Senate Bill sb1864c1
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Florida Senate - 2001 CS for SB's 1864 & 2086
By the Committee on Criminal Justice and Senators Bronson,
Burt and Crist
18-1662A-01
1 A bill to be entitled
2 An act relating to criminal justice; amending
3 s. 943.031, F.S.; renaming the Florida Violent
4 Crime Council as the Florida Violent Crime and
5 Drug Control Council; adding members; revising
6 powers and duties of the council, particularly
7 with respect to money laundering and with drug
8 control; limiting funding that agencies may
9 receive from the council; amending s. 943.042,
10 F.S.; redesignating the Violent Crime Emergency
11 Account as the Violent Crime Emergency and Drug
12 Control Strategy Implementation Account;
13 prescribing uses that may be made of moneys
14 from the account; limiting funding that
15 agencies may receive from the account;
16 requiring rules that provide funding criteria;
17 providing for disqualification of an agency
18 from funding eligibility and for demand for
19 reimbursement by an agency for failure to use
20 funds as authorized; creating s. 943.0582,
21 F.S.; authorizing the expunction under certain
22 circumstances of the arrest record of a minor
23 who successfully completes a prearrest,
24 postarrest, or teen court diversion program;
25 amending s. 985.3065, F.S.; providing for a law
26 enforcement agency or school district to
27 establish a postarrest diversion program;
28 providing for expunction of the arrest of a
29 minor who completes such program; amending ss.
30 943.0585, 943.059, F.S.; prescribing additional
31 criminal violations for which a criminal
1
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1 history record may not be expunged or sealed;
2 amending s. 943.325, F.S.; authorizing use of
3 biological specimens other than blood for DNA
4 analysis; authorizing use of trained,
5 nonmedical personnel in collecting specimens;
6 providing for collection of specimens from
7 persons who are required to provide specimens
8 but have never been incarcerated; providing
9 immunity from liability for persons assisting
10 in collecting specimens; authorizing collection
11 of specimens at remote sites; amending s.
12 760.40, F.S.; exempting tests performed under
13 s. 943.325, F.S., from requirements for
14 informed consent to genetic testing; creating
15 s. 843.167, F.S.; prohibiting the interception
16 of police communications for certain purposes;
17 prohibiting disclosure of police
18 communications; providing presumptions;
19 providing penalties; providing an effective
20 date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 943.031, Florida Statutes, is
25 amended to read:
26 943.031 Florida Violent Crime and Drug Control
27 Council.--The Legislature finds that there is a need to
28 develop and implement a statewide strategy to address violent
29 criminal activity and drug-control efforts by state and local
30 law enforcement agencies, including investigations of illicit
31 money laundering. In recognition of this need, the Florida
2
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1 Violent Crime and Drug Control Council is created within the
2 department. The council shall serve in an advisory capacity
3 to the department.
4 (1) MEMBERSHIP.--The council shall consist of 14 12
5 members, as follows:
6 (a) The Attorney General or a designee designate.
7 (b) A designee designate of the executive director of
8 the Department of Law Enforcement.
9 (c) The secretary of the Department of Corrections or
10 a designee designate.
11 (d) The Secretary of Juvenile Justice or a designee
12 designate.
13 (e) The Commissioner of Education or a designee
14 designate.
15 (f) The president of the Florida Network of
16 Victim/Witness Services, Inc., or a designee designate.
17 (g) The Director of the Office of Drug Control,
18 Executive Office of the Governor, or a designee.
19 (h) The Comptroller, or a designee.
20 (i)(g) Six members appointed by the Governor,
21 consisting of two sheriffs, two chiefs of police, one medical
22 examiner, and one state attorney.
23
24 The Governor, when making appointments under this subsection,
25 must take into consideration representation by geography,
26 population, ethnicity, and other relevant factors to ensure
27 that the membership of the council is representative of the
28 state at large. A designee appearing on behalf of a council
29 member who is unable to attend a meeting of the council may
30 vote on issues before the council to the same extent the
31 designating council member may do so.
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1 (2) TERMS OF MEMBERSHIP; OFFICERS; COMPENSATION;
2 STAFF.--
3 (a) Members appointed by the Governor shall be
4 appointed for terms of 2 years. The other members are
5 standing members of the council. In no event shall a member
6 serve beyond the time he or she ceases to hold the office or
7 employment which was the basis for appointment to the council.
8 In the event of a vacancy, an appointment to fill the vacancy
9 shall be only for the unexpired term.
10 (b) The Legislature finds that the council serves a
11 legitimate state, county, and municipal purpose and that
12 service on the council is consistent with a member's principal
13 service in a public office or employment. Membership on the
14 council does not disqualify a member from holding any other
15 public office or being employed by a public entity, except
16 that no member of the Legislature shall serve on the council.
17 (c) The members of the council shall elect a chair and
18 a vice chair every 2 years, to serve for a 2-year term. As
19 deemed appropriate, other officers may be elected by the
20 members.
21 (d) Members of the council shall serve without
22 compensation but are entitled to reimbursement for per diem
23 and travel expenses pursuant to s. 112.061. Reimbursements
24 made pursuant to this paragraph shall be paid from funds
25 available in the Violent Crime Emergency and Drug Control
26 Strategy Implementation Account within the Department of Law
27 Enforcement Operating Trust Fund.
28 (e) The department shall provide the council with
29 staff necessary to assist the council in the performance of
30 its duties.
31
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1 (3) MEETINGS.--The council must meet at least
2 semiannually. Additional meetings may be held when it is
3 determined deemed appropriate by the chair that extraordinary
4 circumstances prompt an additional meeting of the council or a
5 majority of the council members. A majority of the members of
6 the council constitutes a quorum.
7 (4) DUTIES OF COUNCIL.--The council shall provide
8 advice and make recommendations, as necessary, to the
9 executive director of the department.
10 (a) The council may advise the executive director on
11 the feasibility of undertaking initiatives which include, but
12 are not limited to, the following:
13 1. Establishing a program which provides grants to
14 criminal justice agencies that develop and implement effective
15 violent crime prevention and investigative programs and
16 providing grants to law enforcement agencies for the purpose
17 of investigative or task force efforts relating to illicit
18 money laundering and drug control which are determined by the
19 council to significantly contribute to achieving the state's
20 goal of reducing drug-related crime as articulated by the
21 Office of Drug Control, which represent a significant
22 investigative effort into illicit money laundering, or which
23 otherwise significantly support statewide strategies developed
24 by the Statewide Drug Policy Advisory Council established
25 under s. 397.333 under the limitations provided in this
26 section. The grant program may shall include an innovations
27 grant program to provide startup funding for new initiatives
28 by local and state law enforcement agencies to combat violent
29 crime or to implement law enforcement drug-control or illicit
30 money-laundering investigative or task force efforts,
31 including, but not limited to, initiatives such as:
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1 a. Providing Provision of enhanced community-oriented
2 policing.
3 b. Providing Provision of additional undercover
4 officers and other investigative officers to assist with
5 violent crime investigations in emergency situations.
6 c. Providing funding of multi-agency or statewide
7 investigations or task force efforts relating to illicit money
8 laundering and drug control which cannot be reasonably totally
9 funded by alternative sources and which significantly
10 contribute to achieving the state's goal of reducing
11 drug-related crime as articulated by the Office of Drug
12 Control, which represent a significant investigative effort
13 into money laundering, or which otherwise significantly
14 support statewide strategies developed by the Statewide Drug
15 Policy Advisory Council established under s. 397.333.
16 2. Creating a criminal justice research and behavioral
17 science center. The center shall provide key support to local
18 law enforcement agencies undertaking unique or emergency
19 violent crime investigations, including the mobilization of
20 special task forces to directly target violent crime in
21 specific areas.
22 2.3. Expanding the use of automated fingerprint
23 identification systems at the state and local level.
24 3.4. Identifying methods to prevent violent crime.
25 4. Identifying methods to enhance multi-agency or
26 statewide investigations or task force efforts relating to
27 illicit money laundering or drug control which significantly
28 contribute to achieving the state's goal of reducing
29 drug-related crime as articulated by the Office of Drug
30 Control, which represent a significant investigative effort
31 into money laundering, or which otherwise significantly
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1 support statewide strategies developed by the Statewide Drug
2 Policy Advisory Council established under s. 397.333.
3 5. Enhancing criminal justice training programs which
4 address violent crime or investigative techniques or efforts
5 relating to illicit money laundering or drug control.
6 6. Developing and promoting crime prevention services
7 and educational programs that serve the public, including, but
8 not limited to:
9 a. Enhanced victim and witness counseling services
10 that also provide crisis intervention, information referral,
11 transportation, and emergency financial assistance.
12 b. A well-publicized rewards program for the
13 apprehension and conviction of criminals who perpetrate
14 violent crimes.
15 7. Enhancing information sharing and assistance in the
16 criminal justice community by expanding the use of community
17 partnerships and community policing programs. Such expansion
18 may include the use of civilian employees or volunteers to
19 relieve law enforcement officers of clerical work in order to
20 enable the officers to concentrate on street visibility within
21 the community.
22 (b) Additionally, The council shall:
23 1. Receive periodic reports from Advise the executive
24 director on the creation of regional violent crime
25 investigation and statewide drug-control strategy
26 implementation coordinating teams related to violent crime
27 trends or investigative needs or successes in the regions, and
28 factors and trends relevant to the implementation of the
29 statewide drug strategy and the results of investigative
30 efforts funded in part by the council and relating to drug
31 control and illicit money laundering.
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1 2. Maintain and use Develop criteria for the
2 disbursement of funds from the Violent Crime Emergency and
3 Drug Control Strategy Implementation Account within the
4 Department of Law Enforcement Operating Trust Fund. Funding
5 from the council for any single investigative effort is
6 limited to a maximum of $100,000. No individual investigating
7 agency may receive more than $200,000 in council funding
8 during the agency's fiscal year.
9 3. Review and approve all requests for disbursement of
10 funds from the Violent Crime Emergency Account and Drug
11 Control Strategy Implementation within the Department of Law
12 Enforcement Operating Trust Fund. An expedited approval
13 procedure shall be established for rapid disbursement of funds
14 in violent crime emergency situations.
15 4. Advise the executive director on the development of
16 a statewide violent crime information system.
17 (5) REPORTS.--The council shall report annually on its
18 activities, on or before December 30 of each calendar year, to
19 the executive director, the President of the Senate, the
20 Speaker of the House of Representatives, and the chairs of the
21 Committees on Criminal Justice in both chambers. Comments and
22 responses of the executive director to the report are to be
23 included must respond to the annual report and any other
24 recommendations of the council in writing. All written
25 responses must be forwarded to the council members, the
26 President of the Senate, the Speaker of the House of
27 Representatives, and the chairs of the Committees on Criminal
28 Justice in both chambers.
29 (6) VICTIM AND WITNESS PROTECTION REVIEW COMMITTEE.--
30 (a) The Victim and Witness Protection Review Committee
31 is created within the Florida Violent Crime Council,
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1 consisting of the statewide prosecutor or a state attorney, a
2 sheriff, a chief of police, and the designee of the executive
3 director of the Department of Law Enforcement. The committee
4 shall be appointed from the membership of the council by the
5 chair of the council after the chair has consulted with the
6 executive director of the Department of Law Enforcement.
7 Committee members shall meet in conjunction with the meetings
8 of the council.
9 (b) The committee shall:
10 1. Maintain and use Develop criteria for disbursing
11 funds to reimburse law enforcement agencies for costs
12 associated with providing victim and witness protective or
13 temporary relocation services.
14 2. Review and approve or deny, in whole or in part,
15 all reimbursement requests submitted by law enforcement
16 agencies.
17 (c) The lead law enforcement agency providing victim
18 or witness protective or temporary relocation services
19 pursuant to the provisions of s. 914.25 may submit a request
20 for reimbursement to the Victim and Witness Protection Review
21 Committee in a format approved by the committee. The lead law
22 enforcement agency shall submit such reimbursement request on
23 behalf of all law enforcement agencies that cooperated in
24 providing protective or temporary relocation services related
25 to a particular criminal investigation or prosecution. As part
26 of the reimbursement request, the lead law enforcement agency
27 must indicate how any reimbursement proceeds will be
28 distributed among the agencies that provided protective or
29 temporary relocation services.
30 (d) The committee, in its discretion, may use funds
31 available to the committee to provide all or partial
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1 reimbursement to the lead law enforcement agency for such
2 costs, or may decline to provide any reimbursement.
3 (e) The committee may conduct its meeting by
4 teleconference or conference phone calls when the chair of the
5 committee finds that the need for reimbursement is such that
6 delaying until the next scheduled council meeting will
7 adversely affect the requesting agency's ability to provide
8 the protection services.
9 (7) CONFIDENTIALITY; EXEMPTED PORTIONS OF COUNCIL
10 MEETINGS AND RECORDS.--
11 (a)1. The Legislature finds that during limited
12 portions of the meetings of the Florida Violent Crime and Drug
13 Control Council it is necessary that the council be presented
14 with and discuss details, information, and documents related
15 to active criminal investigations or matters constituting
16 active criminal intelligence, as those concepts are defined by
17 s. 119.011. These presentations and discussions are necessary
18 for the council to make its funding decisions as required by
19 the Legislature. The Legislature finds that to reveal the
20 contents of documents containing active criminal investigative
21 or intelligence information or to allow active criminal
22 investigative or active criminal intelligence matters to be
23 discussed in a meeting open to the public negatively impacts
24 the ability of law enforcement agencies to efficiently
25 continue their investigative or intelligence gathering
26 activities. The Legislature finds that information coming
27 before the council that pertains to active criminal
28 investigations or intelligence should remain confidential and
29 exempt from public disclosure. The Legislature finds that the
30 Florida Violent Crime and Drug Control Council may, by
31 declaring only those portions of council meetings in which
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1 active criminal investigative or active criminal intelligence
2 information is to be presented or discussed closed to the
3 public, assure an appropriate balance between the policy of
4 this state that meetings be public and the policy of this
5 state to facilitate efficient law enforcement efforts.
6 2. The Legislature finds that it is a public necessity
7 that portions of the meetings of the Florida Violent Crime and
8 Drug Control Council be closed when the confidential details,
9 information, and documents related to active criminal
10 investigations or matters constituting active criminal
11 intelligence are discussed. The Legislature further finds
12 that it is no less a public necessity that portions of public
13 records generated at closed council meetings, such as tape
14 recordings, minutes, and notes, memorializing the discussions
15 regarding such confidential details, information, and
16 documents related to active criminal investigations or matters
17 constituting active criminal intelligence, also shall be held
18 confidential.
19 (b) The Florida Violent Crime and Drug Control Council
20 shall be considered a "criminal justice agency" within the
21 definition of s. 119.011(4).
22 (c)1. The Florida Violent Crime and Drug Control
23 Council may close portions of meetings during which the
24 council will hear or discuss active criminal investigative
25 information or active criminal intelligence information, and
26 such portions of meetings shall be exempt from the provisions
27 of s. 286.011 and s. 24(b), Art. I of the State Constitution,
28 provided that the following conditions are met:
29 a. The chair of the council shall advise the council
30 at a public meeting that, in connection with the performance
31 of a council duty, it is necessary that the council hear or
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1 discuss active criminal investigative information or active
2 criminal intelligence information.
3 b. The chair's declaration of necessity for closure
4 and the specific reasons for such necessity shall be stated in
5 writing in a document that shall be a public record and shall
6 be filed with the official records of the council.
7 b.c. The entire closed session shall be recorded. The
8 recording shall include the times of commencement and
9 termination of the closed session, all discussion and
10 proceedings, and the names of all persons present. No portion
11 of the session shall be off the record. Such recording shall
12 be maintained by the council, and is exempt from the
13 provisions of s. 119.07(1) and s. 24(a), Art. I of the State
14 Constitution until such time as the criminal investigative
15 information or criminal intelligence information that
16 justifies closure ceases to be active, at which time the
17 portion of the record related to the no longer active
18 information or intelligence shall be open for public
19 inspection and copying.
20
21 The exemption in this paragraph is subject to the Open
22 Government Sunset Review Act of 1995 in accordance with s.
23 119.15 and shall stand repealed on October 2, 2002, unless
24 reviewed and saved from repeal through reenactment by the
25 Legislature.
26 2. Only members of the council, Department of Law
27 Enforcement staff supporting the council's function, and other
28 persons whose presence has been authorized by the chair of the
29 council shall be allowed to attend the exempted portions of
30 the council meetings. The council shall assure that any
31 closure of its meetings as authorized by this section is
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1 limited so that the general policy of this state in favor of
2 public meetings is maintained.
3 (d) Those portions of any public record, such as a
4 tape recording, minutes, and notes, generated during that
5 portion of a Florida Violent Crime and Drug Control Council
6 meeting which is closed to the public pursuant to this
7 section, which contain information relating to active criminal
8 investigations or matters constituting active criminal
9 intelligence, are confidential and exempt from the provisions
10 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
11 until such criminal investigative information or criminal
12 intelligence information ceases to be active. The exemptions
13 in this paragraph are subject to the Open Government Sunset
14 Review Act of 1995 in accordance with s. 119.15 and shall
15 stand repealed on October 2, 2002, unless reviewed and saved
16 from repeal through reenactment by the Legislature.
17 Section 2. Section 943.042, Florida Statutes, is
18 amended to read:
19 943.042 Violent Crime Emergency and Drug Control
20 Strategy Implementation Account within the Department of Law
21 Enforcement Operating Trust Fund.--
22 (1) There is created a Violent Crime Emergency and
23 Drug Control Strategy Implementation Account within the
24 Department of Law Enforcement Operating Trust Fund. The
25 account shall be used to provide emergency supplemental funds
26 to:
27 (a) State and local law enforcement agencies which are
28 involved in complex and lengthy violent crime investigations
29 or multi-agency or statewide investigations or task force
30 efforts relating to illicit money laundering and drug control
31 which significantly contribute to achieving the state's goal
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1 of reducing drug-related crime as articulated by the Office of
2 Drug Control, which represent a significant investigative
3 effort relating to illicit money laundering, or which
4 otherwise significantly support statewide strategies developed
5 by the Statewide Drug Policy Advisory Council established
6 under s. 397.333;
7 (b) State and local law enforcement agencies which are
8 involved in violent crime investigations which constitute a
9 significant emergency within the state; or
10 (c) Counties which demonstrate a significant hardship
11 or an inability to cover extraordinary expenses associated
12 with a violent crime trial.
13 (2) In consultation with the Florida Violent Crime and
14 Drug Control Council, the department must maintain promulgate
15 rules which, at minimum, address the following:
16 (a) Criteria for determining what constitutes a
17 complex and lengthy violent crime investigation for the
18 purpose of this section.
19 (b) Criteria for determining those violent crime
20 investigations which constitute a significant emergency within
21 the state for the purpose of this section.
22 (c) Criteria for determining the circumstances under
23 which counties may receive emergency supplemental funds for
24 extraordinary expenses associated with a violent crime trial
25 under this section.
26 (d) Guidelines which establish a $100,000 maximum
27 limit limits on the amount that may be disbursed on a single
28 investigation and a $200,000 maximum limit on funds that may
29 be provided to a single agency during the agency's fiscal
30 year.
31
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1 (e) Procedures for law enforcement agencies to use
2 when applying for funds, including certification by the head
3 of the agency that a request complies with the requirements
4 established by the council.
5 (f) Annual evaluation and audit of the trust fund.
6 (3) With regard to the funding of investigations or
7 task force efforts relating to illicit money-laundering or
8 drug control, the department must adopt rules that, at a
9 minimum, address the following:
10 (a) Criteria for determining what constitutes a
11 multi-agency or statewide investigation or task force effort
12 relating to illicit money laundering or drug control eligible
13 to seek funding under this section.
14 (b) Criteria for determining whether a multi-agency or
15 statewide investigation or task force effort significantly
16 contributes to achieving the state's goals and strategies.
17 (c) Limitations upon the amount that may be disbursed
18 yearly to a single multi-agency or statewide illicit
19 money-laundering or drug-control investigation or task force.
20 (d) Procedures to use when applying for funds,
21 including a required designation of the amount of matching
22 funds being provided by the task force or participating
23 agencies and a signed commitment by the head of each agency
24 seeking funds that funds so designated will be used as
25 represented if council funding is provided.
26 (e) Requirements to expend council-provided funds in
27 the manner authorized by the council and a method of
28 accounting for the receipt, use, and disbursement of any funds
29 expended in money-laundering or drug-control investigative or
30 task force efforts funded in part under the authority of this
31 section.
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1 (f) Requirements for reporting by recipient agencies
2 of the performance and accomplishments secured by the
3 investigative or task-force efforts, including a requirement
4 that the reports demonstrate how the state's drug-control
5 goals and strategies have been promoted by the efforts and how
6 other investigative goals have been met, including arrests due
7 to such efforts, results of prosecutions based on such
8 arrests, impact upon organized criminal enterprise structures
9 by reason of efforts, property or currency seizures made,
10 illicit money-laundering operations disrupted or otherwise
11 impacted, forfeiture of assets by reason of such efforts, and
12 anticipated or actual use of assets received by reason of a
13 forfeiture based in whole or in part upon an investigation
14 funded in whole or in part by council funds.
15 (4)(a)(3)(a) Except as allowed in this section, a
16 disbursement from for the Violent Crime Emergency and Drug
17 Control Strategy Implementation Account shall not be used to
18 supplant existing appropriations of state and local law
19 enforcement agencies and counties or to otherwise fund
20 expenditures that are ordinarily or reasonably predictable for
21 the operation of a state or local law enforcement agency.
22 (b) The moneys placed in the account shall consist of
23 appropriations from the Legislature or moneys received from
24 any other public or private source. Any local law enforcement
25 agency that acquires funds pursuant to the Florida Contraband
26 Forfeiture Act is authorized to donate a portion of such funds
27 to the account.
28 (c) Upon a finding by a majority of the members of the
29 council, any unexcused failure by recipient agencies or task
30 forces to use funds in the manner authorized by this section
31 and the Florida Violent Crime and Drug Control Council or to
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1 timely provide required accounting, reports, or other
2 information requested by the council or by the department
3 related to funding requested or provided, shall:
4 1. Constitute a basis for a demand by the council for
5 the immediate return of all or any portion of funds previously
6 provided to the recipient by the council;
7 2. Result in termination or limitation of any pending
8 funding by the council under this section
9
10 and may, upon specific direction of a majority of the council,
11 result in disqualification of the involved agencies or task
12 force from consideration of additional or future funding for
13 efforts as provided by this section for a period of not more
14 than 2 years following the council's action. The council, by
15 and through the department, is authorized to pursue any
16 collection remedies necessary if a recipient agency fails to
17 return funds as demanded.
18 Section 3. Section 943.0582, Florida Statutes, is
19 created to read:
20 943.0582 Expunction of record following completion of
21 prearrest, postarrest, or teen court diversion program.--
22 (1) Notwithstanding any law dealing generally with the
23 preservation and destruction of public records, the department
24 may provide, by rule adopted pursuant to chapter 120, for the
25 expunction of any nonjudicial record of the arrest of a minor
26 who has successfully completed a prearrest or postarrest
27 diversion program for minors as authorized by s. 985.3065.
28 (2) As used in this section, the term "expunction" has
29 the same meaning ascribed in s. 943.0585, except that:
30 (a) The provisions of s. 943.0585(4)(a) do not apply
31 except that the criminal history record of a person whose
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1 record is expunged pursuant to this section must be made
2 available only to criminal justice agencies for the purpose of
3 determining eligibility for prearrest, postarrest, or teen
4 court diversion programs; when the record is sought as part of
5 a criminal investigation; or when the subject of the record is
6 a candidate for employment with a criminal justice agency.
7 For all other purposes, a person whose record is expunged
8 pursuant to this section may lawfully deny or fail to
9 acknowledge the arrest or charge covered by the expunged
10 record.
11 (b) Records maintained by local criminal justice
12 agencies in the county in which the arrest occurred which are
13 eligible for expunction pursuant to this section must be
14 sealed as the term is used in s. 943.059.
15
16 As used in this section, the term "nonviolent misdemeanor"
17 includes simple assault or battery when prearrest or
18 postarrest diversion expunction is approved in writing by the
19 state attorney for the county in which the arrest occurred.
20 (3) The department shall expunge the nonjudicial
21 arrest record of a minor who has successfully completed a
22 prearrest or postarrest diversion program if that minor:
23 (a) Submits an application for prearrest or postarrest
24 diversion expunction, on a form prescribed by the department,
25 signed by the minor's parent or legal guardian, or by the
26 minor if he or she has reached the age of majority at the time
27 of applying;
28 (b) Submits the application for prearrest or
29 postarrest diversion expunction no later than 6 months after
30 completion of the diversion program;
31
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1 (c) Submits to the department, with the application,
2 an official written statement from the state attorney for the
3 county in which the arrest occurred certifying that he or she
4 has successfully completed that county's prearrest or
5 postarrest diversion program and that participation in the
6 program is strictly limited to minors arrested for a
7 nonviolent misdemeanor who have not otherwise been charged
8 with or found to have committed any criminal offense or
9 comparable ordinance violation;
10 (d) Participated in a prearrest or postarrest
11 diversion program that expressly authorizes or permits such
12 expunction to occur;
13 (e) Participated in a prearrest or postarrest
14 diversion program based on an arrest for a nonviolent
15 misdemeanor that would not qualify as an act of domestic
16 violence as defined in s. 741.28; and
17 (f) Has never, prior to filing the application for
18 expunction, been charged with or found to have committed any
19 criminal offense or comparable ordinance violation.
20 (4) The department may charge a $75 processing fee for
21 each request received for prearrest or postarrest diversion
22 program expunction, for placement in the Department of Law
23 Enforcement Operating Trust Fund, unless such fee is waived by
24 the executive director.
25 (5) This section shall operate retroactively to permit
26 the expunction of any nonjudicial record of the arrest of a
27 minor who has successfully completed a prearrest or postarrest
28 diversion program on or after July 1, 2000, provided that, in
29 the case of a minor whose completion of the program occurred
30 before the effective date of this section, the application for
31
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1 prearrest or postarrest diversion expunction is submitted by
2 January 1, 2002.
3 (6) Expunction or sealing granted under this section
4 does not preclude the minor who receives such relief from
5 petitioning for the expunction or sealing of a later
6 criminal-history record as provided for in ss. 943.0585 and
7 943.059, if he or she is otherwise eligible under those
8 sections.
9 Section 4. Section 985.3065, Florida Statutes, is
10 amended to read:
11 985.3065 Prearrest or postarrest diversion programs.--
12 (1) A law enforcement agency or school district, in
13 cooperation with the state attorney, may establish a prearrest
14 or postarrest diversion program.
15 (2) As part of the prearrest or postarrest diversion
16 program, a child who is alleged to have committed a delinquent
17 act may be required to surrender his or her driver's license,
18 or refrain from applying for a driver's license, for not more
19 than 90 days. If the child fails to comply with the
20 requirements of the program, the state attorney may notify the
21 Department of Highway Safety and Motor Vehicles in writing to
22 suspend the child's driver's license for a period that may not
23 exceed 90 days.
24 (3) The prearrest or postarrest diversion program may,
25 upon agreement of the agencies that establish the program,
26 provide for the expunction of the nonjudicial arrest record of
27 a minor who successfully completes such a program pursuant to
28 s. 943.0582.
29 Section 5. Section 943.0585, Florida Statutes, is
30 amended to read:
31
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1 943.0585 Court-ordered expunction of criminal history
2 records.--The courts of this state have jurisdiction over
3 their own procedures, including the maintenance, expunction,
4 and correction of judicial records containing criminal history
5 information to the extent such procedures are not inconsistent
6 with the conditions, responsibilities, and duties established
7 by this section. Any court of competent jurisdiction may
8 order a criminal justice agency to expunge the criminal
9 history record of a minor or an adult who complies with the
10 requirements of this section. The court shall not order a
11 criminal justice agency to expunge a criminal history record
12 until the person seeking to expunge a criminal history record
13 has applied for and received a certificate of eligibility for
14 expunction pursuant to subsection (2). A criminal history
15 record that relates to a violation of s. 787.025, chapter 794,
16 s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,
17 chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
18 893.135, or a violation enumerated in s. 907.041 may not be
19 expunged, without regard to whether adjudication was withheld,
20 if the defendant was found guilty of or pled guilty or nolo
21 contendere to the offense, or if the defendant, as a minor,
22 was found to have committed, or pled guilty or nolo contendere
23 to committing, the offense as a delinquent act. The court may
24 only order expunction of a criminal history record pertaining
25 to one arrest or one incident of alleged criminal activity,
26 except as provided in this section. The court may, at its sole
27 discretion, order the expunction of a criminal history record
28 pertaining to more than one arrest if the additional arrests
29 directly relate to the original arrest. If the court intends
30 to order the expunction of records pertaining to such
31 additional arrests, such intent must be specified in the
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1 order. A criminal justice agency may not expunge any record
2 pertaining to such additional arrests if the order to expunge
3 does not articulate the intention of the court to expunge a
4 record pertaining to more than one arrest. This section does
5 not prevent the court from ordering the expunction of only a
6 portion of a criminal history record pertaining to one arrest
7 or one incident of alleged criminal activity. Notwithstanding
8 any law to the contrary, a criminal justice agency may comply
9 with laws, court orders, and official requests of other
10 jurisdictions relating to expunction, correction, or
11 confidential handling of criminal history records or
12 information derived therefrom. This section does not confer
13 any right to the expunction of any criminal history record,
14 and any request for expunction of a criminal history record
15 may be denied at the sole discretion of the court.
16 (1) PETITION TO EXPUNGE A CRIMINAL HISTORY
17 RECORD.--Each petition to a court to expunge a criminal
18 history record is complete only when accompanied by:
19 (a) A certificate of eligibility for expunction issued
20 by the department pursuant to subsection (2).
21 (b) The petitioner's sworn statement attesting that
22 the petitioner:
23 1. Has never, prior to the date on which the petition
24 is filed, been adjudicated guilty of a criminal offense or
25 comparable ordinance violation or adjudicated delinquent for
26 committing a felony or a misdemeanor specified in s.
27 943.051(3)(b).
28 2. Has not been adjudicated guilty of, or adjudicated
29 delinquent for committing, any of the acts stemming from the
30 arrest or alleged criminal activity to which the petition
31 pertains.
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1 3. Has never secured a prior sealing or expunction of
2 a criminal history record under this section, former s.
3 893.14, former s. 901.33, or former s. 943.058, or from any
4 jurisdiction outside the state.
5 4. Is eligible for such an expunction to the best of
6 his or her knowledge or belief and does not have any other
7 petition to expunge or any petition to seal pending before any
8 court.
9
10 Any person who knowingly provides false information on such
11 sworn statement to the court commits a felony of the third
12 degree, punishable as provided in s. 775.082, s. 775.083, or
13 s. 775.084.
14 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior
15 to petitioning the court to expunge a criminal history record,
16 a person seeking to expunge a criminal history record shall
17 apply to the department for a certificate of eligibility for
18 expunction. The department shall, by rule adopted pursuant to
19 chapter 120, establish procedures pertaining to the
20 application for and issuance of certificates of eligibility
21 for expunction. The department shall issue a certificate of
22 eligibility for expunction to a person who is the subject of a
23 criminal history record if that person:
24 (a) Has obtained, and submitted to the department, a
25 written, certified statement from the appropriate state
26 attorney or statewide prosecutor which indicates:
27 1. That an indictment, information, or other charging
28 document was not filed or issued in the case.
29 2. That an indictment, information, or other charging
30 document, if filed or issued in the case, was dismissed or
31
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1 nolle prosequi by the state attorney or statewide prosecutor,
2 or was dismissed by a court of competent jurisdiction.
3 3. That the criminal history record does not relate to
4 a violation of s. 787.025, chapter 794, s. 796.03, s. 800.04,
5 s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133,
6 s. 847.0135, s. 847.0145, s. 893.135, or a violation
7 enumerated in s. 907.041, where the defendant was found guilty
8 of, or pled guilty or nolo contendere to any such offense, or
9 that the defendant, as a minor, was found to have committed,
10 or pled guilty or nolo contendere to committing, such an
11 offense as a delinquent act, without regard to whether
12 adjudication was withheld.
13 (b) Remits a $75 processing fee to the department for
14 placement in the Department of Law Enforcement Operating Trust
15 Fund, unless such fee is waived by the executive director.
16 (c) Has submitted to the department a certified copy
17 of the disposition of the charge to which the petition to
18 expunge pertains.
19 (d) Has never, prior to the date on which the
20 application for a certificate of eligibility is filed, been
21 adjudicated guilty of a criminal offense or comparable
22 ordinance violation or adjudicated delinquent for committing a
23 felony or a misdemeanor specified in s. 943.051(3)(b).
24 (e) Has not been adjudicated guilty of, or adjudicated
25 delinquent for committing, any of the acts stemming from the
26 arrest or alleged criminal activity to which the petition to
27 expunge pertains.
28 (f) Has never secured a prior sealing or expunction of
29 a criminal history record under this section, former s.
30 893.14, former s. 901.33, or former s. 943.058.
31
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1 (g) Is no longer under court supervision applicable to
2 the disposition of the arrest or alleged criminal activity to
3 which the petition to expunge pertains.
4 (h) Is not required to wait a minimum of 10 years
5 prior to being eligible for an expunction of such records
6 because all charges related to the arrest or criminal activity
7 to which the petition to expunge pertains were dismissed prior
8 to trial, adjudication, or the withholding of adjudication.
9 Otherwise, such criminal history record must be sealed under
10 this section, former s. 893.14, former s. 901.33, or former s.
11 943.058 for at least 10 years before such record is eligible
12 for expunction.
13 (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
14 (a) In judicial proceedings under this section, a copy
15 of the completed petition to expunge shall be served upon the
16 appropriate state attorney or the statewide prosecutor and
17 upon the arresting agency; however, it is not necessary to
18 make any agency other than the state a party. The appropriate
19 state attorney or the statewide prosecutor and the arresting
20 agency may respond to the court regarding the completed
21 petition to expunge.
22 (b) If relief is granted by the court, the clerk of
23 the court shall certify copies of the order to the appropriate
24 state attorney or the statewide prosecutor and the arresting
25 agency. The arresting agency is responsible for forwarding the
26 order to any other agency to which the arresting agency
27 disseminated the criminal history record information to which
28 the order pertains. The department shall forward the order to
29 expunge to the Federal Bureau of Investigation. The clerk of
30 the court shall certify a copy of the order to any other
31
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1 agency which the records of the court reflect has received the
2 criminal history record from the court.
3 (c) For an order to expunge entered by a court prior
4 to July 1, 1992, the department shall notify the appropriate
5 state attorney or statewide prosecutor of an order to expunge
6 which is contrary to law because the person who is the subject
7 of the record has previously been convicted of a crime or
8 comparable ordinance violation or has had a prior criminal
9 history record sealed or expunged. Upon receipt of such
10 notice, the appropriate state attorney or statewide prosecutor
11 shall take action, within 60 days, to correct the record and
12 petition the court to void the order to expunge. The
13 department shall seal the record until such time as the order
14 is voided by the court.
15 (d) On or after July 1, 1992, the department or any
16 other criminal justice agency is not required to act on an
17 order to expunge entered by a court when such order does not
18 comply with the requirements of this section. Upon receipt of
19 such an order, the department must notify the issuing court,
20 the appropriate state attorney or statewide prosecutor, the
21 petitioner or the petitioner's attorney, and the arresting
22 agency of the reason for noncompliance. The appropriate state
23 attorney or statewide prosecutor shall take action within 60
24 days to correct the record and petition the court to void the
25 order. No cause of action, including contempt of court, shall
26 arise against any criminal justice agency for failure to
27 comply with an order to expunge when the petitioner for such
28 order failed to obtain the certificate of eligibility as
29 required by this section or such order does not otherwise
30 comply with the requirements of this section.
31
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1 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
2 criminal history record of a minor or an adult which is
3 ordered expunged by a court of competent jurisdiction pursuant
4 to this section must be physically destroyed or obliterated by
5 any criminal justice agency having custody of such record;
6 except that any criminal history record in the custody of the
7 department must be retained in all cases. A criminal history
8 record ordered expunged that is retained by the department is
9 confidential and exempt from the provisions of s. 119.07(1)
10 and s. 24(a), Art. I of the State Constitution and not
11 available to any person or entity except upon order of a court
12 of competent jurisdiction. A criminal justice agency may
13 retain a notation indicating compliance with an order to
14 expunge.
15 (a) The person who is the subject of a criminal
16 history record that is expunged under this section or under
17 other provisions of law, including former s. 893.14, former s.
18 901.33, and former s. 943.058, may lawfully deny or fail to
19 acknowledge the arrests covered by the expunged record, except
20 when the subject of the record:
21 1. Is a candidate for employment with a criminal
22 justice agency;
23 2. Is a defendant in a criminal prosecution;
24 3. Concurrently or subsequently petitions for relief
25 under this section or s. 943.059;
26 4. Is a candidate for admission to The Florida Bar;
27 5. Is seeking to be employed or licensed by or to
28 contract with the Department of Children and Family Services
29 or the Department of Juvenile Justice or to be employed or
30 used by such contractor or licensee in a sensitive position
31 having direct contact with children, the developmentally
27
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1 disabled, the aged, or the elderly as provided in s.
2 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.
3 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
4 985.407, or chapter 400; or
5 6. Is seeking to be employed or licensed by the Office
6 of Teacher Education, Certification, Staff Development, and
7 Professional Practices of the Department of Education, any
8 district school board, or any local governmental entity that
9 licenses child care facilities.
10 (b) Subject to the exceptions in paragraph (a), a
11 person who has been granted an expunction under this section,
12 former s. 893.14, former s. 901.33, or former s. 943.058 may
13 not be held under any provision of law of this state to commit
14 perjury or to be otherwise liable for giving a false statement
15 by reason of such person's failure to recite or acknowledge an
16 expunged criminal history record.
17 (c) Information relating to the existence of an
18 expunged criminal history record which is provided in
19 accordance with paragraph (a) is confidential and exempt from
20 the provisions of s. 119.07(1) and s. 24(a), Art. I of the
21 State Constitution, except that the department shall disclose
22 the existence of a criminal history record ordered expunged to
23 the entities set forth in subparagraphs (a)1., 4., 5., and 6.
24 for their respective licensing and employment purposes, and to
25 criminal justice agencies for their respective criminal
26 justice purposes. It is unlawful for any employee of an
27 entity set forth in subparagraph (a)1., subparagraph (a)4.,
28 subparagraph (a)5., or subparagraph (a)6. to disclose
29 information relating to the existence of an expunged criminal
30 history record of a person seeking employment or licensure
31 with such entity or contractor, except to the person to whom
28
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1 the criminal history record relates or to persons having
2 direct responsibility for employment or licensure decisions.
3 Any person who violates this paragraph commits a misdemeanor
4 of the first degree, punishable as provided in s. 775.082 or
5 s. 775.083.
6 (5) STATUTORY REFERENCES.--Any reference to any other
7 chapter, section, or subdivision of the Florida Statutes in
8 this section constitutes a general reference under the
9 doctrine of incorporation by reference.
10 Section 6. Section 943.059, Florida Statutes, is
11 amended to read:
12 943.059 Court-ordered sealing of criminal history
13 records.--The courts of this state shall continue to have
14 jurisdiction over their own procedures, including the
15 maintenance, sealing, and correction of judicial records
16 containing criminal history information to the extent such
17 procedures are not inconsistent with the conditions,
18 responsibilities, and duties established by this section. Any
19 court of competent jurisdiction may order a criminal justice
20 agency to seal the criminal history record of a minor or an
21 adult who complies with the requirements of this section. The
22 court shall not order a criminal justice agency to seal a
23 criminal history record until the person seeking to seal a
24 criminal history record has applied for and received a
25 certificate of eligibility for sealing pursuant to subsection
26 (2). A criminal history record that relates to a violation of
27 s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.
28 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,
29 s. 847.0145, s. 893.135, or a violation enumerated in s.
30 907.041 may not be sealed, without regard to whether
31 adjudication was withheld, if the defendant was found guilty
29
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1 of or pled guilty or nolo contendere to the offense, or if the
2 defendant, as a minor, was found to have committed or pled
3 guilty or nolo contendere to committing the offense as a
4 delinquent act. The court may only order sealing of a
5 criminal history record pertaining to one arrest or one
6 incident of alleged criminal activity, except as provided in
7 this section. The court may, at its sole discretion, order the
8 sealing of a criminal history record pertaining to more than
9 one arrest if the additional arrests directly relate to the
10 original arrest. If the court intends to order the sealing of
11 records pertaining to such additional arrests, such intent
12 must be specified in the order. A criminal justice agency may
13 not seal any record pertaining to such additional arrests if
14 the order to seal does not articulate the intention of the
15 court to seal records pertaining to more than one arrest.
16 This section does not prevent the court from ordering the
17 sealing of only a portion of a criminal history record
18 pertaining to one arrest or one incident of alleged criminal
19 activity. Notwithstanding any law to the contrary, a criminal
20 justice agency may comply with laws, court orders, and
21 official requests of other jurisdictions relating to sealing,
22 correction, or confidential handling of criminal history
23 records or information derived therefrom. This section does
24 not confer any right to the sealing of any criminal history
25 record, and any request for sealing a criminal history record
26 may be denied at the sole discretion of the court.
27 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
28 petition to a court to seal a criminal history record is
29 complete only when accompanied by:
30 (a) A certificate of eligibility for sealing issued by
31 the department pursuant to subsection (2).
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1 (b) The petitioner's sworn statement attesting that
2 the petitioner:
3 1. Has never, prior to the date on which the petition
4 is filed, been adjudicated guilty of a criminal offense or
5 comparable ordinance violation or adjudicated delinquent for
6 committing a felony or a misdemeanor specified in s.
7 943.051(3)(b).
8 2. Has not been adjudicated guilty of or adjudicated
9 delinquent for committing any of the acts stemming from the
10 arrest or alleged criminal activity to which the petition to
11 seal pertains.
12 3. Has never secured a prior sealing or expunction of
13 a criminal history record under this section, former s.
14 893.14, former s. 901.33, former s. 943.058, or from any
15 jurisdiction outside the state.
16 4. Is eligible for such a sealing to the best of his
17 or her knowledge or belief and does not have any other
18 petition to seal or any petition to expunge pending before any
19 court.
20
21 Any person who knowingly provides false information on such
22 sworn statement to the court commits a felony of the third
23 degree, punishable as provided in s. 775.082, s. 775.083, or
24 s. 775.084.
25 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
26 petitioning the court to seal a criminal history record, a
27 person seeking to seal a criminal history record shall apply
28 to the department for a certificate of eligibility for
29 sealing. The department shall, by rule adopted pursuant to
30 chapter 120, establish procedures pertaining to the
31 application for and issuance of certificates of eligibility
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1 for sealing. The department shall issue a certificate of
2 eligibility for sealing to a person who is the subject of a
3 criminal history record provided that such person:
4 (a) Has submitted to the department a certified copy
5 of the disposition of the charge to which the petition to seal
6 pertains.
7 (b) Remits a $75 processing fee to the department for
8 placement in the Department of Law Enforcement Operating Trust
9 Fund, unless such fee is waived by the executive director.
10 (c) Has never, prior to the date on which the
11 application for a certificate of eligibility is filed, been
12 adjudicated guilty of a criminal offense or comparable
13 ordinance violation or adjudicated delinquent for committing a
14 felony or a misdemeanor specified in s. 943.051(3)(b).
15 (d) Has not been adjudicated guilty of or adjudicated
16 delinquent for committing any of the acts stemming from the
17 arrest or alleged criminal activity to which the petition to
18 seal pertains.
19 (e) Has never secured a prior sealing or expunction of
20 a criminal history record under this section, former s.
21 893.14, former s. 901.33, or former s. 943.058.
22 (f) Is no longer under court supervision applicable to
23 the disposition of the arrest or alleged criminal activity to
24 which the petition to seal pertains.
25 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
26 (a) In judicial proceedings under this section, a copy
27 of the completed petition to seal shall be served upon the
28 appropriate state attorney or the statewide prosecutor and
29 upon the arresting agency; however, it is not necessary to
30 make any agency other than the state a party. The appropriate
31 state attorney or the statewide prosecutor and the arresting
32
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1 agency may respond to the court regarding the completed
2 petition to seal.
3 (b) If relief is granted by the court, the clerk of
4 the court shall certify copies of the order to the appropriate
5 state attorney or the statewide prosecutor and to the
6 arresting agency. The arresting agency is responsible for
7 forwarding the order to any other agency to which the
8 arresting agency disseminated the criminal history record
9 information to which the order pertains. The department shall
10 forward the order to seal to the Federal Bureau of
11 Investigation. The clerk of the court shall certify a copy of
12 the order to any other agency which the records of the court
13 reflect has received the criminal history record from the
14 court.
15 (c) For an order to seal entered by a court prior to
16 July 1, 1992, the department shall notify the appropriate
17 state attorney or statewide prosecutor of any order to seal
18 which is contrary to law because the person who is the subject
19 of the record has previously been convicted of a crime or
20 comparable ordinance violation or has had a prior criminal
21 history record sealed or expunged. Upon receipt of such
22 notice, the appropriate state attorney or statewide prosecutor
23 shall take action, within 60 days, to correct the record and
24 petition the court to void the order to seal. The department
25 shall seal the record until such time as the order is voided
26 by the court.
27 (d) On or after July 1, 1992, the department or any
28 other criminal justice agency is not required to act on an
29 order to seal entered by a court when such order does not
30 comply with the requirements of this section. Upon receipt of
31 such an order, the department must notify the issuing court,
33
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1 the appropriate state attorney or statewide prosecutor, the
2 petitioner or the petitioner's attorney, and the arresting
3 agency of the reason for noncompliance. The appropriate state
4 attorney or statewide prosecutor shall take action within 60
5 days to correct the record and petition the court to void the
6 order. No cause of action, including contempt of court, shall
7 arise against any criminal justice agency for failure to
8 comply with an order to seal when the petitioner for such
9 order failed to obtain the certificate of eligibility as
10 required by this section or when such order does not comply
11 with the requirements of this section.
12 (e) An order sealing a criminal history record
13 pursuant to this section does not require that such record be
14 surrendered to the court, and such record shall continue to be
15 maintained by the department and other criminal justice
16 agencies.
17 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A
18 criminal history record of a minor or an adult which is
19 ordered sealed by a court of competent jurisdiction pursuant
20 to this section is confidential and exempt from the provisions
21 of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
22 and is available only to the person who is the subject of the
23 record, to the subject's attorney, to criminal justice
24 agencies for their respective criminal justice purposes, or to
25 those entities set forth in subparagraphs (a)1., 4., 5., and
26 6. for their respective licensing and employment purposes.
27 (a) The subject of a criminal history record sealed
28 under this section or under other provisions of law, including
29 former s. 893.14, former s. 901.33, and former s. 943.058, may
30 lawfully deny or fail to acknowledge the arrests covered by
31 the sealed record, except when the subject of the record:
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1 1. Is a candidate for employment with a criminal
2 justice agency;
3 2. Is a defendant in a criminal prosecution;
4 3. Concurrently or subsequently petitions for relief
5 under this section or s. 943.0585;
6 4. Is a candidate for admission to The Florida Bar;
7 5. Is seeking to be employed or licensed by or to
8 contract with the Department of Children and Family Services
9 or the Department of Juvenile Justice or to be employed or
10 used by such contractor or licensee in a sensitive position
11 having direct contact with children, the developmentally
12 disabled, the aged, or the elderly as provided in s.
13 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.
14 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.
15 415.103, s. 985.407, or chapter 400; or
16 6. Is seeking to be employed or licensed by the Office
17 of Teacher Education, Certification, Staff Development, and
18 Professional Practices of the Department of Education, any
19 district school board, or any local governmental entity which
20 licenses child care facilities.
21 (b) Subject to the exceptions in paragraph (a), a
22 person who has been granted a sealing under this section,
23 former s. 893.14, former s. 901.33, or former s. 943.058 may
24 not be held under any provision of law of this state to commit
25 perjury or to be otherwise liable for giving a false statement
26 by reason of such person's failure to recite or acknowledge a
27 sealed criminal history record.
28 (c) Information relating to the existence of a sealed
29 criminal record provided in accordance with the provisions of
30 paragraph (a) is confidential and exempt from the provisions
31 of s. 119.07(1) and s. 24(a), Art. I of the State
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1 Constitution, except that the department shall disclose the
2 sealed criminal history record to the entities set forth in
3 subparagraphs (a)1., 4., 5., and 6. for their respective
4 licensing and employment purposes. It is unlawful for any
5 employee of an entity set forth in subparagraph (a)1.,
6 subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.
7 to disclose information relating to the existence of a sealed
8 criminal history record of a person seeking employment or
9 licensure with such entity or contractor, except to the person
10 to whom the criminal history record relates or to persons
11 having direct responsibility for employment or licensure
12 decisions. Any person who violates the provisions of this
13 paragraph commits a misdemeanor of the first degree,
14 punishable as provided in s. 775.082 or s. 775.083.
15 (5) STATUTORY REFERENCES.--Any reference to any other
16 chapter, section, or subdivision of the Florida Statutes in
17 this section constitutes a general reference under the
18 doctrine of incorporation by reference.
19 Section 7. Effective October 1, 2001, section 943.325,
20 Florida Statutes, is amended to read:
21 943.325 Blood specimen testing for DNA analysis.--
22 (1)(a) Any person who is convicted or was previously
23 convicted in this state for any offense or attempted offense
24 defined in chapter 794, chapter 800, s. 782.04, s. 784.045, s.
25 810.02, s. 812.133, or s. 812.135 or a similar offense in
26 another jurisdiction and who is either:
27 1. Still incarcerated, or
28 2. No longer incarcerated or, not having ever been
29 incarcerated, yet but is within the confines of the legal
30 state boundaries and is on probation, community control,
31
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1 parole, conditional release, control release, or any other
2 court-ordered supervision,
3
4 shall be required to submit two specimens of blood or other
5 biological specimens approved by the Department of Law
6 Enforcement to a Department of Law Enforcement designated
7 testing facility as directed by the department.
8 (b) For the purpose of this section, the term "any
9 person" shall include both juveniles and adults committed to
10 or under the supervision of the Department of Corrections or
11 the Department of Juvenile Justice or committed to a county
12 jail.
13 (2) The withdrawal of blood for purposes of this
14 section shall be performed in a medically approved manner
15 using a collection kit provided by, or accepted by, the
16 Department of Law Enforcement and only by or under the
17 supervision of a physician, registered nurse, licensed
18 practical nurse, or duly licensed medical personnel or other
19 trained and competent personnel. The collection of other
20 approved biological specimens shall be performed by any person
21 using a collection kit provided or accepted by the Department
22 of Law Enforcement in a manner approved by the department as
23 directed in the kit or as otherwise found to be acceptable by
24 the department.
25 (3) Upon a conviction of any person for any offense
26 under paragraph (1)(a) which results in the commitment of the
27 offender to a county jail, correctional facility, or juvenile
28 facility, the entity responsible for the facility shall assure
29 that the blood specimens or other biological specimens
30 required by this section and approved by the Department of Law
31 Enforcement are promptly secured and transmitted to the
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1 Department of Law Enforcement. If the person is not
2 incarcerated following such conviction, the person may not be
3 released from the custody of the court or released pursuant to
4 a bond or surety until the blood or other approved biological
5 specimens required by this section have been taken. The chief
6 judge of each circuit shall, in conjunction with the sheriff
7 or other entity that maintains the county jail, assure
8 implementation of a method to promptly collect required blood
9 or other approved biological specimens and forward the
10 specimens to the Department of Law Enforcement. The Department
11 of Law Enforcement, in conjunction with the sheriff, the
12 courts, the Department of Corrections, and the Department of
13 Juvenile Justice, shall develop a statewide protocol for
14 securing the blood or other approved biological specimens of
15 any person required to provide specimens under this section.
16 Personnel at the jail, correctional facility, or juvenile
17 facility shall implement the protocol as part of the regular
18 processing of offenders.
19 (4) If any blood or other approved biological
20 specimens submitted to the Department of Law Enforcement under
21 this section are found to be unacceptable for analysis and use
22 or cannot be used by the department in the manner required by
23 this section, the Department of Law Enforcement may require
24 that another set of blood or other approved biological
25 specimens be taken as set forth in subsection (11).
26 (5) The Department of Law Enforcement shall provide
27 the specimen vials, mailing tubes, labels, or other
28 appropriate containers and instructions for the collection of
29 blood or other approved biological specimens. The specimens
30 shall thereafter be forwarded to the designated testing
31 facility for analysis to determine genetic markers and
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1 characteristics for the purpose of individual identification
2 of the person submitting the sample.
3 (6) In addition to the specimens submitted by reason
4 of the mandated collection of specimens required by this
5 section, the Department of Law Enforcement may, at its option,
6 receive and use other blood or other approved biological
7 specimens. Any The analysis, when completed, shall be entered
8 into the automated database maintained by the Department of
9 Law Enforcement for such purpose as provided in this section,
10 and shall not be included in the state central criminal
11 justice information repository.
12 (7) The results of a DNA analysis and the comparison
13 of analytic results shall be released only to criminal justice
14 agencies as defined in s. 943.045(10), at the request of the
15 agency. Otherwise, such information is confidential and exempt
16 from the provisions of s. 119.07(1) and s. 24(a), Art. I of
17 the State Constitution.
18 (8) The Department of Law Enforcement and the
19 statewide criminal laboratory analysis system shall establish,
20 implement, and maintain a statewide automated personal
21 identification system capable of, but not limited to,
22 classifying, matching, and storing analyses of DNA
23 (deoxyribonucleic acid) and other biological molecules. The
24 system shall be available to all criminal justice agencies.
25 (9) The Department of Law Enforcement shall:
26 (a) Receive, process, and store blood and other
27 approved biological samples and the data derived therefrom
28 furnished pursuant to subsection (1) or pursuant to a
29 requirement of supervision imposed by the court or the Parole
30 Commission with respect to a person convicted of any offense
31 specified in subsection (1) or as specified in subsection (6).
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1 (b) Collect, process, maintain, and disseminate
2 information and records pursuant to this section.
3 (c) Strive to maintain or disseminate only accurate
4 and complete records.
5 (d) Adopt rules prescribing the proper procedure for
6 state and local law enforcement and correctional agencies to
7 collect and submit blood and other approved biological samples
8 pursuant to this section.
9 (10)(a) The court shall include in the judgment of
10 conviction for an offense specified in this section, or a
11 finding that a person described in subsection (1) violated a
12 condition of probation, community control, or any other
13 court-ordered supervision, an order stating that blood or
14 other approved biological specimens are required to be drawn
15 by the appropriate agency in a manner consistent with this
16 section and, unless the convicted person lacks the ability to
17 pay, the person shall reimburse the appropriate agency for the
18 cost of drawing and transmitting the blood or other approved
19 biological specimens to the Florida Department of Law
20 Enforcement. The reimbursement payment may be deducted from
21 any existing balance in the inmate's bank account. If the
22 account balance is insufficient to cover the cost of drawing
23 and transmitting the blood or other approved biological
24 specimens to the Florida Department of Law Enforcement, 50
25 percent of each deposit to the account must be withheld until
26 the total amount owed has been paid. If the judgment places
27 the convicted person on probation, community control, or any
28 other court-ordered supervision, the court shall order the
29 convicted person to submit to the drawing of the blood or
30 other approved biological specimens as a condition of the
31 probation, community control, or other court-ordered
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1 supervision. For the purposes of a person who is on
2 probation, community control, or any other court-ordered
3 supervision, the collection requirement must be based upon a
4 court order, or as otherwise provided by the person in the
5 absence of a court order. If the judgment sentences the
6 convicted person to time served, the court shall order the
7 convicted person to submit to the drawing of the blood or
8 other approved biological specimens as a condition of such
9 sentence.
10 (b) The appropriate agency shall cause the specimens
11 to be drawn or collected as soon as practical after conviction
12 but, in the case of any person ordered to serve a term of
13 incarceration as part of the sentence, the specimen shall be
14 drawn or collected as soon as practical after the receipt of
15 the convicted person by the custodial facility. For the
16 purpose of this section, the appropriate agency shall be the
17 Department of Corrections whenever the convicted person is
18 committed to the legal and physical custody of the department.
19 Conviction information contained in the offender information
20 system of the Department of Corrections shall be sufficient to
21 determine applicability under this section. The appropriate
22 agency shall be the sheriff or officer in charge of the county
23 correctional facility whenever the convicted person is placed
24 on probation, community control, or any other court-ordered
25 supervision or form of supervised release or is committed to
26 the legal and physical custody of a county correctional
27 facility.
28 (c) Any person previously convicted of an offense
29 specified in this section, or a crime which, if committed in
30 this state, would be an offense specified in this section, and
31 who is also subject to the registration requirement imposed by
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1 s. 775.13, shall be subject to the collection requirement of
2 this section when the appropriate agency described in this
3 section verifies the identification information of the person.
4 The collection requirement of this section does not apply to a
5 person as described in s. 775.13(5).
6 (d) For the purposes of this section, conviction shall
7 include a finding of guilty, or entry of a plea of nolo
8 contendere or guilty, regardless of adjudication or, in the
9 case of a juvenile, the finding of delinquency.
10 (e) If necessary, the state or local law enforcement
11 or correctional agency having authority over the person
12 subject to the sampling under this section shall assist in the
13 procedure. The law enforcement or correctional officer so
14 assisting may use reasonable force if necessary to require
15 such person to submit to the withdrawal of blood specimens or
16 the collection of other approved biological specimens. Any
17 such The withdrawal or collection shall be performed in a
18 reasonable manner. A hospital, clinical laboratory, medical
19 clinic, or similar medical institution; a physician, certified
20 paramedic, registered nurse, licensed practical nurse, or
21 other personnel authorized by a hospital to draw blood; a
22 licensed clinical laboratory director, supervisor,
23 technologist, or technician; or any other person who assists a
24 law enforcement officer is not civilly or criminally liable as
25 a result of withdrawing blood specimens according to accepted
26 medical standards when requested to do so by a law enforcement
27 officer or any personnel of a jail, correctional facility, or
28 juvenile detention facility, regardless of whether the
29 convicted person resisted the drawing of blood specimens. A
30 person other than the subject required to provide the
31 biological specimens who collects or assists in the collection
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1 of approved specimens other than blood is not civilly or
2 criminally liable if a collection kit provided or accepted by
3 the Department of Law Enforcement is used and the collection
4 is done in a manner approved by the department, as directed in
5 the kit, or is performed in an otherwise reasonable manner.
6 (f) If a judgment fails to order the convicted person
7 to submit to the drawing of the blood or collecting of other
8 approved biological specimens as mandated by this section, the
9 state attorney may seek an amended order from the sentencing
10 court mandating the submission of blood or other approved
11 biological specimens in compliance with this section. As an
12 alternative, the department, a state attorney, the Department
13 of Corrections, or any law enforcement agency may seek a court
14 order to secure the blood or other approved biological
15 specimens as authorized in subsection (11).
16 (11) If the Department of Law Enforcement determines
17 that a convicted person who is required to submit blood or
18 other approved biological specimens under this section has not
19 provided the specimens, the department, a state attorney, or
20 any law enforcement agency may apply to the circuit court for
21 an order that authorizes taking the convicted person into
22 custody for the purpose of securing the required specimens.
23 The court shall issue the order upon a showing of probable
24 cause. Following issuance of the order, the convicted person
25 shall be transported to a location acceptable to the agency
26 that has custody of the person, the blood or other approved
27 biological specimens shall be withdrawn or collected in a
28 reasonable manner, and the person shall be released if there
29 is no other reason to justify retaining the person in custody.
30 The agency that takes the convicted person into custody may,
31 but is not required to, transport the person back to the
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1 location where the person was taken into custody. An agency
2 acting under authority of an order under this section may, in
3 lieu of transporting the convicted person to a collection
4 site, secure the blood or other approved biological specimens
5 at the location of the convicted person in a reasonable
6 manner. If the convicted person resists providing the
7 specimens, reasonable force may be used to secure the
8 specimens, and any person using such force to secure the
9 specimens or reasonably assisting in the securing of the
10 specimens is not civilly or criminally liable for actions
11 taken.
12 (12) Unless the convicted person has been declared
13 indigent by the court, the convicted person shall pay the
14 actual costs of collecting the blood or other approved
15 biological specimens required under this section.
16 (13) If a court, a law enforcement agency, or the
17 Department of Law Enforcement fails to strictly comply with
18 this section or to abide by a statewide protocol for
19 collecting blood or other approved biological specimens, such
20 failure is not grounds for challenging the validity of the
21 collection or the use of a specimen, and evidence based upon
22 or derived from the collected blood or other approved
23 biological specimens may not be excluded by a court.
24 Section 8. Effective October 1, 2001, paragraph (a) of
25 subsection (2) of section 760.40, Florida Statutes, is amended
26 to read:
27 760.40 Genetic testing; informed consent;
28 confidentiality.--
29 (2)(a) Except for purposes of criminal prosecution,
30 except for purposes of determining paternity as provided in s.
31 742.12(1), and except for purposes of acquiring specimens from
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1 persons convicted of certain offenses or as otherwise provided
2 in s. 943.325, DNA analysis may be performed only with the
3 informed consent of the person to be tested, and the results
4 of such DNA analysis, whether held by a public or private
5 entity, are the exclusive property of the person tested, are
6 confidential, and may not be disclosed without the consent of
7 the person tested. Such information held by a public entity is
8 exempt from the provisions of s. 119.07(1) and s. 24(a), Art.
9 I of the State Constitution.
10 Section 9. Section 843.167, Florida Statutes, is
11 created to read:
12 843.167 Unlawful use of police communications;
13 enhanced penalties.--
14 (1) A person may not:
15 (a) Intercept any police radio communication by use of
16 a scanner or any other means for the purpose of using that
17 communication to assist in committing a crime or to escape
18 from or avoid detection, arrest, trial, conviction, or
19 punishment in connection with the commission of such crime.
20 (b) Divulge the existence, contents, substance,
21 purport, effect, or meaning of a police radio communication to
22 any person he or she knows to be a suspect in the commission
23 of a crime with the intent that the suspect may escape from or
24 avoid detection, arrest, trial, conviction, or punishment.
25 (2) Any person who is charged with a crime and who,
26 during the time such crime was committed, possessed or used a
27 police radio scanner or similar device capable of receiving
28 police radio transmissions is presumed to have violated
29 paragraph (1)(a).
30
31
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1 (3) The penalty for a crime that is committed by a
2 person who violates paragraph (1)(a) shall be enhanced as
3 follows:
4 (a) A misdemeanor of the second degree shall be
5 punished as if it were a misdemeanor of the first degree.
6 (b) A misdemeanor of the first degree shall be
7 punished as if it were a felony of the third degree.
8 (c) A felony of the third degree shall be punished as
9 if it were a felony of the second degree.
10 (d) A felony of the second degree shall be punished as
11 if it were a felony of the first degree.
12 (e) A felony of the first degree shall be punished as
13 if it were a life felony.
14 (4) Any person who violates paragraph (1)(b) commits a
15 misdemeanor of the first degree, punishable as provided in s.
16 775.082 or s. 775.083.
17 Section 10. Except as otherwise expressly provided in
18 this act, this act shall take effect July 1, 2001.
19
20 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
21 Senate Bill's 1864 and 2086
22
23 - Removes provisions in SB 2086 that included numerous
substantive law changes to reflect the transfer of the
24 Criminal Justice Program from the Department of
Community Affairs to the Department of Law Enforcement.
25
- Provides for expunction of any nonjudicial record of the
26 arrest of a minor who has successfully completed a
prearrest or postarrest diversion program for minors who
27 have been arrested for a nonviolent offense and who do
not have a prior criminal history.
28
- Provides for enhanced penalties and a misdemeanor
29 offense relating to unlawful interception of police
radio communications or the divulging of information
30 obtained from such communications.
31
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