| 1 | A bill to be entitled |
| 2 | An act relating to law enforcement; amending s. 790.065, |
| 3 | F.S.; requiring the Department of Law Enforcement to |
| 4 | review other records in addition to criminal history |
| 5 | records to evaluate a potential buyer or transferee of a |
| 6 | firearm, including an adjudication of mental defectiveness |
| 7 | or a commitment to a mental institution as criteria that |
| 8 | prohibit a person from purchasing a firearm; providing |
| 9 | definitions; requiring the department to maintain an |
| 10 | automated database of persons who are prohibited from |
| 11 | purchasing a firearm; requiring each clerk of court to |
| 12 | submit certain court records to the department within a |
| 13 | certain period; requiring the department to delete certain |
| 14 | records from the automated database upon the request of an |
| 15 | individual meeting specified conditions; authorizing the |
| 16 | department to disclose collected data to other federal or |
| 17 | state agencies with regard to the sale or transfer of a |
| 18 | firearm; authorizing the department to disclose certain |
| 19 | information to the Department of Agriculture and Consumer |
| 20 | Services for determining the eligibility of an applicant |
| 21 | for a concealed weapons or concealed firearms license; |
| 22 | requiring the clerk of court or mental hospital to provide |
| 23 | additional information upon request following an appeal of |
| 24 | an unapproved sale or transfer of a firearm; amending s. |
| 25 | 914.25, F.S.; providing for recertification for protective |
| 26 | services for an additional period, with reimbursement for |
| 27 | expenses from the Victim and Witness Protection Review |
| 28 | Committee; providing for unlimited protective services for |
| 29 | a victim or witness without reimbursement; amending s. |
| 30 | 937.021, F.S.; providing immunity to the Department of Law |
| 31 | Enforcement, other law enforcement agencies, and media |
| 32 | representatives from civil liability for complying in good |
| 33 | faith with a request to record or report information of an |
| 34 | Amber Alert or Missing Child Alert; providing that a |
| 35 | technical or clerical error or incorrect or incomplete |
| 36 | information does not overcome the presumption of good |
| 37 | faith in reporting information about an Amber Alert or |
| 38 | Missing Child Alert; providing that it is a discretionary |
| 39 | decision to report, record, or display Amber Alert or |
| 40 | Missing Child Alert information received from the local |
| 41 | law enforcement agency having jurisdiction; amending s. |
| 42 | 938.07, F.S.; requiring that a portion of certain court |
| 43 | costs imposed for a conviction of driving or boating under |
| 44 | the influence be deposited into the Operating Trust Fund |
| 45 | of the Department of Law Enforcement instead of the |
| 46 | Criminal Justice Standards and Training Trust Fund; |
| 47 | amending s. 938.27, F.S.; requiring that investigative |
| 48 | costs recovered on behalf of the Department of Law |
| 49 | Enforcement be deposited into the department's Forfeiture |
| 50 | and Investigative Trust Fund; amending s. 943.052, F.S.; |
| 51 | requiring that disposition reports for dispositions |
| 52 | relating to minor offenders are mandatory after a |
| 53 | specified date; amending s. 68.07, F.S.; requiring a set |
| 54 | of fingerprints as part of a name change petition; |
| 55 | amending s. 943.05, F.S.; authorizing the Department of |
| 56 | Law Enforcement to retain fingerprints in certain |
| 57 | circumstances and use retained fingerprints for certain |
| 58 | purposes; providing for an annual fee; providing for |
| 59 | waiver of the fee for good cause shown; providing for free |
| 60 | services for certain purposes; amending s. 943.053, F.S.; |
| 61 | requiring the department to make certain information |
| 62 | available to judges; limiting use of information; |
| 63 | authorizing a criminal justice agency to obtain a criminal |
| 64 | history background check of a noncertified agency employee |
| 65 | by submitting fingerprints to the department; requiring |
| 66 | that the criminal history check be provided by the |
| 67 | department in certain circumstances; amending s. 943.0585, |
| 68 | F.S.; prohibiting a court from expunging a criminal |
| 69 | history record containing certain sexual offenses or |
| 70 | certain offenses that require registration as a sexual |
| 71 | offender; requiring a valid certificate of eligibility for |
| 72 | expunction in a petition to expunge a criminal history |
| 73 | record; specifying the time during which a certificate of |
| 74 | eligibility for expunction is valid; requiring that a |
| 75 | trial may not have occurred in order for a person to |
| 76 | obtain a statement from the state attorney authorizing the |
| 77 | expunction of a criminal record; authorizing a person who |
| 78 | has secured a prior sealing of a criminal history record |
| 79 | to seek a certificate of eligibility for expunction if the |
| 80 | criminal history record was previously sealed for a |
| 81 | certain number of years and is otherwise eligible for |
| 82 | expunction; providing that a person who is seeking |
| 83 | authorization for employment within or access to a seaport |
| 84 | may not deny or fail to acknowledge arrests covered by |
| 85 | expunged records; providing that the department may |
| 86 | acknowledge expunged criminal history records under |
| 87 | certain circumstances; prohibiting seaport employees from |
| 88 | disclosing expunged criminal history record information |
| 89 | except to certain persons; providing penalties; amending |
| 90 | s. 943.059, F.S.; enumerating certain sexual offenses and |
| 91 | offenses that require registration as a sexual offender |
| 92 | which may not be sealed; requiring a valid certificate of |
| 93 | eligibility for sealing in a petition to seal a criminal |
| 94 | history record; specifying the period during which a |
| 95 | certificate of eligibility for sealing is valid; providing |
| 96 | that the information contained in a sealed criminal record |
| 97 | is available to a criminal justice agency for the purpose |
| 98 | of conducting a criminal history background check for |
| 99 | approval of a firearms purchase or transfer; prohibiting a |
| 100 | person from denying arrests covered by his or her sealed |
| 101 | criminal record when attempting to purchase a firearm; |
| 102 | providing that a person who is seeking authorization for |
| 103 | employment within or access to a seaport may not deny or |
| 104 | fail to acknowledge arrests covered by sealed records; |
| 105 | providing that the department may acknowledge sealed |
| 106 | criminal history records under certain circumstances; |
| 107 | prohibiting seaport employees from disclosing sealed |
| 108 | criminal history record information except to certain |
| 109 | persons; providing penalties; amending s. 943.13, F.S.; |
| 110 | requiring the department to enter law enforcement, |
| 111 | correctional, and correctional probation officers' |
| 112 | fingerprints into a statewide automated fingerprint |
| 113 | identification system; requiring the department to search |
| 114 | each arrest fingerprint card received against fingerprints |
| 115 | retained in the statewide automated fingerprint |
| 116 | identification system; providing for refingerprinting by a |
| 117 | certain date; amending ss. 943.1715 and 943.1716, F.S.; |
| 118 | deleting the minimum number of hours required for basic |
| 119 | skills training and continued employment training relating |
| 120 | to diverse populations for law enforcement, correctional, |
| 121 | and correctional probation officers; repealing s. |
| 122 | 943.2569, F.S., relating to an annual financial audit of |
| 123 | criminal justice selection centers; amending s. 943.257, |
| 124 | F.S.; authorizing the Criminal Justice Standards and |
| 125 | Training Commission and the advisory board of a criminal |
| 126 | justice selection center to inspect and copy any documents |
| 127 | from a center in order to carry out oversight |
| 128 | responsibilities, including documents pertaining to any |
| 129 | internal or independent audits; amending s. 943.401, F.S.; |
| 130 | requiring the department to investigate all public |
| 131 | assistance that is provided by the state; requiring public |
| 132 | assistance recipients to consent in writing to an |
| 133 | investigation into their employment and financial |
| 134 | histories by the Agency for Workforce Innovation; |
| 135 | requiring the department to report the results of the |
| 136 | investigations to the Agency for Workforce Innovation; |
| 137 | authorizing the department to purchase goodwill and |
| 138 | promotional materials; limiting the annual amount of such |
| 139 | expenditures; prohibiting the unauthorized use of the |
| 140 | department's emblems and names; providing a penalty; |
| 141 | providing effective dates. |
| 142 |
|
| 143 | Be It Enacted by the Legislature of the State of Florida: |
| 144 |
|
| 145 | Section 1. Effective February 1, 2007, paragraph (a) of |
| 146 | subsection (2) of section 790.065, Florida Statutes, is amended |
| 147 | to read: |
| 148 | 790.065 Sale and delivery of firearms.-- |
| 149 | (2) Upon receipt of a request for a criminal history |
| 150 | record check, the Department of Law Enforcement shall, during |
| 151 | the licensee's call or by return call, forthwith: |
| 152 | (a) Review criminal history records and other records that |
| 153 | have been provided to the department to determine if the |
| 154 | potential buyer or transferee: |
| 155 | 1. Has been convicted of a felony and is prohibited from |
| 156 | receipt or possession of a firearm pursuant to s. 790.23; |
| 157 | 2. Has been convicted of a misdemeanor crime of domestic |
| 158 | violence, and therefore is prohibited from purchasing a firearm; |
| 159 | or |
| 160 | 3. Has had adjudication of guilt withheld or imposition of |
| 161 | sentence suspended on any felony or misdemeanor crime of |
| 162 | domestic violence unless 3 years have elapsed since probation or |
| 163 | any other conditions set by the court have been fulfilled or |
| 164 | expunction has occurred; or. |
| 165 | 4. Has been adjudicated mentally defective or has been |
| 166 | committed to a mental institution by a court and as a result is |
| 167 | prohibited by federal law from purchasing a firearm. |
| 168 | a. As used in this subparagraph, "adjudicated mentally |
| 169 | defective" means a determination by a court that a person, as a |
| 170 | result of marked subnormal intelligence, or mental illness, |
| 171 | incompetency, condition, or disease, is a danger to himself or |
| 172 | herself or to others or lacks the mental capacity to contract or |
| 173 | manage his or her own affairs. The phrase shall include a |
| 174 | judicial finding of incapacity under s. 744.331(6)(a), an |
| 175 | acquittal by reason of insanity of a person charged with a |
| 176 | criminal offense, and a judicial finding that a criminal |
| 177 | defendant is not competent to stand trial. |
| 178 | b. As used in this subparagraph, "committed to a mental |
| 179 | institution" means involuntary commitment, commitment for mental |
| 180 | defectiveness or mental illness, and commitment for substance |
| 181 | abuse. The phrase shall include involuntary inpatient placement |
| 182 | as defined in s. 394.467, involuntary assessment and |
| 183 | stabilization under s. 397.6818, and involuntary substance abuse |
| 184 | treatment under s. 397.6957, but shall not include a person in a |
| 185 | mental institution for observation or discharged from a mental |
| 186 | institution based upon the initial review by the physician or a |
| 187 | voluntary admission to a mental institution. |
| 188 | c. In order to check for these conditions, the department |
| 189 | shall compile and maintain an automated database of persons who |
| 190 | are prohibited from purchasing a firearm based on court records |
| 191 | of adjudications of mental defectiveness or commitments to |
| 192 | mental institutions. Clerks of court are required to submit |
| 193 | these records to the department within 1 month after the |
| 194 | rendition of the adjudication or commitment. Reports may be |
| 195 | submitted in an automated format. The reports must, at a |
| 196 | minimum, include the name, along with any known alias or former |
| 197 | name, the sex, and the date of birth of the subject. The |
| 198 | department shall delete any mental health record from the |
| 199 | database upon request of an individual when 5 years have elapsed |
| 200 | since the individual's restoration to capacity by court order |
| 201 | after being adjudicated an incapacitated person under s. |
| 202 | 744.331, or similar laws of any other state; or, in the case of |
| 203 | an individual who was previously committed to a mental |
| 204 | institution under chapter 394, or similar laws of any other |
| 205 | state, when the individual produces a certificate from a |
| 206 | licensed psychiatrist that he or she has not suffered from |
| 207 | disability for at least 5 years prior to the date of request for |
| 208 | removal of the record. Where the department has received a |
| 209 | subsequent record of an adjudication of mental defectiveness or |
| 210 | commitment to a mental institution for such individual, the 5- |
| 211 | year timeframe shall be calculated from the most recent |
| 212 | adjudication of incapacitation or commitment. |
| 213 | d. The department is authorized to disclose the collected |
| 214 | data to agencies of the Federal Government and other states for |
| 215 | use exclusively in determining the lawfulness of a firearm sale |
| 216 | or transfer. The department is also authorized to disclose any |
| 217 | applicable collected data to the Department of Agriculture and |
| 218 | Consumer Services for determination of eligibility for issuance |
| 219 | of a concealed weapons or concealed firearms license upon |
| 220 | receipt of an applicant fingerprint submission forwarded |
| 221 | pursuant to s. 790.06(6)(a). When a potential buyer or |
| 222 | transferee appeals a nonapproval based on these records, the |
| 223 | clerks of court and mental institutions shall, upon request by |
| 224 | the department, provide information to help determine whether |
| 225 | the potential buyer or transferee is the same person as the |
| 226 | subject of the record. Photographs and any other data that could |
| 227 | confirm or negate identity must be made available to the |
| 228 | department for such purposes, notwithstanding any other |
| 229 | provision of state law to the contrary. Any such information |
| 230 | that is made confidential or exempt from disclosure by law shall |
| 231 | retain such confidential or exempt status when transferred to |
| 232 | the department. |
| 233 | Section 2. Subsections (4) and (5) of section 914.25, |
| 234 | Florida Statutes, are amended to read: |
| 235 | 914.25 Protective services for certain victims and |
| 236 | witnesses.-- |
| 237 | (4)(a) When a victim or witness is certified as provided |
| 238 | in subsection (3), a law enforcement agency, in consultation |
| 239 | with the certifying state attorney or the statewide prosecutor, |
| 240 | may provide appropriate protective services. If a victim or |
| 241 | witness needs to be temporarily relocated, the statewide |
| 242 | prosecutor or the state attorney must notify the Department of |
| 243 | Law Enforcement. The Department of Law Enforcement, in |
| 244 | consultation with the statewide prosecutor or the state |
| 245 | attorney, and any other law enforcement agency involved in the |
| 246 | criminal investigation or prosecution, shall coordinate the |
| 247 | temporary relocation of the victim or witness. |
| 248 | (b) Protective services, including temporary relocation |
| 249 | services, may initially be provided for up to 1 year or until |
| 250 | the risk giving rise to the certification has diminished, |
| 251 | whichever occurs sooner. If deemed necessary, The statewide |
| 252 | prosecutor or the state attorney may, at the end of the |
| 253 | certification year, recertify a victim or witness at risk of |
| 254 | harm for an additional period of up to 1 year or until the risk |
| 255 | giving rise to the certification has diminished, whichever |
| 256 | occurs first. A victim or witness at risk of harm may be |
| 257 | certified and recertified annually as provided in this section |
| 258 | to provide a maximum of 4 years of eligibility for protective |
| 259 | services. |
| 260 | (5) The lead law enforcement agency that provides |
| 261 | protective services, as authorized in this section, may seek |
| 262 | reimbursement for its reasonable expenses from the Victim and |
| 263 | Witness Protection Review Committee, pursuant to the provisions |
| 264 | of s. 943.031. This section does not prevent any law enforcement |
| 265 | agency from providing protective services at the agency's |
| 266 | expense beyond the 4-year maximum period established in this |
| 267 | section. Any such additional expenditures for protective |
| 268 | services are not eligible for the reimbursement provided in this |
| 269 | section. |
| 270 | Section 3. Subsection (3) is added to section 937.021, |
| 271 | Florida Statutes, to read: |
| 272 | 937.021 Missing child reports.-- |
| 273 | (3)(a) Upon receiving a request to record, report, |
| 274 | transmit, display, or release Amber Alert or Missing Child Alert |
| 275 | information from the law enforcement agency having jurisdiction |
| 276 | over the missing or endangered child, the Department of Law |
| 277 | Enforcement as the state Amber Alert coordinator; any state or |
| 278 | local law enforcement agency and the personnel of these |
| 279 | agencies; any radio or television network, broadcaster, or other |
| 280 | media representative; or any agency, employee, individual, or |
| 281 | entity is immune from civil liability for damages for complying |
| 282 | in good faith with the request and is presumed to have acted in |
| 283 | good faith in recording, reporting, transmitting, displaying, or |
| 284 | releasing Amber Alert or Missing Child Alert information |
| 285 | pertaining to such child. |
| 286 | (b) The presumption of good faith is not overcome if a |
| 287 | technical or clerical error is made by any such agency, |
| 288 | employee, individual, or entity acting at the request of the |
| 289 | local law enforcement agency having jurisdiction or if the Amber |
| 290 | Alert or Missing Child Alert information is incomplete or |
| 291 | incorrect because the information received from the local law |
| 292 | enforcement agency was incomplete or incorrect. |
| 293 | (c) Neither this subsection nor any other provision of law |
| 294 | creates a duty of the agency, employee, individual, or entity to |
| 295 | record, report, transmit, display, or release the Amber Alert or |
| 296 | Missing Child Alert information received from the local law |
| 297 | enforcement agency having jurisdiction. The decision to record, |
| 298 | report, transmit, display, or release information is |
| 299 | discretionary with the agency, employee, individual, or entity |
| 300 | receiving that information from the local law enforcement agency |
| 301 | having jurisdiction. |
| 302 | Section 4. Section 938.07, Florida Statutes, is amended to |
| 303 | read: |
| 304 | 938.07 Driving or boating under the |
| 305 | influence.--Notwithstanding any other provision of s. 316.193 or |
| 306 | s. 327.35, a court cost of $135 shall be added to any fine |
| 307 | imposed pursuant to s. 316.193 or s. 327.35. The clerks shall |
| 308 | remit the funds to the Department of Revenue, $25 of which shall |
| 309 | be deposited in the Emergency Medical Services Trust Fund, $50 |
| 310 | shall be deposited in the Operating Criminal Justice Standards |
| 311 | and Training Trust Fund of the Department of Law Enforcement to |
| 312 | be used for operational expenses in conducting the statewide |
| 313 | criminal analysis laboratory system established in s. 943.32, |
| 314 | and $60 shall be deposited in the Brain and Spinal Cord Injury |
| 315 | Rehabilitation Trust Fund created in s. 381.79. |
| 316 | Section 5. Subsection (7) of section 938.27, Florida |
| 317 | Statutes, is amended to read: |
| 318 | 938.27 Judgment for costs on conviction.-- |
| 319 | (7) Investigative costs that which are recovered shall be |
| 320 | returned to the appropriate investigative agency that which |
| 321 | incurred the expense. Such costs shall include actual expenses |
| 322 | incurred in conducting the investigation and prosecution of the |
| 323 | criminal case; however, costs may also include the salaries of |
| 324 | permanent employees. Any investigative costs recovered on behalf |
| 325 | of a state agency must be remitted to the Department of Revenue |
| 326 | for deposit in the agency operating trust fund, and a report of |
| 327 | the payment must be sent to the agency, except that any |
| 328 | investigative costs recovered on behalf of the Department of Law |
| 329 | Enforcement shall be deposited in the department's Forfeiture |
| 330 | and Investigative Support Trust Fund under s. 943.362. |
| 331 | Section 6. Subsection (2) of section 943.052, Florida |
| 332 | Statutes, is amended to read: |
| 333 | 943.052 Disposition reporting.--The Criminal Justice |
| 334 | Information Program shall, by rule, establish procedures and a |
| 335 | format for each criminal justice agency to monitor its records |
| 336 | and submit reports, as provided by this section, to the program. |
| 337 | The disposition report shall be developed by the program and |
| 338 | shall include the offender-based transaction system number. |
| 339 | (2) Each clerk of the court shall submit the uniform |
| 340 | dispositions to the program or in a manner acceptable to the |
| 341 | program. The report shall be submitted at least once a month |
| 342 | and, when acceptable by the program, may be submitted in an |
| 343 | automated format. The disposition report is mandatory for |
| 344 | dispositions relating to adult offenders only. Beginning July 1, |
| 345 | 2008, a disposition report for each disposition relating to a |
| 346 | minor offender is mandatory. |
| 347 | Section 7. Subsections (2) and (5) of section 68.07, |
| 348 | Florida Statutes, are amended to read: |
| 349 | 68.07 Change of name.-- |
| 350 | (2) The petition shall include a set copy of the |
| 351 | petitioner's fingerprints taken by a law enforcement agency |
| 352 | except where a former name is being restored and be verified and |
| 353 | show: |
| 354 | (a) That petitioner is a bona fide resident of and |
| 355 | domiciled in the county where the change of name is sought. |
| 356 | (b) If known, the date and place of birth of petitioner, |
| 357 | petitioner's father's name, mother's maiden name, and where |
| 358 | petitioner has resided since birth. |
| 359 | (c) If petitioner is married, the name of petitioner's |
| 360 | spouse and if petitioner has children, the names and ages of |
| 361 | each and where they reside. |
| 362 | (d) If petitioner's name has previously been changed and |
| 363 | when and where and by what court. |
| 364 | (e) Petitioner's occupation and where petitioner is |
| 365 | employed and has been employed for 5 years next preceding filing |
| 366 | of the petition. If petitioner owns and operates a business, the |
| 367 | name and place of it shall be stated and petitioner's connection |
| 368 | therewith and how long petitioner has been identified with said |
| 369 | business. If petitioner is in a profession, the profession shall |
| 370 | be stated, where the petitioner has practiced the profession and |
| 371 | if a graduate of a school or schools, the name or names thereof, |
| 372 | time of graduation, and degrees received. |
| 373 | (f) Whether the petitioner has been generally known or |
| 374 | called by any other names and if so, by what names and where. |
| 375 | (g) Whether petitioner has ever been adjudicated a |
| 376 | bankrupt and if so, where and when. |
| 377 | (h) Whether petitioner has ever been arrested for or |
| 378 | charged with, pled guilty or nolo contendere to, or been found |
| 379 | to have committed a criminal offense, regardless of |
| 380 | adjudication, and if so, when and where. |
| 381 | (i) Whether any money judgment has ever been entered |
| 382 | against petitioner and if so, the name of the judgment creditor, |
| 383 | the amount and date thereof, the court by which entered, and |
| 384 | whether the judgment has been satisfied. |
| 385 | (j) That the petition is filed for no ulterior or illegal |
| 386 | purpose and granting it will not in any manner invade the |
| 387 | property rights of others, whether partnership, patent, good |
| 388 | will, privacy, trademark, or otherwise. |
| 389 | (k) That the petitioner's civil rights have never been |
| 390 | suspended, or if the petitioner's civil rights have been |
| 391 | suspended, that full restoration of civil rights has occurred. |
| 392 | (5) The clerk must, upon the filing of the final judgment, |
| 393 | send a report of the judgment to the Department of Law |
| 394 | Enforcement on a form to be furnished by that department. The |
| 395 | Department of Law Enforcement must send a copy of the report to |
| 396 | the Department of Highway Safety and Motor Vehicles, which may |
| 397 | be delivered by electronic transmission. The report must contain |
| 398 | sufficient information to identify the petitioner, including a |
| 399 | set copy of the petitioner's fingerprints taken by a law |
| 400 | enforcement agency, the new name of the petitioner, and the file |
| 401 | number of the judgment. Any information retained by the |
| 402 | Department of Law Enforcement and the Department of Highway |
| 403 | Safety and Motor Vehicles may be revised or supplemented by said |
| 404 | departments to reflect changes made by the final judgment. With |
| 405 | respect to a person convicted of a felony in another state or of |
| 406 | a federal offense, the Department of Law Enforcement must send |
| 407 | the report to the respective state's office of law enforcement |
| 408 | records or to the office of the Federal Bureau of Investigation. |
| 409 | The Department of Law Enforcement may forward the report to any |
| 410 | other law enforcement agency it believes may retain information |
| 411 | related to the petitioner. Any costs associated with |
| 412 | fingerprinting must be paid by the petitioner. |
| 413 | Section 8. Paragraphs (g) and (h) are added to subsection |
| 414 | (2) of section 943.05, Florida Statutes, to read: |
| 415 | 943.05 Criminal Justice Information Program; duties; crime |
| 416 | reports.-- |
| 417 | (2) The program shall: |
| 418 | (g) As authorized by law, retain fingerprints submitted by |
| 419 | criminal and noncriminal justice agencies to the department for |
| 420 | a criminal history background screening in a manner provided by |
| 421 | rule and enter the fingerprints in the statewide automated |
| 422 | fingerprint identification system authorized by paragraph (b). |
| 423 | Such fingerprints shall thereafter be available for all purposes |
| 424 | and uses authorized for arrest fingerprint cards entered into |
| 425 | the statewide automated fingerprint identification system |
| 426 | pursuant to s. 943.051. |
| 427 | (h)1. As authorized by law, search all arrest fingerprint |
| 428 | cards received under s. 943.051 against the fingerprints |
| 429 | retained in the statewide automated fingerprint identification |
| 430 | system under paragraph (g). Any arrest record that is identified |
| 431 | with the retained fingerprints of a person subject to background |
| 432 | screening as provided in paragraph (g) shall be reported to the |
| 433 | appropriate agency. |
| 434 | 2. Agencies may participate in this search process by |
| 435 | payment of an annual fee to the department and by informing the |
| 436 | department of any change in the affiliation, employment, or |
| 437 | contractual status or place of affiliation, employment, or |
| 438 | contracting of the persons whose fingerprints are retained under |
| 439 | paragraph (g). The department shall adopt a rule setting the |
| 440 | amount of the annual fee to be imposed upon each participating |
| 441 | agency for performing these searches and establishing the |
| 442 | procedures for the retention of fingerprints and the |
| 443 | dissemination of search results. The fee may be borne as |
| 444 | provided by law. Fees may be waived or reduced by the executive |
| 445 | director for good cause shown. Consistent with the recognition |
| 446 | of criminal justice agencies expressed in s. 943.053(3), these |
| 447 | services will be provided to criminal justice agencies for |
| 448 | criminal justice purposes free of charge. |
| 449 | Section 9. Subsections (5) through (9) of section 943.053, |
| 450 | Florida Statutes, are renumbered as subsections (6) through |
| 451 | (10), respectively, and new subsections (5), (11), and (12) are |
| 452 | added to that section, to read: |
| 453 | 943.053 Dissemination of criminal justice information; |
| 454 | fees.-- |
| 455 | (5) Notwithstanding the provisions of s. 943.0525, and any |
| 456 | user agreements adopted pursuant thereto, and notwithstanding |
| 457 | the confidentiality of sealed records as provided for in s. |
| 458 | 943.059, the department shall make online access to Florida |
| 459 | criminal justice information available to each judge in the |
| 460 | state courts system for the purpose of assisting judges in their |
| 461 | case-related decisionmaking responsibilities. Such online access |
| 462 | shall be provided without charge to the state courts system. |
| 463 | Sealed records received by the courts under this section remain |
| 464 | confidential and exempt from the provisions of s. 119.07(1). The |
| 465 | information provided pursuant to this section shall not take the |
| 466 | place of any information required to be provided to the courts |
| 467 | by any other agency or entity. Information provided under this |
| 468 | section shall be used only for the official court business for |
| 469 | which it was requested and may not be further disseminated. |
| 470 | (11) A criminal justice agency that is authorized under |
| 471 | federal rules or law to conduct a criminal history background |
| 472 | check on an agency employee who is not certified by the Criminal |
| 473 | Justice Standards and Training Commission under s. 943.12 may |
| 474 | submit to the department the fingerprints of the noncertified |
| 475 | employee to obtain state and national criminal history |
| 476 | information. Effective January 15, 2007, the fingerprints |
| 477 | submitted shall be retained and entered in the statewide |
| 478 | automated fingerprint identification system authorized by s. |
| 479 | 943.05 and shall be available for all purposes and uses |
| 480 | authorized for arrest fingerprint cards entered in the statewide |
| 481 | automated fingerprint identification system pursuant to s. |
| 482 | 943.051. The department shall search all arrest fingerprint |
| 483 | cards received pursuant to s. 943.051 against the fingerprints |
| 484 | retained in the statewide automated fingerprint identification |
| 485 | system pursuant to this section. In addition to all purposes and |
| 486 | uses authorized for arrest fingerprint cards for which submitted |
| 487 | fingerprints may be used, any arrest record that is identified |
| 488 | with the retained employee fingerprints must be reported to the |
| 489 | submitting employing agency. |
| 490 | (12) Notwithstanding any other provision of law, when a |
| 491 | criminal history check or a duty to disclose the absence of a |
| 492 | criminal history check is mandated by state law, or when a |
| 493 | privilege or benefit is conferred by state law in return for |
| 494 | exercising an option of conducting a criminal history check, the |
| 495 | referenced criminal history check, whether it is an initial or |
| 496 | renewal check, shall include a Florida criminal history provided |
| 497 | by the department as set forth in this section. Such Florida |
| 498 | criminal history information may be provided by a private vendor |
| 499 | only if that information is directly obtained from the |
| 500 | department for each request. When a national criminal history |
| 501 | check is required or authorized by state law, the national |
| 502 | criminal history check shall be submitted by and through the |
| 503 | department in the manner established by the department for such |
| 504 | checks, unless otherwise required by federal law. The fee for |
| 505 | criminal history information as established by state law or, in |
| 506 | the case of national checks, by the Federal Government, shall be |
| 507 | borne by the person or entity submitting the request, or as |
| 508 | provided by law. Criminal history information provided by any |
| 509 | other governmental entity of this state or any private entity |
| 510 | shall not be substituted for criminal history information |
| 511 | provided by the department when the criminal history check or a |
| 512 | duty to disclose the absence of a criminal history check is |
| 513 | required by statute or is made a condition of a privilege or |
| 514 | benefit by law. |
| 515 | Section 10. Section 943.0585, Florida Statutes, is amended |
| 516 | to read: |
| 517 | 943.0585 Court-ordered expunction of criminal history |
| 518 | records.--The courts of this state have jurisdiction over their |
| 519 | own procedures, including the maintenance, expunction, and |
| 520 | correction of judicial records containing criminal history |
| 521 | information to the extent such procedures are not inconsistent |
| 522 | with the conditions, responsibilities, and duties established by |
| 523 | this section. Any court of competent jurisdiction may order a |
| 524 | criminal justice agency to expunge the criminal history record |
| 525 | of a minor or an adult who complies with the requirements of |
| 526 | this section. The court shall not order a criminal justice |
| 527 | agency to expunge a criminal history record until the person |
| 528 | seeking to expunge a criminal history record has applied for and |
| 529 | received a certificate of eligibility for expunction pursuant to |
| 530 | subsection (2). A criminal history record that relates to a |
| 531 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
| 532 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
| 533 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
| 534 | 893.135, s. 916.1075, or a violation enumerated in s. 907.041, |
| 535 | or any violation specified as a predicate offense for |
| 536 | registration as a sexual predator pursuant to s. 775.21, without |
| 537 | regard to whether that offense alone is sufficient to require |
| 538 | such registration, or for registration as a sexual offender |
| 539 | pursuant to s. 943.0435, may not be expunged, without regard to |
| 540 | whether adjudication was withheld, if the defendant was found |
| 541 | guilty of or pled guilty or nolo contendere to the offense, or |
| 542 | if the defendant, as a minor, was found to have committed, or |
| 543 | pled guilty or nolo contendere to committing, the offense as a |
| 544 | delinquent act. The court may only order expunction of a |
| 545 | criminal history record pertaining to one arrest or one incident |
| 546 | of alleged criminal activity, except as provided in this |
| 547 | section. The court may, at its sole discretion, order the |
| 548 | expunction of a criminal history record pertaining to more than |
| 549 | one arrest if the additional arrests directly relate to the |
| 550 | original arrest. If the court intends to order the expunction of |
| 551 | records pertaining to such additional arrests, such intent must |
| 552 | be specified in the order. A criminal justice agency may not |
| 553 | expunge any record pertaining to such additional arrests if the |
| 554 | order to expunge does not articulate the intention of the court |
| 555 | to expunge a record pertaining to more than one arrest. This |
| 556 | section does not prevent the court from ordering the expunction |
| 557 | of only a portion of a criminal history record pertaining to one |
| 558 | arrest or one incident of alleged criminal activity. |
| 559 | Notwithstanding any law to the contrary, a criminal justice |
| 560 | agency may comply with laws, court orders, and official requests |
| 561 | of other jurisdictions relating to expunction, correction, or |
| 562 | confidential handling of criminal history records or information |
| 563 | derived therefrom. This section does not confer any right to the |
| 564 | expunction of any criminal history record, and any request for |
| 565 | expunction of a criminal history record may be denied at the |
| 566 | sole discretion of the court. |
| 567 | (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each |
| 568 | petition to a court to expunge a criminal history record is |
| 569 | complete only when accompanied by: |
| 570 | (a) A valid certificate of eligibility for expunction |
| 571 | issued by the department pursuant to subsection (2). |
| 572 | (b) The petitioner's sworn statement attesting that the |
| 573 | petitioner: |
| 574 | 1. Has never, prior to the date on which the petition is |
| 575 | filed, been adjudicated guilty of a criminal offense or |
| 576 | comparable ordinance violation, or been adjudicated delinquent |
| 577 | for committing any a felony or a misdemeanor specified in s. |
| 578 | 943.051(3)(b). |
| 579 | 2. Has not been adjudicated guilty of, or adjudicated |
| 580 | delinquent for committing, any of the acts stemming from the |
| 581 | arrest or alleged criminal activity to which the petition |
| 582 | pertains. |
| 583 | 3. Has never secured a prior sealing or expunction of a |
| 584 | criminal history record under this section, former s. 893.14, |
| 585 | former s. 901.33, or former s. 943.058, or from any jurisdiction |
| 586 | outside the state, unless expunction is sought of a criminal |
| 587 | history record previously sealed for 10 years pursuant to |
| 588 | paragraph (2)(h) and the record is otherwise eligible for |
| 589 | expunction. |
| 590 | 4. Is eligible for such an expunction to the best of his |
| 591 | or her knowledge or belief and does not have any other petition |
| 592 | to expunge or any petition to seal pending before any court. |
| 593 |
|
| 594 | Any person who knowingly provides false information on such |
| 595 | sworn statement to the court commits a felony of the third |
| 596 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 597 | 775.084. |
| 598 | (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to |
| 599 | petitioning the court to expunge a criminal history record, a |
| 600 | person seeking to expunge a criminal history record shall apply |
| 601 | to the department for a certificate of eligibility for |
| 602 | expunction. The department shall, by rule adopted pursuant to |
| 603 | chapter 120, establish procedures pertaining to the application |
| 604 | for and issuance of certificates of eligibility for expunction. |
| 605 | A certificate of eligibility for expunction is valid for 12 |
| 606 | months after the date stamped on the certificate when issued by |
| 607 | the department. After that time, the petitioner must reapply to |
| 608 | the department for a new certificate of eligibility. Eligibility |
| 609 | for a renewed certification of eligibility must be based on the |
| 610 | status of the applicant and the law in effect at the time of the |
| 611 | most recent application. The department shall issue a |
| 612 | certificate of eligibility for expunction to a person who is the |
| 613 | subject of a criminal history record if that person: |
| 614 | (a) Has obtained, and submitted to the department, a |
| 615 | written, certified statement from the appropriate state attorney |
| 616 | or statewide prosecutor which indicates: |
| 617 | 1. That an indictment, information, or other charging |
| 618 | document was not filed or issued in the case. |
| 619 | 2. That an indictment, information, or other charging |
| 620 | document, if filed or issued in the case, was dismissed or nolle |
| 621 | prosequi by the state attorney or statewide prosecutor, or was |
| 622 | dismissed by a court of competent jurisdiction, and that none of |
| 623 | the charges related to the arrest or alleged criminal activity |
| 624 | to which the petition to expunge pertains resulted in a trial, |
| 625 | without regard to whether the outcome of the trial was other |
| 626 | than an adjudication of guilt. |
| 627 | 3. That the criminal history record does not relate to a |
| 628 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
| 629 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
| 630 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
| 631 | 893.135, s. 916.1075, or a violation enumerated in s. 907.041, |
| 632 | or any violation specified as a predicate offense for |
| 633 | registration as a sexual predator pursuant to s. 775.21, without |
| 634 | regard to whether that offense alone is sufficient to require |
| 635 | such registration, or for registration as a sexual offender |
| 636 | pursuant to s. 943.0435, where the defendant was found guilty |
| 637 | of, or pled guilty or nolo contendere to any such offense, or |
| 638 | that the defendant, as a minor, was found to have committed, or |
| 639 | pled guilty or nolo contendere to committing, such an offense as |
| 640 | a delinquent act, without regard to whether adjudication was |
| 641 | withheld. |
| 642 | (b) Remits a $75 processing fee to the department for |
| 643 | placement in the Department of Law Enforcement Operating Trust |
| 644 | Fund, unless such fee is waived by the executive director. |
| 645 | (c) Has submitted to the department a certified copy of |
| 646 | the disposition of the charge to which the petition to expunge |
| 647 | pertains. |
| 648 | (d) Has never, prior to the date on which the application |
| 649 | for a certificate of eligibility is filed, been adjudicated |
| 650 | guilty of a criminal offense or comparable ordinance violation, |
| 651 | or been adjudicated delinquent for committing any a felony or a |
| 652 | misdemeanor specified in s. 943.051(3)(b). |
| 653 | (e) Has not been adjudicated guilty of, or adjudicated |
| 654 | delinquent for committing, any of the acts stemming from the |
| 655 | arrest or alleged criminal activity to which the petition to |
| 656 | expunge pertains. |
| 657 | (f) Has never secured a prior sealing or expunction of a |
| 658 | criminal history record under this section, former s. 893.14, |
| 659 | former s. 901.33, or former s. 943.058, unless expunction is |
| 660 | sought of a criminal history record previously sealed for 10 |
| 661 | years pursuant to paragraph (h) and the record is otherwise |
| 662 | eligible for expunction. |
| 663 | (g) Is no longer under court supervision applicable to the |
| 664 | disposition of the arrest or alleged criminal activity to which |
| 665 | the petition to expunge pertains. |
| 666 | (h) Has previously obtained a court order sealing the |
| 667 | record under this section, former s. 893.14, former s. 901.33, |
| 668 | or former s. 943.058 for a minimum of 10 years because |
| 669 | adjudication was withheld or because all charges related to the |
| 670 | arrest or alleged criminal activity to which the petition to |
| 671 | expunge pertains were not dismissed prior to trial, without |
| 672 | regard to whether the outcome of the trial was other than an |
| 673 | adjudication of guilt. The requirement for the record to have |
| 674 | previously been sealed for a minimum of 10 years does not apply |
| 675 | when a plea was not entered or all charges related to the arrest |
| 676 | or alleged criminal activity to which the petition to expunge |
| 677 | pertains were dismissed prior to trial. Is not required to wait |
| 678 | a minimum of 10 years prior to being eligible for an expunction |
| 679 | of such records because all charges related to the arrest or |
| 680 | criminal activity to which the petition to expunge pertains were |
| 681 | dismissed prior to trial, adjudication, or the withholding of |
| 682 | adjudication. Otherwise, such criminal history record must be |
| 683 | sealed under this section, former s. 893.14, former s. 901.33, |
| 684 | or former s. 943.058 for at least 10 years before such record is |
| 685 | eligible for expunction. |
| 686 | (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.-- |
| 687 | (a) In judicial proceedings under this section, a copy of |
| 688 | the completed petition to expunge shall be served upon the |
| 689 | appropriate state attorney or the statewide prosecutor and upon |
| 690 | the arresting agency; however, it is not necessary to make any |
| 691 | agency other than the state a party. The appropriate state |
| 692 | attorney or the statewide prosecutor and the arresting agency |
| 693 | may respond to the court regarding the completed petition to |
| 694 | expunge. |
| 695 | (b) If relief is granted by the court, the clerk of the |
| 696 | court shall certify copies of the order to the appropriate state |
| 697 | attorney or the statewide prosecutor and the arresting agency. |
| 698 | The arresting agency is responsible for forwarding the order to |
| 699 | any other agency to which the arresting agency disseminated the |
| 700 | criminal history record information to which the order pertains. |
| 701 | The department shall forward the order to expunge to the Federal |
| 702 | Bureau of Investigation. The clerk of the court shall certify a |
| 703 | copy of the order to any other agency which the records of the |
| 704 | court reflect has received the criminal history record from the |
| 705 | court. |
| 706 | (c) For an order to expunge entered by a court prior to |
| 707 | July 1, 1992, the department shall notify the appropriate state |
| 708 | attorney or statewide prosecutor of an order to expunge which is |
| 709 | contrary to law because the person who is the subject of the |
| 710 | record has previously been convicted of a crime or comparable |
| 711 | ordinance violation or has had a prior criminal history record |
| 712 | sealed or expunged. Upon receipt of such notice, the appropriate |
| 713 | state attorney or statewide prosecutor shall take action, within |
| 714 | 60 days, to correct the record and petition the court to void |
| 715 | the order to expunge. The department shall seal the record until |
| 716 | such time as the order is voided by the court. |
| 717 | (d) On or after July 1, 1992, the department or any other |
| 718 | criminal justice agency is not required to act on an order to |
| 719 | expunge entered by a court when such order does not comply with |
| 720 | the requirements of this section. Upon receipt of such an order, |
| 721 | the department must notify the issuing court, the appropriate |
| 722 | state attorney or statewide prosecutor, the petitioner or the |
| 723 | petitioner's attorney, and the arresting agency of the reason |
| 724 | for noncompliance. The appropriate state attorney or statewide |
| 725 | prosecutor shall take action within 60 days to correct the |
| 726 | record and petition the court to void the order. No cause of |
| 727 | action, including contempt of court, shall arise against any |
| 728 | criminal justice agency for failure to comply with an order to |
| 729 | expunge when the petitioner for such order failed to obtain the |
| 730 | certificate of eligibility as required by this section or such |
| 731 | order does not otherwise comply with the requirements of this |
| 732 | section. |
| 733 | (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any |
| 734 | criminal history record of a minor or an adult which is ordered |
| 735 | expunged by a court of competent jurisdiction pursuant to this |
| 736 | section must be physically destroyed or obliterated by any |
| 737 | criminal justice agency having custody of such record; except |
| 738 | that any criminal history record in the custody of the |
| 739 | department must be retained in all cases. A criminal history |
| 740 | record ordered expunged that is retained by the department is |
| 741 | confidential and exempt from the provisions of s. 119.07(1) and |
| 742 | s. 24(a), Art. I of the State Constitution and not available to |
| 743 | any person or entity except upon order of a court of competent |
| 744 | jurisdiction. A criminal justice agency may retain a notation |
| 745 | indicating compliance with an order to expunge. |
| 746 | (a) The person who is the subject of a criminal history |
| 747 | record that is expunged under this section or under other |
| 748 | provisions of law, including former s. 893.14, former s. 901.33, |
| 749 | and former s. 943.058, may lawfully deny or fail to acknowledge |
| 750 | the arrests covered by the expunged record, except when the |
| 751 | subject of the record: |
| 752 | 1. Is a candidate for employment with a criminal justice |
| 753 | agency; |
| 754 | 2. Is a defendant in a criminal prosecution; |
| 755 | 3. Concurrently or subsequently petitions for relief under |
| 756 | this section or s. 943.059; |
| 757 | 4. Is a candidate for admission to The Florida Bar; |
| 758 | 5. Is seeking to be employed or licensed by or to contract |
| 759 | with the Department of Children and Family Services or the |
| 760 | Department of Juvenile Justice or to be employed or used by such |
| 761 | contractor or licensee in a sensitive position having direct |
| 762 | contact with children, the developmentally disabled, the aged, |
| 763 | or the elderly as provided in s. 110.1127(3), s. 393.063, s. |
| 764 | 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. |
| 765 | 409.175(2)(i), s. 415.102(4), s. 916.106(10) and (13), s. |
| 766 | 985.407, or chapter 400; or |
| 767 | 6. Is seeking to be employed or licensed by the Department |
| 768 | of Education, any district school board, any university |
| 769 | laboratory school, any charter school, any private or parochial |
| 770 | school, or any local governmental entity that licenses child |
| 771 | care facilities; or |
| 772 | 7. Is seeking authorization from a Florida seaport |
| 773 | identified in s. 311.09 for employment within or access to one |
| 774 | or more of such seaports pursuant to s. 311.12 or s. 311.125. |
| 775 | (b) Subject to the exceptions in paragraph (a), a person |
| 776 | who has been granted an expunction under this section, former s. |
| 777 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
| 778 | under any provision of law of this state to commit perjury or to |
| 779 | be otherwise liable for giving a false statement by reason of |
| 780 | such person's failure to recite or acknowledge an expunged |
| 781 | criminal history record. |
| 782 | (c) Information relating to the existence of an expunged |
| 783 | criminal history record which is provided in accordance with |
| 784 | paragraph (a) is confidential and exempt from the provisions of |
| 785 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
| 786 | except that the department shall disclose the existence of a |
| 787 | criminal history record ordered expunged to the entities set |
| 788 | forth in subparagraphs (a)1., 4., 5., and 6., and 7. for their |
| 789 | respective licensing, access authorization, and employment |
| 790 | purposes, and to criminal justice agencies for their respective |
| 791 | criminal justice purposes. It is unlawful for any employee of an |
| 792 | entity set forth in subparagraph (a)1., subparagraph (a)4., |
| 793 | subparagraph (a)5., or subparagraph (a)6., or subparagraph(a)7. |
| 794 | to disclose information relating to the existence of an expunged |
| 795 | criminal history record of a person seeking employment, access |
| 796 | authorization, or licensure with such entity or contractor, |
| 797 | except to the person to whom the criminal history record relates |
| 798 | or to persons having direct responsibility for employment, |
| 799 | access authorization, or licensure decisions. Any person who |
| 800 | violates this paragraph commits a misdemeanor of the first |
| 801 | degree, punishable as provided in s. 775.082 or s. 775.083. |
| 802 | (5) STATUTORY REFERENCES.--Any reference to any other |
| 803 | chapter, section, or subdivision of the Florida Statutes in this |
| 804 | section constitutes a general reference under the doctrine of |
| 805 | incorporation by reference. |
| 806 | Section 11. Section 943.059, Florida Statutes, is amended |
| 807 | to read: |
| 808 | 943.059 Court-ordered sealing of criminal history |
| 809 | records.--The courts of this state shall continue to have |
| 810 | jurisdiction over their own procedures, including the |
| 811 | maintenance, sealing, and correction of judicial records |
| 812 | containing criminal history information to the extent such |
| 813 | procedures are not inconsistent with the conditions, |
| 814 | responsibilities, and duties established by this section. Any |
| 815 | court of competent jurisdiction may order a criminal justice |
| 816 | agency to seal the criminal history record of a minor or an |
| 817 | adult who complies with the requirements of this section. The |
| 818 | court shall not order a criminal justice agency to seal a |
| 819 | criminal history record until the person seeking to seal a |
| 820 | criminal history record has applied for and received a |
| 821 | certificate of eligibility for sealing pursuant to subsection |
| 822 | (2). A criminal history record that relates to a violation of s. |
| 823 | 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. |
| 824 | 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter |
| 825 | 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. |
| 826 | 916.1075, or a violation enumerated in s. 907.041, or any |
| 827 | violation specified as a predicate offense for registration as a |
| 828 | sexual predator pursuant to s. 775.21, without regard to whether |
| 829 | that offense alone is sufficient to require such registration, |
| 830 | or for registration as a sexual offender pursuant to s. |
| 831 | 943.0435, may not be sealed, without regard to whether |
| 832 | adjudication was withheld, if the defendant was found guilty of |
| 833 | or pled guilty or nolo contendere to the offense, or if the |
| 834 | defendant, as a minor, was found to have committed or pled |
| 835 | guilty or nolo contendere to committing the offense as a |
| 836 | delinquent act. The court may only order sealing of a criminal |
| 837 | history record pertaining to one arrest or one incident of |
| 838 | alleged criminal activity, except as provided in this section. |
| 839 | The court may, at its sole discretion, order the sealing of a |
| 840 | criminal history record pertaining to more than one arrest if |
| 841 | the additional arrests directly relate to the original arrest. |
| 842 | If the court intends to order the sealing of records pertaining |
| 843 | to such additional arrests, such intent must be specified in the |
| 844 | order. A criminal justice agency may not seal any record |
| 845 | pertaining to such additional arrests if the order to seal does |
| 846 | not articulate the intention of the court to seal records |
| 847 | pertaining to more than one arrest. This section does not |
| 848 | prevent the court from ordering the sealing of only a portion of |
| 849 | a criminal history record pertaining to one arrest or one |
| 850 | incident of alleged criminal activity. Notwithstanding any law |
| 851 | to the contrary, a criminal justice agency may comply with laws, |
| 852 | court orders, and official requests of other jurisdictions |
| 853 | relating to sealing, correction, or confidential handling of |
| 854 | criminal history records or information derived therefrom. This |
| 855 | section does not confer any right to the sealing of any criminal |
| 856 | history record, and any request for sealing a criminal history |
| 857 | record may be denied at the sole discretion of the court. |
| 858 | (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each |
| 859 | petition to a court to seal a criminal history record is |
| 860 | complete only when accompanied by: |
| 861 | (a) A valid certificate of eligibility for sealing issued |
| 862 | by the department pursuant to subsection (2). |
| 863 | (b) The petitioner's sworn statement attesting that the |
| 864 | petitioner: |
| 865 | 1. Has never, prior to the date on which the petition is |
| 866 | filed, been adjudicated guilty of a criminal offense or |
| 867 | comparable ordinance violation, or been adjudicated delinquent |
| 868 | for committing any a felony or a misdemeanor specified in s. |
| 869 | 943.051(3)(b). |
| 870 | 2. Has not been adjudicated guilty of or adjudicated |
| 871 | delinquent for committing any of the acts stemming from the |
| 872 | arrest or alleged criminal activity to which the petition to |
| 873 | seal pertains. |
| 874 | 3. Has never secured a prior sealing or expunction of a |
| 875 | criminal history record under this section, former s. 893.14, |
| 876 | former s. 901.33, former s. 943.058, or from any jurisdiction |
| 877 | outside the state. |
| 878 | 4. Is eligible for such a sealing to the best of his or |
| 879 | her knowledge or belief and does not have any other petition to |
| 880 | seal or any petition to expunge pending before any court. |
| 881 |
|
| 882 | Any person who knowingly provides false information on such |
| 883 | sworn statement to the court commits a felony of the third |
| 884 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 885 | 775.084. |
| 886 | (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to |
| 887 | petitioning the court to seal a criminal history record, a |
| 888 | person seeking to seal a criminal history record shall apply to |
| 889 | the department for a certificate of eligibility for sealing. The |
| 890 | department shall, by rule adopted pursuant to chapter 120, |
| 891 | establish procedures pertaining to the application for and |
| 892 | issuance of certificates of eligibility for sealing. A |
| 893 | certificate of eligibility for sealing is valid for 12 months |
| 894 | after the date stamped on the certificate when issued by the |
| 895 | department. After that time, the petitioner must reapply to the |
| 896 | department for a new certificate of eligibility. Eligibility for |
| 897 | a renewed certification of eligibility must be based on the |
| 898 | status of the applicant and the law in effect at the time of the |
| 899 | most recent application. The department shall issue a |
| 900 | certificate of eligibility for sealing to a person who is the |
| 901 | subject of a criminal history record provided that such person: |
| 902 | (a) Has submitted to the department a certified copy of |
| 903 | the disposition of the charge to which the petition to seal |
| 904 | pertains. |
| 905 | (b) Remits a $75 processing fee to the department for |
| 906 | placement in the Department of Law Enforcement Operating Trust |
| 907 | Fund, unless such fee is waived by the executive director. |
| 908 | (c) Has never, prior to the date on which the application |
| 909 | for a certificate of eligibility is filed, been adjudicated |
| 910 | guilty of a criminal offense or comparable ordinance violation, |
| 911 | or been adjudicated delinquent for committing any a felony or a |
| 912 | misdemeanor specified in s. 943.051(3)(b). |
| 913 | (d) Has not been adjudicated guilty of or adjudicated |
| 914 | delinquent for committing any of the acts stemming from the |
| 915 | arrest or alleged criminal activity to which the petition to |
| 916 | seal pertains. |
| 917 | (e) Has never secured a prior sealing or expunction of a |
| 918 | criminal history record under this section, former s. 893.14, |
| 919 | former s. 901.33, or former s. 943.058. |
| 920 | (f) Is no longer under court supervision applicable to the |
| 921 | disposition of the arrest or alleged criminal activity to which |
| 922 | the petition to seal pertains. |
| 923 | (3) PROCESSING OF A PETITION OR ORDER TO SEAL.-- |
| 924 | (a) In judicial proceedings under this section, a copy of |
| 925 | the completed petition to seal shall be served upon the |
| 926 | appropriate state attorney or the statewide prosecutor and upon |
| 927 | the arresting agency; however, it is not necessary to make any |
| 928 | agency other than the state a party. The appropriate state |
| 929 | attorney or the statewide prosecutor and the arresting agency |
| 930 | may respond to the court regarding the completed petition to |
| 931 | seal. |
| 932 | (b) If relief is granted by the court, the clerk of the |
| 933 | court shall certify copies of the order to the appropriate state |
| 934 | attorney or the statewide prosecutor and to the arresting |
| 935 | agency. The arresting agency is responsible for forwarding the |
| 936 | order to any other agency to which the arresting agency |
| 937 | disseminated the criminal history record information to which |
| 938 | the order pertains. The department shall forward the order to |
| 939 | seal to the Federal Bureau of Investigation. The clerk of the |
| 940 | court shall certify a copy of the order to any other agency |
| 941 | which the records of the court reflect has received the criminal |
| 942 | history record from the court. |
| 943 | (c) For an order to seal entered by a court prior to July |
| 944 | 1, 1992, the department shall notify the appropriate state |
| 945 | attorney or statewide prosecutor of any order to seal which is |
| 946 | contrary to law because the person who is the subject of the |
| 947 | record has previously been convicted of a crime or comparable |
| 948 | ordinance violation or has had a prior criminal history record |
| 949 | sealed or expunged. Upon receipt of such notice, the appropriate |
| 950 | state attorney or statewide prosecutor shall take action, within |
| 951 | 60 days, to correct the record and petition the court to void |
| 952 | the order to seal. The department shall seal the record until |
| 953 | such time as the order is voided by the court. |
| 954 | (d) On or after July 1, 1992, the department or any other |
| 955 | criminal justice agency is not required to act on an order to |
| 956 | seal entered by a court when such order does not comply with the |
| 957 | requirements of this section. Upon receipt of such an order, the |
| 958 | department must notify the issuing court, the appropriate state |
| 959 | attorney or statewide prosecutor, the petitioner or the |
| 960 | petitioner's attorney, and the arresting agency of the reason |
| 961 | for noncompliance. The appropriate state attorney or statewide |
| 962 | prosecutor shall take action within 60 days to correct the |
| 963 | record and petition the court to void the order. No cause of |
| 964 | action, including contempt of court, shall arise against any |
| 965 | criminal justice agency for failure to comply with an order to |
| 966 | seal when the petitioner for such order failed to obtain the |
| 967 | certificate of eligibility as required by this section or when |
| 968 | such order does not comply with the requirements of this |
| 969 | section. |
| 970 | (e) An order sealing a criminal history record pursuant to |
| 971 | this section does not require that such record be surrendered to |
| 972 | the court, and such record shall continue to be maintained by |
| 973 | the department and other criminal justice agencies. |
| 974 | (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal |
| 975 | history record of a minor or an adult which is ordered sealed by |
| 976 | a court of competent jurisdiction pursuant to this section is |
| 977 | confidential and exempt from the provisions of s. 119.07(1) and |
| 978 | s. 24(a), Art. I of the State Constitution and is available only |
| 979 | to the person who is the subject of the record, to the subject's |
| 980 | attorney, to criminal justice agencies for their respective |
| 981 | criminal justice purposes, which include conducting a criminal |
| 982 | history background check for approval of firearms purchases or |
| 983 | transfers as authorized by state or federal law, or to those |
| 984 | entities set forth in subparagraphs (a)1., 4., 5., and 6., and |
| 985 | 8. for their respective licensing, access authorization, and |
| 986 | employment purposes. |
| 987 | (a) The subject of a criminal history record sealed under |
| 988 | this section or under other provisions of law, including former |
| 989 | s. 893.14, former s. 901.33, and former s. 943.058, may lawfully |
| 990 | deny or fail to acknowledge the arrests covered by the sealed |
| 991 | record, except when the subject of the record: |
| 992 | 1. Is a candidate for employment with a criminal justice |
| 993 | agency; |
| 994 | 2. Is a defendant in a criminal prosecution; |
| 995 | 3. Concurrently or subsequently petitions for relief under |
| 996 | this section or s. 943.0585; |
| 997 | 4. Is a candidate for admission to The Florida Bar; |
| 998 | 5. Is seeking to be employed or licensed by or to contract |
| 999 | with the Department of Children and Family Services or the |
| 1000 | Department of Juvenile Justice or to be employed or used by such |
| 1001 | contractor or licensee in a sensitive position having direct |
| 1002 | contact with children, the developmentally disabled, the aged, |
| 1003 | or the elderly as provided in s. 110.1127(3), s. 393.063, s. |
| 1004 | 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. |
| 1005 | 409.175(2)(i), s. 415.102(4), s. 415.103, s. 916.106(10) and |
| 1006 | (13), s. 985.407, or chapter 400; or |
| 1007 | 6. Is seeking to be employed or licensed by the Department |
| 1008 | of Education, any district school board, any university |
| 1009 | laboratory school, any charter school, any private or parochial |
| 1010 | school, or any local governmental entity that licenses child |
| 1011 | care facilities;. |
| 1012 | 7. Is attempting to purchase a firearm from a licensed |
| 1013 | importer, licensed manufacturer, or licensed dealer and is |
| 1014 | subject to a criminal history background check under state or |
| 1015 | federal law; or |
| 1016 | 8. Is seeking authorization from a Florida seaport |
| 1017 | identified in s. 311.09 for employment within or access to one |
| 1018 | or more of such seaports pursuant to s. 311.12 or s. 311.125. |
| 1019 | (b) Subject to the exceptions in paragraph (a), a person |
| 1020 | who has been granted a sealing under this section, former s. |
| 1021 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
| 1022 | under any provision of law of this state to commit perjury or to |
| 1023 | be otherwise liable for giving a false statement by reason of |
| 1024 | such person's failure to recite or acknowledge a sealed criminal |
| 1025 | history record. |
| 1026 | (c) Information relating to the existence of a sealed |
| 1027 | criminal record provided in accordance with the provisions of |
| 1028 | paragraph (a) is confidential and exempt from the provisions of |
| 1029 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
| 1030 | except that the department shall disclose the sealed criminal |
| 1031 | history record to the entities set forth in subparagraphs (a)1., |
| 1032 | 4., 5., and 6., and 8. for their respective licensing, access |
| 1033 | authorization, and employment purposes. It is unlawful for any |
| 1034 | employee of an entity set forth in subparagraph (a)1., |
| 1035 | subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6., |
| 1036 | or subparagraph (a)8. to disclose information relating to the |
| 1037 | existence of a sealed criminal history record of a person |
| 1038 | seeking employment, access authorization, or licensure with such |
| 1039 | entity or contractor, except to the person to whom the criminal |
| 1040 | history record relates or to persons having direct |
| 1041 | responsibility for employment, access authorization, or |
| 1042 | licensure decisions. Any person who violates the provisions of |
| 1043 | this paragraph commits a misdemeanor of the first degree, |
| 1044 | punishable as provided in s. 775.082 or s. 775.083. |
| 1045 | (5) STATUTORY REFERENCES.--Any reference to any other |
| 1046 | chapter, section, or subdivision of the Florida Statutes in this |
| 1047 | section constitutes a general reference under the doctrine of |
| 1048 | incorporation by reference. |
| 1049 | Section 12. Subsection (5) of section 943.13, Florida |
| 1050 | Statutes, is amended to read: |
| 1051 | 943.13 Officers' minimum qualifications for employment or |
| 1052 | appointment.--On or after October 1, 1984, any person employed |
| 1053 | or appointed as a full-time, part-time, or auxiliary law |
| 1054 | enforcement officer or correctional officer; on or after October |
| 1055 | 1, 1986, any person employed as a full-time, part-time, or |
| 1056 | auxiliary correctional probation officer; and on or after |
| 1057 | October 1, 1986, any person employed as a full-time, part-time, |
| 1058 | or auxiliary correctional officer by a private entity under |
| 1059 | contract to the Department of Corrections, to a county |
| 1060 | commission, or to the Department of Management Services shall: |
| 1061 | (5) Have documentation of his or her processed |
| 1062 | fingerprints on file with the employing agency or, if a private |
| 1063 | correctional officer, have documentation of his or her processed |
| 1064 | fingerprints on file with the Department of Corrections or the |
| 1065 | Criminal Justice Standards and Training Commission. If |
| 1066 | administrative delays are caused by the department or the |
| 1067 | Federal Bureau of Investigation and the person has complied with |
| 1068 | subsections (1)-(4) and (6)-(9), he or she may be employed or |
| 1069 | appointed for a period not to exceed 1 calendar year from the |
| 1070 | date he or she was employed or appointed or until return of the |
| 1071 | processed fingerprints documenting noncompliance with |
| 1072 | subsections (1)-(4) or subsection (7), whichever occurs first. |
| 1073 | Beginning January 15, 2007, the department shall retain and |
| 1074 | enter into the statewide automated fingerprint identification |
| 1075 | system authorized by s. 943.05 all fingerprints submitted to the |
| 1076 | department as required by this section. Thereafter, the |
| 1077 | fingerprints shall be available for all purposes and uses |
| 1078 | authorized for arrest fingerprint cards entered in the statewide |
| 1079 | automated fingerprint identification system pursuant to s. |
| 1080 | 943.051. The department shall search all arrest fingerprint |
| 1081 | cards received pursuant to s. 943.051 against the fingerprints |
| 1082 | retained in the statewide automated fingerprint identification |
| 1083 | system pursuant to this section and report to the employing |
| 1084 | agency any arrest records that are identified with the retained |
| 1085 | employee's fingerprints. By January 1, 2008, a person who must |
| 1086 | meet minimum qualifications as provided in this section and |
| 1087 | whose fingerprints are not retained by the department pursuant |
| 1088 | to this section must be refingerprinted. These fingerprints must |
| 1089 | be forwarded to the department for processing and retention. |
| 1090 | Section 13. Section 943.1715, Florida Statutes, is amended |
| 1091 | to read: |
| 1092 | 943.1715 Basic skills training relating to diverse |
| 1093 | populations.--The commission shall establish and maintain |
| 1094 | standards for instruction of officers in the subject of |
| 1095 | interpersonal skills relating to diverse populations, with an |
| 1096 | emphasis on the awareness of cultural differences. Every basic |
| 1097 | skills course required in order for officers to obtain initial |
| 1098 | certification must include a minimum of 8 hours training in |
| 1099 | interpersonal skills with diverse populations. |
| 1100 | Section 14. Section 943.1716, Florida Statutes, is amended |
| 1101 | to read: |
| 1102 | 943.1716 Continued employment training relating to diverse |
| 1103 | populations.--The commission shall by rule require that each |
| 1104 | officer receive, as part of the 40 hours of required instruction |
| 1105 | for continued employment or appointment as an officer, 8 hours |
| 1106 | of instruction in the subject of interpersonal skills relating |
| 1107 | to diverse populations, with an emphasis on the awareness of |
| 1108 | cultural differences. |
| 1109 | Section 15. Section 943.2569, Florida Statutes, is |
| 1110 | repealed. |
| 1111 | Section 16. Section 943.257, Florida Statutes, is amended |
| 1112 | to read: |
| 1113 | 943.257 Independent audit documentation subject to |
| 1114 | inspection.--The Criminal Justice Standards and Training |
| 1115 | Commission or a center's advisory board may inspect and copy any |
| 1116 | documents from the center as required to carry out the |
| 1117 | commission's or the respective board's oversight |
| 1118 | responsibilities, including information and documents related to |
| 1119 | applicant evaluations and center expenditures. In addition, the |
| 1120 | commission or board may inspect and copy the documentation of |
| 1121 | any internal or independent audits conducted by or on behalf of |
| 1122 | the centers to ensure that candidate and inservice officer |
| 1123 | assessments have been made and that expenditures are in |
| 1124 | conformance with the requirements of this act and with other |
| 1125 | applicable procedures. |
| 1126 | Section 17. Subsections (1) and (3) of section 943.401, |
| 1127 | Florida Statutes, are amended to read: |
| 1128 | 943.401 Public assistance fraud.-- |
| 1129 | (1)(a) The Department of Law Enforcement shall investigate |
| 1130 | all public assistance provided to residents of the state or |
| 1131 | provided to others by the state made under the provisions of |
| 1132 | chapter 409 or chapter 414. In the course of such investigation |
| 1133 | the Department of Law Enforcement shall examine all records, |
| 1134 | including electronic benefits transfer records and make inquiry |
| 1135 | of all persons who may have knowledge as to any irregularity |
| 1136 | incidental to the disbursement of public moneys, food stamps, or |
| 1137 | other items or benefits authorizations to recipients. |
| 1138 | (b) All public assistance recipients, as a condition |
| 1139 | precedent to qualification for public assistance under the |
| 1140 | provisions of chapter 409 or chapter 414, shall first give in |
| 1141 | writing, to the Agency for Health Care Administration, the |
| 1142 | Department of Health, the Agency for Workforce Innovation, and |
| 1143 | the Department of Children and Family Services, as appropriate, |
| 1144 | and to the Department of Law Enforcement, consent to make |
| 1145 | inquiry of past or present employers and records, financial or |
| 1146 | otherwise. |
| 1147 | (3) The results of such investigation shall be reported by |
| 1148 | the Department of Law Enforcement to the appropriate legislative |
| 1149 | committees, the Agency for Health Care Administration, the |
| 1150 | Department of Health, the Agency for Workforce Innovation, and |
| 1151 | the Department of Children and Family Services, and to such |
| 1152 | others as the Department of Law Enforcement may determine. |
| 1153 | Section 18. Authority to purchase goodwill and promotional |
| 1154 | materials.-- |
| 1155 | (1) The Legislature recognizes that the Department of Law |
| 1156 | Enforcement functions as one of the state's primary law |
| 1157 | enforcement representatives in national and international |
| 1158 | meetings, conferences, and cooperative efforts. The department |
| 1159 | often hosts delegates from other federal, state, local, and |
| 1160 | international agencies and is in a position to function as a |
| 1161 | representative of the state fostering goodwill and effective |
| 1162 | interagency working relationships. It is the intent of the |
| 1163 | Legislature that the department be allowed, consistent with the |
| 1164 | dignity and integrity of the state, to purchase and distribute |
| 1165 | material and items of collection to those with whom the |
| 1166 | department has contact in meetings, conferences, and cooperative |
| 1167 | efforts. |
| 1168 | (2) In addition to expenditures separately authorized by |
| 1169 | law, the department may expend not more than $5,000 annually to |
| 1170 | purchase and distribute promotional materials or items that |
| 1171 | serve to advance with dignity and integrity the goodwill of this |
| 1172 | state and the department and to provide basic refreshments at |
| 1173 | official functions, seminars, or meetings of the department in |
| 1174 | which dignitaries or representatives from the Federal |
| 1175 | Government, other states or nationalities, or other agencies are |
| 1176 | in attendance. |
| 1177 | Section 19. Unauthorized use of Department of Law |
| 1178 | Enforcement emblems or names prohibited.-- |
| 1179 | (1) Whoever, except with the written permission of the |
| 1180 | executive director of the Department of Law Enforcement or as |
| 1181 | otherwise expressly authorized by the department, knowingly uses |
| 1182 | the words "Florida Department of Law Enforcement," the initials |
| 1183 | "F.D.L.E." or "FDLE," or the words "Florida Capitol Police," or |
| 1184 | any colorable imitation of such words or initials, or who uses a |
| 1185 | logo or emblem used by the department in connection with any |
| 1186 | advertisement, circular, book, pamphlet, or other publication, |
| 1187 | play, motion picture, broadcast, telecast, or other production, |
| 1188 | in any Internet web page or upon any product in a manner |
| 1189 | reasonably calculated to convey the impression that such |
| 1190 | advertisement, circular, book, pamphlet, or other publication, |
| 1191 | play, motion picture, broadcast, telecast, or other production, |
| 1192 | Internet web page, or product is approved, endorsed, or |
| 1193 | authorized by the Department of Law Enforcement commits a |
| 1194 | misdemeanor of the first degree, punishable as provided in s. |
| 1195 | 775.082 or s. 775.083, Florida Statutes. |
| 1196 | (2) A violation of this section may be enjoined upon suit |
| 1197 | by the department or the Department of Legal Affairs upon |
| 1198 | complaint filed in any court of competent jurisdiction. |
| 1199 | Section 20. Except as otherwise expressly provided in this |
| 1200 | act, this act shall take effect July 1, 2006. |