and must
96comply with all provisions of this section.
97     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each
98petition to a court to expunge a criminal history record is
99complete only when accompanied by:
100     (a)  A valid certificate of eligibility for expunction
101issued by the department pursuant to subsection (2).
102     (b)  The petitioner's sworn statement attesting that the
103petitioner:
104     1.  Has never, prior to the date on which the petition is
105filed, been adjudicated guilty of a criminal offense or
106comparable ordinance violation, or been adjudicated delinquent
107for committing any felony or a misdemeanor specified in s.
108943.051(3)(b).
109     1.2.  Has not been adjudicated guilty of, or adjudicated
110delinquent for committing, any of the acts stemming from the
111arrest or alleged criminal activity to which the petition
112pertains.
113     2.3.  Has never secured a prior sealing or expunction of a
114criminal history record under this section, former s. 893.14,
115former s. 901.33, or former s. 943.058, or from any jurisdiction
116outside the state, unless expunction is sought of a criminal
117history record previously sealed for 10 years pursuant to
118paragraph (2)(g)(h) or, if expunction is sought for a
119misdemeanor, the petitioner has been free from arrest for a
120period of 5 years or, if expunction is sought for a felony, the
121petitioner has been free from arrest for a period of 10 years,
122and the record is otherwise eligible for expunction.
123     3.4.  Is eligible for such an expunction to the best of his
124or her knowledge or belief and does not have any other petition
125to expunge or any petition to seal pending before any court.
126
127Any person who knowingly provides false information on such
128sworn statement to the court commits a felony of the third
129degree, punishable as provided in s. 775.082, s. 775.083, or s.
130775.084.
131     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to
132petitioning the court to expunge a criminal history record, a
133person seeking to expunge a criminal history record shall apply
134to the department for a certificate of eligibility for
135expunction. The department shall, by rule adopted pursuant to
136chapter 120, establish procedures pertaining to the application
137for and issuance of certificates of eligibility for expunction.
138A certificate of eligibility for expunction is valid for 12
139months after the date stamped on the certificate when issued by
140the department. After that time, the petitioner must reapply to
141the department for a new certificate of eligibility. Eligibility
142for a renewed certification of eligibility must be based on the
143status of the applicant and the law in effect at the time of the
144renewal application. The department shall issue a certificate of
145eligibility for expunction to a person who is the subject of a
146criminal history record if that person:
147     (a)  Has obtained, and submitted to the department, a
148written, certified statement from the appropriate state attorney
149or statewide prosecutor which indicates:
150     1.  That an indictment, information, or other charging
151document was not filed or issued in the case.
152     2.  That an indictment, information, or other charging
153document, if filed or issued in the case, was dismissed or nolle
154prosequi by the state attorney or statewide prosecutor, or was
155dismissed by a court of competent jurisdiction, and that none of
156the charges related to the arrest or alleged criminal activity
157to which the petition to expunge pertains resulted in a trial,
158without regard to whether the outcome of the trial was other
159than an adjudication of guilt.
160     3.  That the criminal history record does not relate to a
161violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
162s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
163827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
164893.135, s. 916.1075, a violation enumerated in s. 907.041, or
165any violation specified as a predicate offense for registration
166as a sexual predator pursuant to s. 775.21, without regard to
167whether that offense alone is sufficient to require such
168registration, or for registration as a sexual offender pursuant
169to s. 943.0435, where the defendant was found guilty of, or pled
170guilty or nolo contendere to any such offense, or that the
171defendant, as a minor, was found to have committed, or pled
172guilty or nolo contendere to committing, such an offense as a
173delinquent act, without regard to whether adjudication was
174withheld.
175     (b)  Remits a $75 processing fee to the department for
176placement in the Department of Law Enforcement Operating Trust
177Fund, unless such fee is waived by the executive director.
178     (c)  Has submitted to the department a certified copy of
179the disposition of the charge to which the petition to expunge
180pertains.
181     (d)  Has never, prior to the date on which the application
182for a certificate of eligibility is filed, been adjudicated
183guilty of a criminal offense or comparable ordinance violation,
184or been adjudicated delinquent for committing any felony or a
185misdemeanor specified in s. 943.051(3)(b).
186     (d)(e)  Has not been adjudicated guilty of, or adjudicated
187delinquent for committing, any of the acts stemming from the
188arrest or alleged criminal activity to which the petition to
189expunge pertains.
190     (e)(f)  Has never secured a prior sealing or expunction of
191a criminal history record under this section, former s. 893.14,
192former s. 901.33, or former s. 943.058, unless expunction is
193sought of a criminal history record previously sealed for 2 10
194years pursuant to paragraph (g) or, if expunction is sought for
195a misdemeanor, the petitioner has been free from arrest for a
196period of 5 years or, if expunction is sought for a felony, the
197petitioner has been free from arrest for a period of 10 years
198(h) and the record is otherwise eligible for expunction.
199     (f)(g)  Is no longer under court supervision applicable to
200the disposition of the arrest or alleged criminal activity to
201which the petition to expunge pertains.
202     (g)(h)  Has previously obtained a court order sealing the
203record under this section, former s. 893.14, former s. 901.33,
204or former s. 943.058 for a minimum of 10 years because
205adjudication was withheld or because all charges related to the
206arrest or alleged criminal activity to which the petition to
207expunge pertains were not dismissed prior to trial, without
208regard to whether the outcome of the trial was other than an
209adjudication of guilt. The requirement for the record to have
210previously been sealed for a minimum of 10 years does not apply
211when a plea was not entered or all charges related to the arrest
212or alleged criminal activity to which the petition to expunge
213pertains were dismissed prior to trial.
214     (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.-
215     (a)  In judicial proceedings under this section, a copy of
216the completed petition to expunge shall be served upon the
217appropriate state attorney or the statewide prosecutor and upon
218the arresting agency; however, it is not necessary to make any
219agency other than the state a party. The appropriate state
220attorney or the statewide prosecutor and the arresting agency
221may respond to the court regarding the completed petition to
222expunge.
223     (b)  If relief is granted by the court, the clerk of the
224court shall certify copies of the order to the appropriate state
225attorney or the statewide prosecutor and the arresting agency.
226The arresting agency is responsible for forwarding the order to
227any other agency to which the arresting agency disseminated the
228criminal history record information to which the order pertains.
229The department shall forward the order to expunge to the Federal
230Bureau of Investigation and the appropriate office of the state
231attorney or the statewide prosecutor that prosecuted the case.
232The clerk of the court shall certify a copy of the order to any
233other agency which the records of the court reflect has received
234the criminal history record from the court.
235     (c)  For an order to expunge entered by a court prior to
236July 1, 1992, the department shall notify the appropriate state
237attorney or statewide prosecutor of an order to expunge which is
238contrary to law because the person who is the subject of the
239record has previously been convicted of a crime or comparable
240ordinance violation or has had a prior criminal history record
241sealed or expunged. Upon receipt of such notice, the appropriate
242state attorney or statewide prosecutor shall take action, within
24360 days, to correct the record and petition the court to void
244the order to expunge. The department shall seal the record until
245such time as the order is voided by the court.
246     (d)  On or after July 1, 1992, the department or any other
247criminal justice agency is not required to act on an order to
248expunge entered by a court when such order does not comply with
249the requirements of this section. Upon receipt of such an order,
250the department must notify the issuing court, the appropriate
251state attorney or statewide prosecutor, the petitioner or the
252petitioner's attorney, and the arresting agency of the reason
253for noncompliance. The appropriate state attorney or statewide
254prosecutor shall take action within 60 days to correct the
255record and petition the court to void the order. With the
256exception of automatic expunction brought by petition under
257subsection (4), no cause of action, including contempt of court,
258may shall arise against any criminal justice agency for failure
259to comply with an order to expunge when the petitioner for such
260order failed to obtain the certificate of eligibility as
261required by this section or such order does not otherwise comply
262with the requirements of this section.
263     (4)  AUTOMATIC QUALIFICATION FOR EXPUNCTION.-
264Notwithstanding any provisions of this section or any law
265dealing generally with the preservation and destruction of
266public records, a criminal history record relating to a person
267who has not been found guilty of, or not pled guilty or nolo
268contendere to, an offense automatically qualifies for
269expunction. If the person was adjudicated guilty of or
270adjudicated delinquent for committing any of the acts stemming
271from the arrest or alleged criminal activity or delinquent act,
272the record does not qualify for automatic expunction.
273     (a)  A record automatically qualified for expunction shall
274be expunged if:
275     1.  An indictment, information, or other charging document
276was not filed or issued in the case;
277     2.  An indictment, information, or other charging document
278was filed or issued in the case and was dismissed or a nolle
279prosequi was filed by the state attorney or statewide prosecutor
280or the case was dismissed by a court of competent jurisdiction;
281or
282     3.  The person was found not guilty or acquitted by a judge
283or jury.
284     (b)  Each petition to a court to expunge a criminal history
285record under this subsection is complete only when accompanied
286by a certified copy of the disposition of the offenses sought to
287be sealed.
288     (c)1.  A certificate of eligibility for expunction from the
289department is not required under this subsection.
290     2.  Any court of competent jurisdiction may order a
291criminal justice agency to expunge the criminal history record
292of a minor or an adult whose record qualifies for automatic
293expunction under this subsection.
294     3.  In judicial proceedings under this subsection, a copy
295of the completed petition to expunge shall be served upon the
296arresting agency; however, it is not necessary to make any
297agency other than the state a party to the proceedings. The
298arresting agency may respond to the court regarding the
299completed petition to expunge.
300     4.  Notwithstanding this section, s. 943.059, and any other
301provision of law, the court may order expunction of a criminal
302history record pertaining to more than one arrest or more than
303one incident of alleged criminal activity if the person has not
304been adjudicated guilty of or adjudicated delinquent for
305committing any of the acts stemming from the arrest or alleged
306criminal activity or delinquent act to which the petition to
307expunge pertains.
308     5.  If relief is granted by the court, the clerk of the
309court shall certify copies of the order to the appropriate state
310attorney or the statewide prosecutor, to the county, and to the
311arresting agency. The arresting agency is responsible for
312forwarding the order to any other agency to which the arresting
313agency disseminated the criminal history record information to
314which the order pertains. The department shall forward the order
315to expunge to the Federal Bureau of Investigation. The clerk of
316the court shall certify a copy of the order to any other agency
317that court records indicate has received the criminal history
318record from the court. The county is responsible for forwarding
319the order to any agency, organization, or company to which the
320county disseminated the criminal history information to which
321the order pertains.
322     6.  The department or any other criminal justice agency is
323not required to act on an order to expunge entered by a court
324when such order does not comply with the requirements of this
325section. Upon receipt of such an order, the department must
326notify the issuing court, the appropriate state attorney or the
327statewide prosecutor, the petitioner or the petitioner's
328attorney, and the arresting agency within 5 business days after
329determining that the department or the agency cannot comply with
330the court order. The appropriate state attorney or the statewide
331prosecutor shall take action within 5 business days to correct
332the record and petition the court to void the order. No cause of
333action, including contempt of court, may arise against any
334criminal justice agency for failure to comply with an order to
335expunge when such order does not comply with the requirements of
336this subsection.
337     7.  An order expunging a criminal history record pursuant
338to this subsection does not require that such record be
339surrendered to the court, and such record shall continue to be
340maintained by the department and other criminal justice
341agencies.
342     (5)(4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any
343criminal history record of a minor or an adult which is ordered
344expunged by a court of competent jurisdiction pursuant to this
345section must be physically destroyed or obliterated by any
346criminal justice agency having custody of such record; except
347that any criminal history record in the custody of the
348department must be retained in all cases. A criminal history
349record ordered expunged that is retained by the department is
350confidential and exempt from the provisions of s. 119.07(1) and
351s. 24(a), Art. I of the State Constitution and not available to
352any person or entity except upon order of a court of competent
353jurisdiction. A criminal justice agency may retain a notation
354indicating compliance with an order to expunge.
355     (a)  The person who is the subject of a criminal history
356record that is expunged under this section or under other
357provisions of law, including former s. 893.14, former s. 901.33,
358and former s. 943.058, may lawfully deny or fail to acknowledge
359the arrests covered by the expunged record, except when the
360subject of the record:
361     1.  Is a candidate for employment with a criminal justice
362agency;
363     2.  Is a defendant in a criminal prosecution;
364     3.  Concurrently or subsequently petitions for relief under
365this section or s. 943.059;
366     4.  Is a candidate for admission to The Florida Bar;
367     5.  Is seeking to be employed or licensed by or to contract
368with the Department of Children and Family Services, the Agency
369for Health Care Administration, the Agency for Persons with
370Disabilities, or the Department of Juvenile Justice or to be
371employed or used by such contractor or licensee in a sensitive
372position having direct contact with children, the
373developmentally disabled, the aged, or the elderly as provided
374in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
375402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5),
376chapter 916, s. 985.644, chapter 400, or chapter 429;
377     6.  Is seeking to be employed or licensed by the Department
378of Education, any district school board, any university
379laboratory school, any charter school, any private or parochial
380school, or any local governmental entity that licenses child
381care facilities; or
382     7.  Is seeking authorization from a seaport listed in s.
383311.09 for employment within or access to one or more of such
384seaports pursuant to s. 311.12.
385     (b)  Subject to the exceptions in paragraph (a), a person
386who has been granted an expunction under this section, former s.
387893.14, former s. 901.33, or former s. 943.058 may not be held
388under any provision of law of this state to commit perjury or to
389be otherwise liable for giving a false statement by reason of
390such person's failure to recite or acknowledge an expunged
391criminal history record.
392     (c)  Information relating to the existence of an expunged
393criminal history record which is provided in accordance with
394paragraph (a) is confidential and exempt from the provisions of
395s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
396except that the department shall disclose the existence of a
397criminal history record ordered expunged to the entities set
398forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
399respective licensing, access authorization, and employment
400purposes, and to criminal justice agencies for their respective
401criminal justice purposes. It is unlawful for any employee of an
402entity set forth in subparagraph (a)1., subparagraph (a)4.,
403subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
404disclose information relating to the existence of an expunged
405criminal history record of a person seeking employment, access
406authorization, or licensure with such entity or contractor,
407except to the person to whom the criminal history record relates
408or to persons having direct responsibility for employment,
409access authorization, or licensure decisions. Any person who
410violates this paragraph commits a misdemeanor of the first
411degree, punishable as provided in s. 775.082 or s. 775.083.
412     (6)(5)  STATUTORY REFERENCES.-Any reference to any other
413chapter, section, or subdivision of the Florida Statutes in this
414section constitutes a general reference under the doctrine of
415incorporation by reference.
416     Section 3.  Paragraph (a) of subsection (2) of section
417943.0582, Florida Statutes, is amended to read:
418     943.0582  Prearrest, postarrest, or teen court diversion
419program expunction.-
420     (2)(a)  As used in this section, the term "expunction" has
421the same meaning ascribed in and effect as s. 943.0585, except
422that:
423     1.  The provisions of s. 943.0585(5)(4)(a) do not apply,
424except that the criminal history record of a person whose record
425is expunged pursuant to this section shall be made available
426only to criminal justice agencies for the purpose of determining
427eligibility for prearrest, postarrest, or teen court diversion
428programs; when the record is sought as part of a criminal
429investigation; or when the subject of the record is a candidate
430for employment with a criminal justice agency. For all other
431purposes, a person whose record is expunged under this section
432may lawfully deny or fail to acknowledge the arrest and the
433charge covered by the expunged record.
434     2.  Records maintained by local criminal justice agencies
435in the county in which the arrest occurred that are eligible for
436expunction pursuant to this section shall be sealed as the term
437is used in s. 943.059.
438     Section 4.  This act shall take effect July 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.