Florida Senate - 2021                              CS for SB 468
       By the Committee on Judiciary; and Senator Bracy
       590-02872-21                                           2021468c1
    1                        A bill to be entitled                      
    2         An act relating to expunction of criminal history
    3         records relating to certain cannabis offenses;
    4         creating s. 943.0586, F.S.; providing for eligibility;
    5         requiring a petitioner to obtain a certificate of
    6         eligibility from the Department of Law Enforcement;
    7         requiring the department to adopt rules; providing
    8         application requirements and contents of a certificate
    9         of eligibility for expunction; requiring the
   10         department to issue a certificate of eligibility for
   11         expunction if a person meets specified criteria;
   12         providing contents of a petition; providing court
   13         procedures for expungement; providing that the subject
   14         of an expungement order may lawfully deny or fail to
   15         acknowledge the arrest and notice to appear; providing
   16         exceptions; providing that a petition for expunction
   17         of certain cannabis offenses does not foreclose the
   18         petitioner from applying to seal or expunge other
   19         criminal arrests; providing an effective date.
   21  Be It Enacted by the Legislature of the State of Florida:
   23         Section 1. Section 943.0586, Florida Statutes, is created
   24  to read:
   25         943.0586 Expunction of criminal history records relating to
   26  qualifying cannabis offenses.—
   27         (1) ELIGIBILITY.—A person is eligible to petition a court
   28  to expunge a criminal history record under this section if all
   29  of the following apply:
   30         (a) The person was arrested or given a notice to appear for
   31  a misdemeanor offense for obtaining, purchasing, or possessing
   32  20 grams or less of cannabis, regardless of disposition.
   33         (b)The person was not convicted of, or did not plead no
   34  contest to, a contemporaneous offense other than the misdemeanor
   35  offense for obtaining, purchasing, or possessing 20 grams or
   36  less of cannabis.
   37         (c)At least one year has elapsed since the disposition of
   38  the arrest or alleged criminal activity to which the petition to
   39  expunge pertains.
   40         (d)The person is no longer under court supervision
   41  applicable to the disposition of the arrest or alleged criminal
   42  activity to which the petition to expunge pertains.
   43         (e)The person has not previously been granted relief under
   44  this section.
   45         (2) CERTIFICATE OF ELIGIBILITY.—Before petitioning a court
   46  to expunge a criminal history record, a person seeking to
   47  expunge a criminal history record must apply to the department
   48  for a certificate of eligibility for expunction. The department
   49  shall adopt rules to establish procedures for applying for and
   50  issuing a certificate of eligibility for expunction.
   51         (a) The department shall issue a certificate of eligibility
   52  for expunction to a person who is the subject of a criminal
   53  history record if that person:
   54         1. Satisfies the eligibility criteria in paragraphs (1)(a)
   55  (e) and is not ineligible under s. 943.0584;
   56         2. Has submitted to the department a written certified
   57  statement from the appropriate state attorney or statewide
   58  prosecutor which confirms the criminal history record complies
   59  with the criteria in paragraphs (1)(a)-(d);
   60         3. Has submitted to the department a certified copy of the
   61  disposition of the charge to which the petition to expunge
   62  pertains; and
   63         4. Remits a processing fee, equal to that fee charged
   64  pursuant to s. 943.0585(2)(a)4., to the department for placement
   65  in the Department of Law Enforcement Operating Trust Fund,
   66  unless the executive director waives such fee.
   67         (b) A certificate of eligibility for expunction is valid
   68  for 12 months after the date stamped on the certificate when
   69  issued by the department. After that time, the petitioner must
   70  reapply to the department for a new certificate of eligibility.
   71  The petitioner’s status and the law in effect at the time of the
   72  renewal application determine the petitioner’s eligibility.
   73         (3) PETITION.—Each petition to expunge a criminal history
   74  record must be accompanied by all of the following:
   75         (a) A valid certificate of eligibility issued by the
   76  department.
   77         (b) The petitioner’s sworn statement that he or she:
   78         1. Satisfies the eligibility requirements for expunction in
   79  subsection (1).
   80         2. Is eligible for expunction to the best of his or her
   81  knowledge and does not have any other petition to seal or
   82  expunge a criminal history record pending before any court.
   84  A person who knowingly provides false information on such sworn
   85  statement commits a felony of the third degree, punishable as
   86  provided in s. 775.082, s. 775.083, or s. 775.084.
   87         (4) COURT AUTHORITY.—
   88         (a) The courts of this state have jurisdiction over their
   89  own procedures, including the maintenance, expunction, and
   90  correction of judicial records containing criminal history
   91  information, to the extent that such procedures are not
   92  inconsistent with the conditions, responsibilities, and duties
   93  established by this section.
   94         (b) A court of competent jurisdiction may order a criminal
   95  justice agency to expunge the criminal history record of a minor
   96  or an adult who complies with the requirements of this section.
   97  The court may not order a criminal justice agency to expunge a
   98  criminal history record until the person seeking to expunge a
   99  criminal history record has applied for and received a
  100  certificate of eligibility under subsection (2).
  101         (c) The court may order expunction of a criminal history
  102  record pertaining to one arrest or one incident of alleged
  103  criminal activity only, except that the court may order the
  104  expunction of a criminal history record pertaining to more than
  105  one arrest if the additional arrests directly relate to the
  106  original arrest. If the court intends to order the expunction of
  107  records pertaining to such additional arrests, such intent must
  108  be specified in the order. A criminal justice agency may not
  109  expunge any record pertaining to such additional arrests if the
  110  order to expunge does not articulate the intention of the court
  111  to expunge a record pertaining to more than one arrest. This
  112  section does not prevent the court from ordering the expunction
  113  of only a portion of a criminal history record pertaining to one
  114  arrest or one incident of alleged criminal activity.
  115         (d) This section does not confer any right to expunction of
  116  any criminal history record, and any request for expunction of a
  117  criminal history record may be denied at the sole discretion of
  118  the court.
  120         (a) In judicial proceedings under this section, a copy of
  121  the completed petition to expunge shall be served upon the
  122  appropriate state attorney or the statewide prosecutor and upon
  123  the arresting agency; however, it is not necessary to make any
  124  agency other than the state a party. The appropriate state
  125  attorney or the statewide prosecutor and the arresting agency
  126  may respond to the court regarding the completed petition to
  127  expunge.
  128         (b) If relief is granted by the court, the clerk of the
  129  court shall certify copies of the order to the appropriate state
  130  attorney or the statewide prosecutor and the arresting agency.
  131  The arresting agency shall forward the order to any other agency
  132  to which the arresting agency disseminated the criminal history
  133  record information to which the order pertains. The department
  134  shall forward the order to expunge to the Federal Bureau of
  135  Investigation. The clerk of the court shall certify a copy of
  136  the order to any other agency which the records of the court
  137  reflect has received the criminal history record from the court.
  138         (c) The department or any other criminal justice agency is
  139  not required to act on an order to expunge entered by a court
  140  when such order does not comply with the requirements of this
  141  section. Upon receipt of such an order, the department must
  142  notify the issuing court, the appropriate state attorney or
  143  statewide prosecutor, the petitioner or the petitioner’s
  144  attorney, and the arresting agency of the reason for
  145  noncompliance. The appropriate state attorney or statewide
  146  prosecutor shall take action within 60 days to correct the
  147  record and petition the court to void the order. No cause of
  148  action, including contempt of court, shall arise against any
  149  criminal justice agency for failure to comply with an order to
  150  expunge when the petitioner for such order failed to obtain the
  151  certificate of eligibility as required by this section or such
  152  order does not otherwise comply with the requirements of this
  153  section.
  154         (6) EFFECT OF EXPUNCTION ORDER.—
  155         (a)The person who is the subject of a criminal history
  156  record that is expunged under this section may lawfully deny or
  157  fail to acknowledge the arrests and notices to appear covered by
  158  the expunged record, except when the subject of the record:
  159         1. Is a candidate for employment with a criminal justice
  160  agency;
  161         2.Is a defendant in a criminal prosecution;
  162         3.Is a candidate for admission to The Florida Bar;
  163         4. Is seeking to be employed or licensed by or to contract
  164  with the Department of Children and Families, the Division of
  165  Vocational Rehabilitation within the Department of Education,
  166  the Agency for Health Care Administration, the Agency for
  167  Persons with Disabilities, the Department of Health, the
  168  Department of Elderly Affairs, or the Department of Juvenile
  169  Justice or to be employed or used by such contractor or licensee
  170  in a sensitive position having direct contact with children, the
  171  disabled, or the elderly;
  172         5. Is seeking to be employed or licensed by the Department
  173  of Education, any district school board, any university
  174  laboratory school, any charter school, any private or parochial
  175  school, or any local governmental entity that licenses child
  176  care facilities;
  177         6. Is seeking to be licensed by the Division of Insurance
  178  Agent and Agency Services within the Department of Financial
  179  Services; or
  180         7. Is seeking to be appointed as a guardian pursuant to s.
  181  744.3125.
  182         (b) Subject to the exceptions in paragraph (a), a person
  183  who has been granted an expunction under this section may not be
  184  held under any provision of law of this state to commit perjury
  185  or to be otherwise liable for giving a false statement by reason
  186  of such person’s failure to recite or acknowledge an expunged
  187  criminal history record.
  189  Expunction or sealing granted under this section does not
  190  prevent the person who receives such relief from petitioning for
  191  the expunction or sealing of a criminal history record as
  192  provided for in ss. 943.0583, 943.0585, and 943.059, if the
  193  person is otherwise eligible under those sections.
  194         Section 2. This act shall take effect July 1, 2021.