Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SB 812
       
       
       
       
       
       
                                Ì908198WÎ908198                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/25/2014           .                                
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       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraphs (c), (e), and (f) of subsection (3)
    6  and subsection (5) of section 943.0582, Florida Statutes, are
    7  amended to read:
    8         943.0582 Prearrest, postarrest, or teen court diversion
    9  program expunction.—
   10         (3) The department shall expunge the nonjudicial arrest
   11  record of a minor who has successfully completed a prearrest or
   12  postarrest diversion program if that minor:
   13         (c) Submits to the department, with the application, an
   14  official written statement from the state attorney for the
   15  county in which the arrest occurred certifying that he or she
   16  has successfully completed that county’s prearrest or postarrest
   17  diversion program, that his or her participation in the program
   18  was based on an arrest for a nonviolent misdemeanor, or for a
   19  felony that does not relate to a violation of s. 393.135, s.
   20  394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s.
   21  810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s.
   22  847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a
   23  violation enumerated in s. 907.041, or any violation specified
   24  as a predicate offense for registration as a sexual predator
   25  pursuant to s. 775.21, without regard to whether that offense
   26  alone is sufficient to require such registration, or for
   27  registration as a sexual offender pursuant to s. 943.0435, and
   28  that he or she has not otherwise been charged with or found to
   29  have committed any criminal offense or comparable ordinance
   30  violation.
   31         (e) Participated in a prearrest or postarrest diversion
   32  program based on an arrest for a nonviolent misdemeanor that
   33  would not qualify as an act of domestic violence as that term is
   34  defined in s. 741.28.
   35         (e)(f) Has never, prior to filing the application for
   36  expunction, been charged with or been found to have committed
   37  any criminal offense or comparable ordinance violation.
   38         (5) In the case of a minor whose completion of the program
   39  occurred before the effective date of this section, the
   40  application for prearrest or postarrest diversion expunction
   41  must be submitted within 6 months after the effective date of
   42  this section.
   43         (6)(5) Expunction or sealing granted under this section
   44  does not prevent the minor who receives such relief from
   45  petitioning for the expunction or sealing of a later criminal
   46  history record as provided for in ss. 943.0583, 943.0585, and
   47  943.059, if the minor is otherwise eligible under those
   48  sections.
   49         Section 2. Paragraphs (a) and (h) of subsection (2) and
   50  subsection (4) of section 943.0585, Florida Statutes, are
   51  amended to read:
   52         943.0585 Court-ordered expunction of criminal history
   53  records.—The courts of this state have jurisdiction over their
   54  own procedures, including the maintenance, expunction, and
   55  correction of judicial records containing criminal history
   56  information to the extent such procedures are not inconsistent
   57  with the conditions, responsibilities, and duties established by
   58  this section. Any court of competent jurisdiction may order a
   59  criminal justice agency to expunge the criminal history record
   60  of a minor or an adult who complies with the requirements of
   61  this section. The court shall not order a criminal justice
   62  agency to expunge a criminal history record until the person
   63  seeking to expunge a criminal history record has applied for and
   64  received a certificate of eligibility for expunction pursuant to
   65  subsection (2). A criminal history record that relates to a
   66  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
   67  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
   68  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
   69  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
   70  any violation specified as a predicate offense for registration
   71  as a sexual predator pursuant to s. 775.21, without regard to
   72  whether that offense alone is sufficient to require such
   73  registration, or for registration as a sexual offender pursuant
   74  to s. 943.0435, may not be expunged, without regard to whether
   75  adjudication was withheld, if the defendant was found guilty of
   76  or pled guilty or nolo contendere to the offense, or if the
   77  defendant, as a minor, was found to have committed, or pled
   78  guilty or nolo contendere to committing, the offense as a
   79  delinquent act. The court may only order expunction of a
   80  criminal history record pertaining to one arrest or one incident
   81  of alleged criminal activity, except as provided in this
   82  section. The court may, at its sole discretion, order the
   83  expunction of a criminal history record pertaining to more than
   84  one arrest if the additional arrests directly relate to the
   85  original arrest. If the court intends to order the expunction of
   86  records pertaining to such additional arrests, such intent must
   87  be specified in the order. A criminal justice agency may not
   88  expunge any record pertaining to such additional arrests if the
   89  order to expunge does not articulate the intention of the court
   90  to expunge a record pertaining to more than one arrest. This
   91  section does not prevent the court from ordering the expunction
   92  of only a portion of a criminal history record pertaining to one
   93  arrest or one incident of alleged criminal activity.
   94  Notwithstanding any law to the contrary, a criminal justice
   95  agency may comply with laws, court orders, and official requests
   96  of other jurisdictions relating to expunction, correction, or
   97  confidential handling of criminal history records or information
   98  derived therefrom. This section does not confer any right to the
   99  expunction of any criminal history record, and any request for
  100  expunction of a criminal history record may be denied at the
  101  sole discretion of the court.
  102         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  103  petitioning the court to expunge a criminal history record, a
  104  person seeking to expunge a criminal history record shall apply
  105  to the department for a certificate of eligibility for
  106  expunction. The department shall, by rule adopted pursuant to
  107  chapter 120, establish procedures pertaining to the application
  108  for and issuance of certificates of eligibility for expunction.
  109  A certificate of eligibility for expunction is valid for 12
  110  months after the date stamped on the certificate when issued by
  111  the department. After that time, the petitioner must reapply to
  112  the department for a new certificate of eligibility. Eligibility
  113  for a renewed certification of eligibility must be based on the
  114  status of the applicant and the law in effect at the time of the
  115  renewal application. The department shall issue a certificate of
  116  eligibility for expunction to a person who is the subject of a
  117  criminal history record if that person:
  118         (a) Has obtained, and submitted to the department, a
  119  written, certified statement from the appropriate state attorney
  120  or statewide prosecutor which indicates:
  121         1. That an indictment, information, or other charging
  122  document was not filed or issued in the case.
  123         2. That an indictment, information, or other charging
  124  document, if filed or issued in the case, was dismissed or nolle
  125  prossed prosequi by the state attorney or statewide prosecutor,
  126  or was dismissed by a court of competent jurisdiction, or a
  127  judge or jury rendered a verdict of not guilty. The records of a
  128  person adjudicated not guilty by reason of insanity are not
  129  eligible for expunction under this section and that none of the
  130  charges related to the arrest or alleged criminal activity to
  131  which the petition to expunge pertains resulted in a trial,
  132  without regard to whether the outcome of the trial was other
  133  than an adjudication of guilt.
  134         3. That the criminal history record does not relate to a
  135  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  136  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  137  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  138  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  139  any violation specified as a predicate offense for registration
  140  as a sexual predator pursuant to s. 775.21, without regard to
  141  whether that offense alone is sufficient to require such
  142  registration, or for registration as a sexual offender pursuant
  143  to s. 943.0435, where the defendant was found guilty of, or pled
  144  guilty or nolo contendere to any such offense, or that the
  145  defendant, as a minor, was found to have committed, or pled
  146  guilty or nolo contendere to committing, such an offense as a
  147  delinquent act, without regard to whether adjudication was
  148  withheld.
  149         (h) Has previously obtained a court order sealing the
  150  record under this section, former s. 893.14, former s. 901.33,
  151  or former s. 943.058 for a minimum of 10 years because
  152  adjudication was withheld or because all charges related to the
  153  arrest or alleged criminal activity to which the petition to
  154  expunge pertains were not dismissed prior to trial, without
  155  regard to whether the outcome of the trial was other than an
  156  adjudication of guilt. The requirement for the record to have
  157  previously been sealed for a minimum of 10 years does not apply
  158  when a plea was not entered, when or all charges related to the
  159  arrest or alleged criminal activity to which the petition to
  160  expunge pertains were dismissed prior to trial, or when a judge
  161  or jury rendered a verdict of not guilty. The records of a
  162  person adjudicated not guilty by reason of insanity are not
  163  eligible for expunction under this section.
  164         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  165  criminal history record of a minor or an adult which is ordered
  166  expunged by a court of competent jurisdiction pursuant to this
  167  section must be physically destroyed or obliterated by any
  168  criminal justice agency having custody of such record; except
  169  that any criminal history record in the custody of the
  170  department must be retained in all cases. A criminal history
  171  record ordered expunged that is retained by the department is
  172  confidential and exempt from the provisions of s. 119.07(1) and
  173  s. 24(a), Art. I of the State Constitution and not available to
  174  any person or entity except upon order of a court of competent
  175  jurisdiction. A criminal justice agency may retain a notation
  176  indicating compliance with an order to expunge. If a person is
  177  found to be incompetent to stand trial, the expunction of the
  178  criminal history record shall not prevent entry of the judgment
  179  or finding in state and national databases for use in
  180  determining eligibility to purchase or possess a firearm or to
  181  carry a concealed firearm, as authorized in s. 790.065(2)(a)4.c.
  182  and 18 U.S.C. s. 922(t), nor shall it prevent a governmental
  183  agency that is authorized by state or federal law to determine
  184  eligibility to purchase or possess a firearm or to carry a
  185  concealed firearm from accessing or using the record of the
  186  judgment or finding in the course of such agency’s official
  187  duties.
  188         (a) The person who is the subject of a criminal history
  189  record that is expunged under this section or under other
  190  provisions of law, including former s. 893.14, former s. 901.33,
  191  and former s. 943.058, may lawfully deny or fail to acknowledge
  192  the arrests covered by the expunged record, except when the
  193  subject of the record:
  194         1. Is a candidate for employment with a criminal justice
  195  agency;
  196         2. Is a defendant in a criminal prosecution;
  197         3. Concurrently or subsequently petitions for relief under
  198  this section, s. 943.0583, or s. 943.059;
  199         4. Is a candidate for admission to The Florida Bar;
  200         5. Is seeking to be employed or licensed by or to contract
  201  with the Department of Children and Families, the Division of
  202  Vocational Rehabilitation within the Department of Education,
  203  the Agency for Health Care Administration, the Agency for
  204  Persons with Disabilities, the Department of Health, the
  205  Department of Elderly Affairs, or the Department of Juvenile
  206  Justice or to be employed or used by such contractor or licensee
  207  in a sensitive position having direct contact with children, the
  208  disabled, or the elderly; or
  209         6. Is seeking to be employed or licensed by the Department
  210  of Education, any district school board, any university
  211  laboratory school, any charter school, any private or parochial
  212  school, or any local governmental entity that licenses child
  213  care facilities.
  214         (b) Subject to the exceptions in paragraph (a), a person
  215  who has been granted an expunction under this section, former s.
  216  893.14, former s. 901.33, or former s. 943.058 may not be held
  217  under any provision of law of this state to commit perjury or to
  218  be otherwise liable for giving a false statement by reason of
  219  such person’s failure to recite or acknowledge an expunged
  220  criminal history record.
  221         (c) Information relating to the existence of an expunged
  222  criminal history record which is provided in accordance with
  223  paragraph (a) is confidential and exempt from the provisions of
  224  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  225  except that the department shall disclose the existence of a
  226  criminal history record ordered expunged to the entities set
  227  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  228  respective licensing, access authorization, and employment
  229  purposes, and to criminal justice agencies for their respective
  230  criminal justice purposes, and with respect to a governmental
  231  agency that is authorized by state or federal law to determine
  232  eligibility to purchase or possess a firearm or to carry a
  233  concealed firearm, the department shall disclose the record of a
  234  finding of incompetence to stand trial for use in the course of
  235  such agency’s official duties. It is unlawful for any employee
  236  of an entity set forth in subparagraph (a)1., subparagraph
  237  (a)4., subparagraph (a)5., subparagraph (a)6., or subparagraph
  238  (a)7. to disclose information relating to the existence of an
  239  expunged criminal history record of a person seeking employment,
  240  access authorization, or licensure with such entity or
  241  contractor, except to the person to whom the criminal history
  242  record relates or to persons having direct responsibility for
  243  employment, access authorization, or licensure decisions. Any
  244  person who violates this paragraph commits a misdemeanor of the
  245  first degree, punishable as provided in s. 775.082 or s.
  246  775.083.
  247         Section 3. This act shall take effect July 1, 2014.
  248  
  249  ================= T I T L E  A M E N D M E N T ================
  250  And the title is amended as follows:
  251         Delete everything before the enacting clause
  252  and insert:
  253                        A bill to be entitled                      
  254         An act relating to expunction; amending s. 943.0582,
  255         F.S.; allowing minors who have certain felony arrests
  256         to have the Department of Law Enforcement expunge
  257         their nonjudicial arrest record upon successful
  258         completion of a prearrest or postarrest diversion
  259         program; extending the application submission date for
  260         minors who completed the program before a certain
  261         date; amending s. 943.0585, F.S.; revising the
  262         information that must be provided in the written
  263         statement from the state attorney or statewide
  264         prosecutor in order for a person to be eligible for a
  265         criminal history record expunction; revising when a
  266         certificate of eligibility for expunction shall be
  267         issued; authorizing the Department of Law Enforcement
  268         to enter certain expunged records in specified
  269         databases; requiring the Department of Law Enforcement
  270         to disclose certain expunged records to specified
  271         governmental entities; providing an effective date.