Florida Senate - 2020 CS for SB 1504 By the Committee on Criminal Justice; and Senators Brandes, Rouson, and Bracy 591-03078A-20 20201504c1 1 A bill to be entitled 2 An act relating to sentencing; creating s. 322.3401, 3 F.S.; providing legislative intent; defining terms; 4 requiring certain persons convicted of driving while 5 license suspended, revoked, canceled, or disqualified 6 committed before a specified date to be sentenced in a 7 specified manner in accordance with the amendments in 8 chapter 2019-167, Laws of Florida; requiring 9 resentencing for persons who committed such violations 10 before a specified date and are serving terms of 11 imprisonment or supervision; specifying the procedures 12 for such resentencing; requiring outstanding fines, 13 fees, and costs to be waived; requiring certain 14 persons convicted of driving while license suspended, 15 revoked, canceled, or disqualified to have such 16 conviction treated as a misdemeanor for specified 17 purposes; creating s. 943.0587, F.S.; defining terms; 18 providing that persons who meet specified criteria are 19 eligible to petition a court to expunge a criminal 20 history record for convictions of driving while 21 license suspended, revoked, canceled, or disqualified; 22 requiring such persons to apply to the Department of 23 Law Enforcement for a certificate of eligibly for 24 expunction; requiring the department to adopt rules; 25 requiring the department to issue such certificates if 26 specified conditions are met; providing for the 27 timeframe during which a certificate is valid; 28 providing requirements for such petitions; providing 29 criminal penalties; providing court procedures 30 relating to a petition to expunge; providing for the 31 effects of expunction orders; providing effective 32 dates. 33 34 Be It Enacted by the Legislature of the State of Florida: 35 36 Section 1. Section 322.3401, Florida Statutes, is created 37 to read: 38 322.3401 Retroactive application relating to s. 322.34; 39 legislative intent; prohibiting certain sentences for specified 40 offenses; resentencing procedures.— 41 (1) It is the intent of the Legislature to retroactively 42 apply section 12 of chapter 2019-167, Laws of Florida, only as 43 provided in this section, to persons who committed driving while 44 license suspended, revoked, canceled, or disqualified before 45 October 1, 2019, the effective date of section 12 of chapter 46 2019-167, Laws of Florida, which amended s. 322.34 to modify 47 criminal penalties and collateral consequences for offenses 48 under that section. 49 (2) As used in this section, the term: 50 (a) “Former s. 322.34” is a reference to s. 322.34 as it 51 existed at any time before its amendment by chapter 2019-167, 52 Laws of Florida. 53 (b) “New s. 322.34” is a reference to s. 322.34 as it 54 exists after the amendments made by chapter 2019-167, Laws of 55 Florida, became effective. 56 (3)(a) A person who committed driving while license 57 suspended, revoked, canceled, or disqualified before October 1, 58 2019, but who was not sentenced under former s. 322.34 before 59 October 1, 2020, the effective date of this act, must be 60 sentenced in accordance with s. 775.082, s. 775.083, or s. 61 775.084 for the degree of offense as provided for in the new s. 62 322.34. 63 (b) A person who committed driving while license suspended, 64 revoked, canceled, or disqualified before October 1, 2019, who 65 was sentenced before October 1, 2019, to a term of imprisonment 66 or supervision pursuant to former s. 322.34, and who is serving 67 such penalty on or after October 1, 2020, must be resentenced in 68 accordance with paragraph (c). The person must be resentenced to 69 a sentence as provided in s. 775.082, s. 775.083, or s. 775.084. 70 (c) Resentencing under this section must occur in the 71 following manner: 72 1. A person described in paragraph (b) who is eligible to 73 request a sentence review hearing pursuant to this section shall 74 be notified of such eligibility by the facility in which the 75 person is imprisoned or the entity who is supervising the 76 person. 77 2. A person seeking a sentence review hearing under this 78 section must submit an application to the court of original 79 jurisdiction requesting such hearing to be conducted. Such 80 request by the person serves to initiate the procedures provided 81 for in this section. The sentencing court shall retain original 82 jurisdiction for the duration of the sentence for this purpose. 83 3. A person who is eligible for a sentence review hearing 84 under this section is entitled to be represented by counsel, and 85 the court shall appoint a public defender to represent the 86 person if he or she cannot afford an attorney. 87 4. Upon receiving an application from the eligible person, 88 the court of original jurisdiction shall hold a sentence review 89 hearing to determine if the eligible person meets the criteria 90 for resentencing under this section. If the court determines at 91 the sentence review hearing that the eligible person meets the 92 criteria in this section for resentencing, the court must 93 resentence the person as provided in this section; however, the 94 new sentence may not exceed the person’s original sentence with 95 credit for time served. If the court determines that such person 96 does not meet the criteria for resentencing under this section, 97 the court must provide written reasons why such person does not 98 meet such criteria. 99 (4) Notwithstanding any other law, a person who has been 100 convicted of a felony under former s. 322.34 and whose offense 101 would not be classified as a felony under the new s. 322.34, 102 must have all outstanding fines, fees, and costs related to such 103 felony conviction waived. In addition, such person must be 104 treated as if he or she had been convicted of a misdemeanor 105 violation of s. 322.34 for purposes of any right, privilege, 106 benefit, remedy, or collateral consequence that the person might 107 be entitled to but for such felony conviction. This provision 108 does not serve to remove the designation of the person as a 109 convicted felon. However, the consequences of such felony 110 conviction that are solely statutory in nature and are imposed 111 as a result of such conviction shall no longer apply. 112 Section 2. Effective upon the same date that SB 1506 or 113 similar legislation takes effect, only if such legislation is 114 adopted in the same legislative session or an extension thereof 115 and becomes a law, section 943.0587, Florida Statutes, is 116 created to read: 117 943.0587 Driving while license suspended, revoked, 118 canceled, or disqualified expunction.— 119 (1) DEFINITIONS.—As used in this section, the term: 120 (a) “Former s. 322.34” is a reference to s. 322.34 as it 121 existed at any time before its amendment by chapter 2019-167, 122 Laws of Florida. 123 (b) “New s. 322.34” is a reference to s. 322.34 as it 124 exists after the amendments made by chapter 2019-167, Laws of 125 Florida, became effective. 126 (c) “Expunction” has the same meaning ascribed in and 127 effect as s. 943.0585. 128 (2) ELIGIBILITY.—Notwithstanding any other law, a person is 129 eligible to petition a court to expunge a criminal history 130 record for a conviction under former s. 322.34 if: 131 (a) The person received a withholding of adjudication or 132 adjudication of guilt for a violation of former s. 322.34 for 133 driving while license suspended, revoked, canceled, or 134 disqualified and whose conviction would not be classified as a 135 felony under new s. 322.34; and 136 (b) The person has never been convicted of a felony other 137 than for the felony offenses of the former s. 322.34 for driving 138 while license suspended, revoked, canceled, or disqualified. 139 (3) CERTIFICATE OF ELIGIBILITY.—Before petitioning a court 140 to expunge a criminal history record under this section, a 141 person seeking to expunge a criminal history record must apply 142 to the department for a certificate of eligibility for 143 expunction. The department shall adopt rules to establish 144 procedures for applying for and issuing a certificate of 145 eligibility for expunction. 146 (a) The department shall issue a certificate of eligibility 147 for expunction to a person who is the subject of a criminal 148 history record under this section if that person: 149 1. Satisfies the eligibility criteria in subsection (2); 150 2. Has submitted to the department a written certified 151 statement from the appropriate state attorney or statewide 152 prosecutor which confirms the criminal history record complies 153 with the criteria in subsection (2); 154 3. Has submitted to the department a certified copy of the 155 disposition of the charge to which the petition to expunge 156 pertains; and 157 4. Remits a $75 processing fee to the department for 158 placement in the Department of Law Enforcement Operating Trust 159 Fund, unless the executive director waives such fee. 160 (b) A certificate of eligibility for expunction is valid 161 for 12 months after the date stamped on the certificate when 162 issued by the department. After that time, the petitioner must 163 reapply to the department for a new certificate of eligibility. 164 The petitioner’s status and the law in effect at the time of the 165 renewal application determine the petitioner’s eligibility. 166 (4) PETITION.—Each petition to expunge a criminal history 167 record must be accompanied by the following: 168 (a) A valid certificate of eligibility issued by the 169 department. 170 (b) The petitioner’s sworn statement that he or she: 171 1. Satisfies the eligibility requirements for expunction in 172 subsection (2); and 173 2. Is eligible for expunction to the best of his or her 174 knowledge. 175 (5) PENALTIES.—A person who knowingly provides false 176 information on such sworn statement commits a felony of the 177 third degree, punishable as provided in s. 775.082, s. 775.083, 178 or s. 775.084. 179 (6) COURT AUTHORITY.— 180 (a) The courts of this state have jurisdiction over their 181 own procedures, including the maintenance, expunction, and 182 correction of judicial records containing criminal history 183 information to the extent that such procedures are not 184 inconsistent with the conditions, responsibilities, and duties 185 established by this section. 186 (b) A court of competent jurisdiction shall order a 187 criminal justice agency to expunge the criminal history record 188 of a person who complies with the requirements of this section. 189 The court may not order a criminal justice agency to expunge a 190 criminal history record under this section until the person 191 seeking to expunge a criminal history record has applied for and 192 received a certificate of eligibility under subsection (3). 193 (c) Expunction granted under this section does not prevent 194 the person who receives such relief from petitioning for the 195 expunction or sealing of a later criminal history record as 196 provided for in ss. 943.0583, 943.0585, and 943.059, if the 197 person is otherwise eligible under those sections. 198 (7) PROCESSING OF A PETITION OR AN ORDER.— 199 (a) In a judicial proceeding under this section, a copy of 200 the completed petition to expunge shall be served upon the 201 appropriate state attorney or the statewide prosecutor and upon 202 the arresting agency; however, it is not necessary to make any 203 agency other than the state a party. The appropriate state 204 attorney or the statewide prosecutor and the arresting agency 205 may respond to the court regarding the completed petition to 206 expunge. 207 (b) If relief is granted by the court, the clerk of the 208 court shall certify copies of the order to the appropriate state 209 attorney or the statewide prosecutor and the arresting agency. 210 The arresting agency shall forward the order to any other agency 211 to which the arresting agency disseminated the criminal history 212 record information to which the order pertains. The department 213 shall forward the order to expunge to the Federal Bureau of 214 Investigation. The clerk of the court shall certify a copy of 215 the order to any other agency which the records of the court 216 reflect has received the criminal history record from the court. 217 (c) The department or any other criminal justice agency is 218 not required to act on an order to expunge entered by a court 219 when such order does not comply with the requirements of this 220 section. Upon receipt of such an order, the department must 221 notify the issuing court, the appropriate state attorney or 222 statewide prosecutor, the petitioner or the petitioner’s 223 attorney, and the arresting agency of the reason for 224 noncompliance. The appropriate state attorney or statewide 225 prosecutor shall take action within 60 days to correct the 226 record and petition the court to void the order. No cause of 227 action, including contempt of court, shall arise against any 228 criminal justice agency for failure to comply with an order to 229 expunge when the petitioner for such order failed to obtain the 230 certificate of eligibility as required by this section or such 231 order does not otherwise comply with the requirements of this 232 section. 233 (8) EFFECT OF EXPUNCTION ORDER.— 234 (a) The person who is the subject of a criminal history 235 record that is expunged under this section may lawfully deny or 236 fail to acknowledge the arrests and convictions covered by the 237 expunged record, except when the subject of the record: 238 1. Is a candidate for employment with a criminal justice 239 agency; 240 2. Is a defendant in a criminal prosecution; 241 3. Concurrently or subsequently petitions for relief under 242 this section, s. 943.0583, s. 943.0585, or s. 943.059; 243 4. Is a candidate for admission to The Florida Bar; 244 5. Is seeking to be employed or licensed by or to contract 245 with the Department of Children and Families, the Division of 246 Vocational Rehabilitation of the Department of Education, the 247 Agency for Health Care Administration, the Agency for Persons 248 with Disabilities, the Department of Health, the Department of 249 Elderly Affairs, or the Department of Juvenile Justice or to be 250 employed or used by such contractor or licensee in a sensitive 251 position having direct contact with children, the disabled, or 252 the elderly; 253 6. Is seeking to be employed or licensed by the Department 254 of Education, any district school board, any university 255 laboratory school, any charter school, any private or parochial 256 school, or any local governmental entity that licenses child 257 care facilities; 258 7. Is seeking to be licensed by the Division of Insurance 259 Agent and Agency Services within the Department of Financial 260 Services; or 261 8. Is seeking to be appointed as a guardian pursuant to s. 262 744.3125. 263 (b) Subject to the exceptions in paragraph (a), a person 264 who has been granted an expunction under this section may not be 265 held under any law of this state to commit perjury or to be 266 otherwise liable for giving a false statement by reason of such 267 person’s failure to recite or acknowledge an expunged criminal 268 history record. 269 Section 3. Except as otherwise expressly provided in this 270 act, this act shall take effect October 1, 2020.