Senate Bill sb0516

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2002                                   SB 516

    By Senator Smith





    5-560-02

  1                      A bill to be entitled

  2         An act relating to pretrial detention; amending

  3         s. 907.041, F.S.; redefining the term

  4         "dangerous crime" for purposes of provisions

  5         governing pretrial detention to include certain

  6         acts involving terrorism; prohibiting the court

  7         from releasing a defendant before trial without

  8         bond if the defendant is charged with an act of

  9         terrorism, making terroristic threats, or

10         obstructing the prosecution of terrorism;

11         providing certain exceptions; reenacting ss.

12         790.065(2)(c), 943.0585, 943.059, F.S.,

13         relating to the sale and delivery of firearms

14         and the court-ordered expunction and sealing of

15         criminal-history records, to incorporate the

16         amendment to s. 907.041, F.S., in references

17         thereto; providing an effective date.

18

19  Be It Enacted by the Legislature of the State of Florida:

20

21         Section 1.  Subsection (4) of section 907.041, Florida

22  Statutes, is amended to read:

23         907.041  Pretrial detention and release.--

24         (4)  PRETRIAL DETENTION.--

25         (a)  As used in this subsection, "dangerous crime"

26  means any of the following:

27         1.  Arson;

28         2.  Aggravated assault;

29         3.  Aggravated battery;

30         4.  Illegal use of explosives;

31         5.  Child abuse or aggravated child abuse;

                                  1

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1         6.  Abuse of an elderly person or disabled adult, or

  2  aggravated abuse of an elderly person or disabled adult;

  3         7.  Aircraft piracy Hijacking;

  4         8.  Kidnapping;

  5         9.  Homicide;

  6         10.  Manslaughter;

  7         11.  Sexual battery;

  8         12.  Robbery;

  9         13.  Carjacking;

10         14.  Lewd, lascivious, or indecent assault or act upon

11  or in presence of a child under the age of 16 years;

12         15.  Sexual activity with a child, who is 12 years of

13  age or older but less than 18 years of age, by or at

14  solicitation of person in familial or custodial authority;

15         16.  Burglary of a dwelling;

16         17.  Stalking and aggravated stalking;

17         18.  Act of domestic violence as defined in s. 741.28;

18  and

19         19.  Home-invasion robbery;

20         20.  An act of terrorism;

21         21.  Making terroristic threats;

22         22.  Obstructing the prosecution of terrorism; and

23         23.19.  Attempting or conspiring to commit any such

24  crime; and home-invasion robbery.

25         (b)  No person charged with a dangerous crime shall be

26  granted nonmonetary pretrial release at a first appearance

27  hearing; however, the court shall retain the discretion to

28  release an accused on electronic monitoring or on recognizance

29  bond if the findings on the record of facts and circumstances

30  warrant such a release.

31

                                  2

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1         (c)  The court may order pretrial detention if it finds

  2  a substantial probability, based on a defendant's past and

  3  present patterns of behavior, the criteria in s. 903.046, and

  4  any other relevant facts, that any of the following

  5  circumstances exists:

  6         1.  The defendant has previously violated conditions of

  7  release and that no further conditions of release are

  8  reasonably likely to assure the defendant's appearance at

  9  subsequent proceedings;

10         2.  The defendant, with the intent to obstruct the

11  judicial process, has threatened, intimidated, or injured any

12  victim, potential witness, juror, or judicial officer, or has

13  attempted or conspired to do so, and that no condition of

14  release will reasonably prevent the obstruction of the

15  judicial process;

16         3.  The defendant is charged with trafficking in

17  controlled substances as defined by s. 893.135, that there is

18  a substantial probability that the defendant has committed the

19  offense, and that no conditions of release will reasonably

20  assure the defendant's appearance at subsequent criminal

21  proceedings; or

22         4.  The defendant is charged with DUI manslaughter, as

23  defined by s. 316.193, and that there is a substantial

24  probability that the defendant committed the crime and that

25  the defendant poses a threat of harm to the community;

26  conditions that would support a finding by the court pursuant

27  to this subparagraph that the defendant poses a threat of harm

28  to the community include, but are not limited to, any of the

29  following:

30         a.  The defendant has previously been convicted of any

31  crime under s. 316.193, or of any crime in any other state or

                                  3

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  territory of the United States that is substantially similar

  2  to any crime under s. 316.193;

  3         b.  The defendant was driving with a suspended driver's

  4  license when the charged crime was committed; or

  5         c.  The defendant has previously been found guilty of,

  6  or has had adjudication of guilt withheld for, driving while

  7  the defendant's driver's license was suspended or revoked in

  8  violation of s. 322.34;

  9         5.  The defendant poses the threat of harm to the

10  community.  The court may so conclude, if it finds that the

11  defendant is presently charged with a dangerous crime, that

12  there is a substantial probability that the defendant

13  committed such crime, that the factual circumstances of the

14  crime indicate a disregard for the safety of the community,

15  and that there are no conditions of release reasonably

16  sufficient to protect the community from the risk of physical

17  harm to persons.

18         6.  The defendant was on probation, parole, or other

19  release pending completion of sentence or on pretrial release

20  for a dangerous crime at the time the current offense was

21  committed; or

22         7.  The defendant has violated one or more conditions

23  of pretrial release or bond for the offense currently before

24  the court and the violation, in the discretion of the court,

25  supports a finding that no conditions of release can

26  reasonably protect the community from risk of physical harm to

27  persons or assure the presence of the accused at trial.

28         (d)  When a person charged with a crime for which

29  pretrial detention could be ordered is arrested, the arresting

30  agency shall promptly notify the state attorney of the arrest

31

                                  4

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  and shall provide the state attorney with such information as

  2  the arresting agency has obtained relative to:

  3         1.  The nature and circumstances of the offense

  4  charged;

  5         2.  The nature of any physical evidence seized and the

  6  contents of any statements obtained from the defendant or any

  7  witness;

  8         3.  The defendant's family ties, residence, employment,

  9  financial condition, and mental condition; and

10         4.  The defendant's past conduct and present conduct,

11  including any record of convictions, previous flight to avoid

12  prosecution, or failure to appear at court proceedings.

13         (e)  When a person charged with a crime for which

14  pretrial detention could be ordered is arrested, the arresting

15  agency may detain such defendant, prior to the filing by the

16  state attorney of a motion seeking pretrial detention, for a

17  period not to exceed 24 hours.

18         (f)  The pretrial detention hearing shall be held

19  within 5 days of the filing by the state attorney of a

20  complaint to seek pretrial detention.  The defendant may

21  request a continuance.  No continuance shall be for longer

22  than 5 days unless there are extenuating circumstances. The

23  defendant may be detained pending the hearing.  The state

24  attorney shall be entitled to one continuance for good cause.

25         (g)  The state attorney has the burden of showing the

26  need for pretrial detention.

27         (h)  The defendant is entitled to be represented by

28  counsel, to present witnesses and evidence, and to

29  cross-examine witnesses.  The court may admit relevant

30  evidence without complying with the rules of evidence, but

31  evidence secured in violation of the United States

                                  5

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  Constitution or the Constitution of the State of Florida shall

  2  not be admissible.  No testimony by the defendant shall be

  3  admissible to prove guilt at any other judicial proceeding,

  4  but such testimony may be admitted in an action for perjury,

  5  based upon the defendant's statements made at the pretrial

  6  detention hearing, or for impeachment.

  7         (i)  The pretrial detention order of the court shall be

  8  based solely upon evidence produced at the hearing and shall

  9  contain findings of fact and conclusions of law to support it.

10  The order shall be made either in writing or orally on the

11  record. The court shall render its findings within 24 hours of

12  the pretrial detention hearing.

13         (j)  A defendant convicted at trial following the

14  issuance of a pretrial detention order shall have credited to

15  his or her sentence, if imprisonment is imposed, the time the

16  defendant was held under the order, pursuant to s. 921.161.

17         (k)  The defendant shall be entitled to dissolution of

18  the pretrial detention order whenever the court finds that a

19  subsequent event has eliminated the basis for detention.

20         Section 2.  For the purpose of incorporating the

21  amendment made by this act to section 907.041, Florida

22  Statutes, in a reference thereto, paragraph (c) of subsection

23  (2) of section 790.065, Florida Statutes, is reenacted to

24  read:

25         790.065  Sale and delivery of firearms.--

26         (2)  Upon receipt of a request for a criminal history

27  record check, the Department of Law Enforcement shall, during

28  the licensee's call or by return call, forthwith:

29         (c)1.  Review any records available to it to determine

30  whether the potential buyer or transferee has been indicted or

31  has had an information filed against her or him for an offense

                                  6

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  that is a felony under either state or federal law, or, as

  2  mandated by federal law, has had an injunction for protection

  3  against domestic violence entered against the potential buyer

  4  or transferee under s. 741.30, has had an injunction for

  5  protection against repeat violence entered against the

  6  potential buyer or transferee under s. 784.046, or has been

  7  arrested for a dangerous crime as specified in s.

  8  907.041(4)(a) or for any of the following enumerated offenses:

  9         a.  Criminal anarchy under ss. 876.01 and 876.02.

10         b.  Extortion under s. 836.05.

11         c.  Explosives violations under s. 552.22(1) and (2).

12         d.  Controlled substances violations under chapter 893.

13         e.  Resisting an officer with violence under s. 843.01.

14         f.  Weapons and firearms violations under this chapter.

15         g.  Treason under s. 876.32.

16         h.  Assisting self-murder under s. 782.08.

17         i.  Sabotage under s. 876.38.

18         j.  Stalking or aggravated stalking under s. 784.048.

19

20  If the review indicates any such indictment, information, or

21  arrest, the department shall provide to the licensee a

22  conditional nonapproval number.

23         2.  Within 24 working hours, the department shall

24  determine the disposition of the indictment, information, or

25  arrest and inform the licensee as to whether the potential

26  buyer is prohibited from receiving or possessing a firearm.

27  For purposes of this paragraph, "working hours" means the

28  hours from 8 a.m. to 5 p.m. Monday through Friday, excluding

29  legal holidays.

30         3.  The office of the clerk of court, at no charge to

31  the department, shall respond to any department request for

                                  7

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  data on the disposition of the indictment, information, or

  2  arrest as soon as possible, but in no event later than 8

  3  working hours.

  4         4.  The department shall determine as quickly as

  5  possible within the allotted time period whether the potential

  6  buyer is prohibited from receiving or possessing a firearm.

  7         5.  If the potential buyer is not so prohibited, or if

  8  the department cannot determine the disposition information

  9  within the allotted time period, the department shall provide

10  the licensee with a conditional approval number.

11         6.  If the buyer is so prohibited, the conditional

12  nonapproval number shall become a nonapproval number.

13         7.  The department shall continue its attempts to

14  obtain the disposition information and may retain a record of

15  all approval numbers granted without sufficient disposition

16  information.  If the department later obtains disposition

17  information which indicates:

18         a.  That the potential buyer is not prohibited from

19  owning a firearm, it shall treat the record of the transaction

20  in accordance with this section; or

21         b.  That the potential buyer is prohibited from owning

22  a firearm, it shall immediately revoke the conditional

23  approval number and notify local law enforcement.

24         8.  During the time that disposition of the indictment,

25  information, or arrest is pending and until the department is

26  notified by the potential buyer that there has been a final

27  disposition of the indictment, information, or arrest, the

28  conditional nonapproval number shall remain in effect.

29         Section 3.  For the purpose of incorporating the

30  amendment made by this act to section 907.041, Florida

31

                                  8

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  Statutes, in a reference thereto, section 943.0585, Florida

  2  Statutes, is reenacted to read:

  3         943.0585  Court-ordered expunction of criminal history

  4  records.--The courts of this state have jurisdiction over

  5  their own procedures, including the maintenance, expunction,

  6  and correction of judicial records containing criminal history

  7  information to the extent such procedures are not inconsistent

  8  with the conditions, responsibilities, and duties established

  9  by this section. Any court of competent jurisdiction may order

10  a criminal justice agency to expunge the criminal history

11  record of a minor or an adult who complies with the

12  requirements of this section. The court shall not order a

13  criminal justice agency to expunge a criminal history record

14  until the person seeking to expunge a criminal history record

15  has applied for and received a certificate of eligibility for

16  expunction pursuant to subsection (2). A criminal history

17  record that relates to a violation of s. 787.025, chapter 794,

18  s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071,

19  chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.

20  893.135, or a violation enumerated in s. 907.041 may not be

21  expunged, without regard to whether adjudication was withheld,

22  if the defendant was found guilty of or pled guilty or nolo

23  contendere to the offense, or if the defendant, as a minor,

24  was found to have committed, or pled guilty or nolo contendere

25  to committing, the offense as a delinquent act. The court may

26  only order expunction of a criminal history record pertaining

27  to one arrest or one incident of alleged criminal activity,

28  except as provided in this section. The court may, at its sole

29  discretion, order the expunction of a criminal history record

30  pertaining to more than one arrest if the additional arrests

31  directly relate to the original arrest. If the court intends

                                  9

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  to order the expunction of records pertaining to such

  2  additional arrests, such intent must be specified in the

  3  order. A criminal justice agency may not expunge any record

  4  pertaining to such additional arrests if the order to expunge

  5  does not articulate the intention of the court to expunge a

  6  record pertaining to more than one arrest. This section does

  7  not prevent the court from ordering the expunction of only a

  8  portion of a criminal history record pertaining to one arrest

  9  or one incident of alleged criminal activity. Notwithstanding

10  any law to the contrary, a criminal justice agency may comply

11  with laws, court orders, and official requests of other

12  jurisdictions relating to expunction, correction, or

13  confidential handling of criminal history records or

14  information derived therefrom. This section does not confer

15  any right to the expunction of any criminal history record,

16  and any request for expunction of a criminal history record

17  may be denied at the sole discretion of the court.

18         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

19  RECORD.--Each petition to a court to expunge a criminal

20  history record is complete only when accompanied by:

21         (a)  A certificate of eligibility for expunction issued

22  by the department pursuant to subsection (2).

23         (b)  The petitioner's sworn statement attesting that

24  the petitioner:

25         1.  Has never, prior to the date on which the petition

26  is filed, been adjudicated guilty of a criminal offense or

27  comparable ordinance violation or adjudicated delinquent for

28  committing a felony or a misdemeanor specified in s.

29  943.051(3)(b).

30         2.  Has not been adjudicated guilty of, or adjudicated

31  delinquent for committing, any of the acts stemming from the

                                  10

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  arrest or alleged criminal activity to which the petition

  2  pertains.

  3         3.  Has never secured a prior sealing or expunction of

  4  a criminal history record under this section, former s.

  5  893.14, former s. 901.33, or former s. 943.058, or from any

  6  jurisdiction outside the state.

  7         4.  Is eligible for such an expunction to the best of

  8  his or her knowledge or belief and does not have any other

  9  petition to expunge or any petition to seal pending before any

10  court.

11

12  Any person who knowingly provides false information on such

13  sworn statement to the court commits a felony of the third

14  degree, punishable as provided in s. 775.082, s. 775.083, or

15  s. 775.084.

16         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

17  to petitioning the court to expunge a criminal history record,

18  a person seeking to expunge a criminal history record shall

19  apply to the department for a certificate of eligibility for

20  expunction. The department shall, by rule adopted pursuant to

21  chapter 120, establish procedures pertaining to the

22  application for and issuance of certificates of eligibility

23  for expunction. The department shall issue a certificate of

24  eligibility for expunction to a person who is the subject of a

25  criminal history record if that person:

26         (a)  Has obtained, and submitted to the department, a

27  written, certified statement from the appropriate state

28  attorney or statewide prosecutor which indicates:

29         1.  That an indictment, information, or other charging

30  document was not filed or issued in the case.

31

                                  11

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1         2.  That an indictment, information, or other charging

  2  document, if filed or issued in the case, was dismissed or

  3  nolle prosequi by the state attorney or statewide prosecutor,

  4  or was dismissed by a court of competent jurisdiction.

  5         3.  That the criminal history record does not relate to

  6  a violation of s. 787.025, chapter 794, s. 796.03, s. 800.04,

  7  s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133,

  8  s. 847.0135, s. 847.0145, s. 893.135, or a violation

  9  enumerated in s. 907.041, where the defendant was found guilty

10  of, or pled guilty or nolo contendere to any such offense, or

11  that the defendant, as a minor, was found to have committed,

12  or pled guilty or nolo contendere to committing, such an

13  offense as a delinquent act, without regard to whether

14  adjudication was withheld.

15         (b)  Remits a $75 processing fee to the department for

16  placement in the Department of Law Enforcement Operating Trust

17  Fund, unless such fee is waived by the executive director.

18         (c)  Has submitted to the department a certified copy

19  of the disposition of the charge to which the petition to

20  expunge pertains.

21         (d)  Has never, prior to the date on which the

22  application for a certificate of eligibility is filed, been

23  adjudicated guilty of a criminal offense or comparable

24  ordinance violation or adjudicated delinquent for committing a

25  felony or a misdemeanor specified in s. 943.051(3)(b).

26         (e)  Has not been adjudicated guilty of, or adjudicated

27  delinquent for committing, any of the acts stemming from the

28  arrest or alleged criminal activity to which the petition to

29  expunge pertains.

30

31

                                  12

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1         (f)  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.

  4         (g)  Is no longer under court supervision applicable to

  5  the disposition of the arrest or alleged criminal activity to

  6  which the petition to expunge pertains.

  7         (h)  Is not required to wait a minimum of 10 years

  8  prior to being eligible for an expunction of such records

  9  because all charges related to the arrest or criminal activity

10  to which the petition to expunge pertains were dismissed prior

11  to trial, adjudication, or the withholding of adjudication.

12  Otherwise, such criminal history record must be sealed under

13  this section, former s. 893.14, former s. 901.33, or former s.

14  943.058 for at least 10 years before such record is eligible

15  for expunction.

16         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

17         (a)  In judicial proceedings under this section, a copy

18  of the completed petition to expunge shall be served upon the

19  appropriate state attorney or the statewide prosecutor and

20  upon the arresting agency; however, it is not necessary to

21  make any agency other than the state a party. The appropriate

22  state attorney or the statewide prosecutor and the arresting

23  agency may respond to the court regarding the completed

24  petition to expunge.

25         (b)  If relief is granted by the court, the clerk of

26  the court shall certify copies of the order to the appropriate

27  state attorney or the statewide prosecutor and the arresting

28  agency. The arresting agency is responsible for forwarding the

29  order to any other agency to which the arresting agency

30  disseminated the criminal history record information to which

31  the order pertains. The department shall forward the order to

                                  13

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  expunge to the Federal Bureau of Investigation. The clerk of

  2  the court shall certify a copy of the order to any other

  3  agency which the records of the court reflect has received the

  4  criminal history record from the court.

  5         (c)  For an order to expunge entered by a court prior

  6  to July 1, 1992, the department shall notify the appropriate

  7  state attorney or statewide prosecutor of an order to expunge

  8  which is contrary to law because the person who is the subject

  9  of the record has previously been convicted of a crime or

10  comparable ordinance violation or has had a prior criminal

11  history record sealed or expunged. Upon receipt of such

12  notice, the appropriate state attorney or statewide prosecutor

13  shall take action, within 60 days, to correct the record and

14  petition the court to void the order to expunge. The

15  department shall seal the record until such time as the order

16  is voided by the court.

17         (d)  On or after July 1, 1992, the department or any

18  other criminal justice agency is not required to act on an

19  order to expunge entered by a court when such order does not

20  comply with the requirements of this section. Upon receipt of

21  such an order, the department must notify the issuing court,

22  the appropriate state attorney or statewide prosecutor, the

23  petitioner or the petitioner's attorney, and the arresting

24  agency of the reason for noncompliance. The appropriate state

25  attorney or statewide prosecutor shall take action within 60

26  days to correct the record and petition the court to void the

27  order. No cause of action, including contempt of court, shall

28  arise against any criminal justice agency for failure to

29  comply with an order to expunge when the petitioner for such

30  order failed to obtain the certificate of eligibility as

31

                                  14

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  required by this section or such order does not otherwise

  2  comply with the requirements of this section.

  3         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

  4  criminal history record of a minor or an adult which is

  5  ordered expunged by a court of competent jurisdiction pursuant

  6  to this section must be physically destroyed or obliterated by

  7  any criminal justice agency having custody of such record;

  8  except that any criminal history record in the custody of the

  9  department must be retained in all cases. A criminal history

10  record ordered expunged that is retained by the department is

11  confidential and exempt from the provisions of s. 119.07(1)

12  and s. 24(a), Art. I of the State Constitution and not

13  available to any person or entity except upon order of a court

14  of competent jurisdiction. A criminal justice agency may

15  retain a notation indicating compliance with an order to

16  expunge.

17         (a)  The person who is the subject of a criminal

18  history record that is expunged under this section or under

19  other provisions of law, including former s. 893.14, former s.

20  901.33, and former s. 943.058, may lawfully deny or fail to

21  acknowledge the arrests covered by the expunged record, except

22  when the subject of the record:

23         1.  Is a candidate for employment with a criminal

24  justice agency;

25         2.  Is a defendant in a criminal prosecution;

26         3.  Concurrently or subsequently petitions for relief

27  under this section or s. 943.059;

28         4.  Is a candidate for admission to The Florida Bar;

29         5.  Is seeking to be employed or licensed by or to

30  contract with the Department of Children and Family Services

31  or the Department of Juvenile Justice or to be employed or

                                  15

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  used by such contractor or licensee in a sensitive position

  2  having direct contact with children, the developmentally

  3  disabled, the aged, or the elderly as provided in s.

  4  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

  5  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

  6  985.407, or chapter 400; or

  7         6.  Is seeking to be employed or licensed by the Office

  8  of Teacher Education, Certification, Staff Development, and

  9  Professional Practices of the Department of Education, any

10  district school board, or any local governmental entity that

11  licenses child care facilities.

12         (b)  Subject to the exceptions in paragraph (a), a

13  person who has been granted an expunction under this section,

14  former s. 893.14, former s. 901.33, or former s. 943.058 may

15  not be held under any provision of law of this state to commit

16  perjury or to be otherwise liable for giving a false statement

17  by reason of such person's failure to recite or acknowledge an

18  expunged criminal history record.

19         (c)  Information relating to the existence of an

20  expunged criminal history record which is provided in

21  accordance with paragraph (a) is confidential and exempt from

22  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

23  State Constitution, except that the department shall disclose

24  the existence of a criminal history record ordered expunged to

25  the entities set forth in subparagraphs (a)1., 4., 5., and 6.

26  for their respective licensing and employment purposes, and to

27  criminal justice agencies for their respective criminal

28  justice purposes. It is unlawful for any employee of an entity

29  set forth in subparagraph (a)1., subparagraph (a)4.,

30  subparagraph (a)5., or subparagraph (a)6. to disclose

31  information relating to the existence of an expunged criminal

                                  16

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  history record of a person seeking employment or licensure

  2  with such entity or contractor, except to the person to whom

  3  the criminal history record relates or to persons having

  4  direct responsibility for employment or licensure decisions.

  5  Any person who violates this paragraph commits a misdemeanor

  6  of the first degree, punishable as provided in s. 775.082 or

  7  s. 775.083.

  8         (5)  STATUTORY REFERENCES.--Any reference to any other

  9  chapter, section, or subdivision of the Florida Statutes in

10  this section constitutes a general reference under the

11  doctrine of incorporation by reference.

12         Section 4.  For the purpose of incorporating the

13  amendment made by this act to section 907.041, Florida

14  Statutes, in a reference thereto, section 943.059, Florida

15  Statutes, is reenacted to read:

16         943.059  Court-ordered sealing of criminal history

17  records.--The courts of this state shall continue to have

18  jurisdiction over their own procedures, including the

19  maintenance, sealing, and correction of judicial records

20  containing criminal history information to the extent such

21  procedures are not inconsistent with the conditions,

22  responsibilities, and duties established by this section. Any

23  court of competent jurisdiction may order a criminal justice

24  agency to seal the criminal history record of a minor or an

25  adult who complies with the requirements of this section. The

26  court shall not order a criminal justice agency to seal a

27  criminal history record until the person seeking to seal a

28  criminal history record has applied for and received a

29  certificate of eligibility for sealing pursuant to subsection

30  (2). A criminal history record that relates to a violation of

31  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

                                  17

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

  2  s. 847.0145, s. 893.135, or a violation enumerated in s.

  3  907.041 may not be sealed, without regard to whether

  4  adjudication was withheld, if the defendant was found guilty

  5  of or pled guilty or nolo contendere to the offense, or if the

  6  defendant, as a minor, was found to have committed or pled

  7  guilty or nolo contendere to committing the offense as a

  8  delinquent act. The court may only order sealing of a criminal

  9  history record pertaining to one arrest or one incident of

10  alleged criminal activity, except as provided in this section.

11  The court may, at its sole discretion, order the sealing of a

12  criminal history record pertaining to more than one arrest if

13  the additional arrests directly relate to the original arrest.

14  If the court intends to order the sealing of records

15  pertaining to such additional arrests, such intent must be

16  specified in the order. A criminal justice agency may not seal

17  any record pertaining to such additional arrests if the order

18  to seal does not articulate the intention of the court to seal

19  records pertaining to more than one arrest. This section does

20  not prevent the court from ordering the sealing of only a

21  portion of a criminal history record pertaining to one arrest

22  or one incident of alleged criminal activity. Notwithstanding

23  any law to the contrary, a criminal justice agency may comply

24  with laws, court orders, and official requests of other

25  jurisdictions relating to sealing, correction, or confidential

26  handling of criminal history records or information derived

27  therefrom. This section does not confer any right to the

28  sealing of any criminal history record, and any request for

29  sealing a criminal history record may be denied at the sole

30  discretion of the court.

31

                                  18

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

  2  petition to a court to seal a criminal history record is

  3  complete only when accompanied by:

  4         (a)  A certificate of eligibility for sealing issued by

  5  the department pursuant to subsection (2).

  6         (b)  The petitioner's sworn statement attesting that

  7  the petitioner:

  8         1.  Has never, prior to the date on which the petition

  9  is filed, been adjudicated guilty of a criminal offense or

10  comparable ordinance violation or adjudicated delinquent for

11  committing a felony or a misdemeanor specified in s.

12  943.051(3)(b).

13         2.  Has not been adjudicated guilty of or adjudicated

14  delinquent for committing any of the acts stemming from the

15  arrest or alleged criminal activity to which the petition to

16  seal pertains.

17         3.  Has never secured a prior sealing or expunction of

18  a criminal history record under this section, former s.

19  893.14, former s. 901.33, former s. 943.058, or from any

20  jurisdiction outside the state.

21         4.  Is eligible for such a sealing to the best of his

22  or her knowledge or belief and does not have any other

23  petition to seal or any petition to expunge pending before any

24  court.

25

26  Any person who knowingly provides false information on such

27  sworn statement to the court commits a felony of the third

28  degree, punishable as provided in s. 775.082, s. 775.083, or

29  s. 775.084.

30         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

31  petitioning the court to seal a criminal history record, a

                                  19

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  person seeking to seal a criminal history record shall apply

  2  to the department for a certificate of eligibility for

  3  sealing. The department shall, by rule adopted pursuant to

  4  chapter 120, establish procedures pertaining to the

  5  application for and issuance of certificates of eligibility

  6  for sealing. The department shall issue a certificate of

  7  eligibility for sealing to a person who is the subject of a

  8  criminal history record provided that such person:

  9         (a)  Has submitted to the department a certified copy

10  of the disposition of the charge to which the petition to seal

11  pertains.

12         (b)  Remits a $75 processing fee to the department for

13  placement in the Department of Law Enforcement Operating Trust

14  Fund, unless such fee is waived by the executive director.

15         (c)  Has never, prior to the date on which the

16  application for a certificate of eligibility is filed, been

17  adjudicated guilty of a criminal offense or comparable

18  ordinance violation or adjudicated delinquent for committing a

19  felony or a misdemeanor specified in s. 943.051(3)(b).

20         (d)  Has not been adjudicated guilty of or adjudicated

21  delinquent for committing any of the acts stemming from the

22  arrest or alleged criminal activity to which the petition to

23  seal pertains.

24         (e)  Has never secured a prior sealing or expunction of

25  a criminal history record under this section, former s.

26  893.14, former s. 901.33, or former s. 943.058.

27         (f)  Is no longer under court supervision applicable to

28  the disposition of the arrest or alleged criminal activity to

29  which the petition to seal pertains.

30         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

31

                                  20

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1         (a)  In judicial proceedings under this section, a copy

  2  of the completed petition to seal shall be served upon the

  3  appropriate state attorney or the statewide prosecutor and

  4  upon the arresting agency; however, it is not necessary to

  5  make any agency other than the state a party. The appropriate

  6  state attorney or the statewide prosecutor and the arresting

  7  agency may respond to the court regarding the completed

  8  petition to seal.

  9         (b)  If relief is granted by the court, the clerk of

10  the court shall certify copies of the order to the appropriate

11  state attorney or the statewide prosecutor and to the

12  arresting agency. The arresting agency is responsible for

13  forwarding the order to any other agency to which the

14  arresting agency disseminated the criminal history record

15  information to which the order pertains. The department shall

16  forward the order to seal to the Federal Bureau of

17  Investigation. The clerk of the court shall certify a copy of

18  the order to any other agency which the records of the court

19  reflect has received the criminal history record from the

20  court.

21         (c)  For an order to seal entered by a court prior to

22  July 1, 1992, the department shall notify the appropriate

23  state attorney or statewide prosecutor of any order to seal

24  which is contrary to law because the person who is the subject

25  of the record has previously been convicted of a crime or

26  comparable ordinance violation or has had a prior criminal

27  history record sealed or expunged. Upon receipt of such

28  notice, the appropriate state attorney or statewide prosecutor

29  shall take action, within 60 days, to correct the record and

30  petition the court to void the order to seal. The department

31

                                  21

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  shall seal the record until such time as the order is voided

  2  by the court.

  3         (d)  On or after July 1, 1992, the department or any

  4  other criminal justice agency is not required to act on an

  5  order to seal entered by a court when such order does not

  6  comply with the requirements of this section. Upon receipt of

  7  such an order, the department must notify the issuing court,

  8  the appropriate state attorney or statewide prosecutor, the

  9  petitioner or the petitioner's attorney, and the arresting

10  agency of the reason for noncompliance. The appropriate state

11  attorney or statewide prosecutor shall take action within 60

12  days to correct the record and petition the court to void the

13  order. No cause of action, including contempt of court, shall

14  arise against any criminal justice agency for failure to

15  comply with an order to seal when the petitioner for such

16  order failed to obtain the certificate of eligibility as

17  required by this section or when such order does not comply

18  with the requirements of this section.

19         (e)  An order sealing a criminal history record

20  pursuant to this section does not require that such record be

21  surrendered to the court, and such record shall continue to be

22  maintained by the department and other criminal justice

23  agencies.

24         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

25  criminal history record of a minor or an adult which is

26  ordered sealed by a court of competent jurisdiction pursuant

27  to this section is confidential and exempt from the provisions

28  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

29  and is available only to the person who is the subject of the

30  record, to the subject's attorney, to criminal justice

31  agencies for their respective criminal justice purposes, or to

                                  22

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  those entities set forth in subparagraphs (a)1., 4., 5., and

  2  6. for their respective licensing and employment purposes.

  3         (a)  The subject of a criminal history record sealed

  4  under this section or under other provisions of law, including

  5  former s. 893.14, former s. 901.33, and former s. 943.058, may

  6  lawfully deny or fail to acknowledge the arrests covered by

  7  the sealed record, except when the subject of the record:

  8         1.  Is a candidate for employment with a criminal

  9  justice agency;

10         2.  Is a defendant in a criminal prosecution;

11         3.  Concurrently or subsequently petitions for relief

12  under this section or s. 943.0585;

13         4.  Is a candidate for admission to The Florida Bar;

14         5.  Is seeking to be employed or licensed by or to

15  contract with the Department of Children and Family Services

16  or the Department of Juvenile Justice or to be employed or

17  used by such contractor or licensee in a sensitive position

18  having direct contact with children, the developmentally

19  disabled, the aged, or the elderly as provided in s.

20  110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s.

21  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

22  415.103, s. 985.407, or chapter 400; or

23         6.  Is seeking to be employed or licensed by the Office

24  of Teacher Education, Certification, Staff Development, and

25  Professional Practices of the Department of Education, any

26  district school board, or any local governmental entity which

27  licenses child care facilities.

28         (b)  Subject to the exceptions in paragraph (a), a

29  person who has been granted a sealing under this section,

30  former s. 893.14, former s. 901.33, or former s. 943.058 may

31  not be held under any provision of law of this state to commit

                                  23

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1  perjury or to be otherwise liable for giving a false statement

  2  by reason of such person's failure to recite or acknowledge a

  3  sealed criminal history record.

  4         (c)  Information relating to the existence of a sealed

  5  criminal record provided in accordance with the provisions of

  6  paragraph (a) is confidential and exempt from the provisions

  7  of s. 119.07(1) and s. 24(a), Art. I of the State

  8  Constitution, except that the department shall disclose the

  9  sealed criminal history record to the entities set forth in

10  subparagraphs (a)1., 4., 5., and 6. for their respective

11  licensing and employment purposes. It is unlawful for any

12  employee of an entity set forth in subparagraph (a)1.,

13  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

14  to disclose information relating to the existence of a sealed

15  criminal history record of a person seeking employment or

16  licensure with such entity or contractor, except to the person

17  to whom the criminal history record relates or to persons

18  having direct responsibility for employment or licensure

19  decisions. Any person who violates the provisions of this

20  paragraph commits a misdemeanor of the first degree,

21  punishable as provided in s. 775.082 or s. 775.083.

22         (5)  STATUTORY REFERENCES.--Any reference to any other

23  chapter, section, or subdivision of the Florida Statutes in

24  this section constitutes a general reference under the

25  doctrine of incorporation by reference.

26         Section 5.  This act shall take effect October 1, 2002.

27

28

29

30

31

                                  24

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






    Florida Senate - 2002                                   SB 516
    5-560-02




  1            *****************************************

  2                          SENATE SUMMARY

  3    Provides that a defendant who is charged with an act of
      terrorism, making terroristic threats, or obstructing the
  4    prosecution of terrorism may not be granted nonmonetary
      pretrial release, except that the court may release the
  5    defendant on electronic monitoring or on recognizance
      bond if the court finds that facts and circumstances
  6    warrant such release.

  7

  8

  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  25

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