Florida Senate - 2022                                    SB 1720
       
       
        
       By Senator Book
       
       
       
       
       
       32-01146-22                                           20221720__
    1                        A bill to be entitled                      
    2         An act relating to sealing and expunction of criminal
    3         history records; reenacting and amending s. 943.0585,
    4         F.S.; revising the eligibility criteria a person must
    5         meet to qualify for a court-ordered expunction of a
    6         criminal history record; reenacting and amending s.
    7         943.059, F.S.; revising the eligibility criteria a
    8         person must meet to qualify for a court-ordered
    9         sealing of a criminal history record; reenacting ss.
   10         948.08(6)(d) and (7)(b), 948.16(1)(b) and (2)(b), and
   11         985.345(1)(b) and (2)(c), F.S., relating to a pretrial
   12         intervention program, specified misdemeanor
   13         intervention programs, and delinquency pretrial
   14         intervention programs, respectively, to incorporate
   15         the amendment made to s. 943.0585, F.S., in references
   16         thereto; reenacting s. 943.0582(2)(b), F.S., relating
   17         to diversion program expunction, to incorporate the
   18         amendment made to s. 943.059, F.S., in a reference
   19         thereto; reenacting s. 943.0582(4), F.S., relating to
   20         diversion program expunction, to incorporate the
   21         amendments made to ss. 943.0585 and 943.059, F.S., in
   22         references thereto; providing an effective date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Subsection (1) of section 943.0585, Florida
   27  Statutes, is reenacted and amended, paragraph (a) of subsection
   28  (2) of that section is amended, and paragraph (b) of subsection
   29  (6) of that section is reenacted, to read:
   30         943.0585 Court-ordered expunction of criminal history
   31  records.—
   32         (1) ELIGIBILITY.—A person is eligible to petition a court
   33  to expunge a criminal history record if:
   34         (a) An indictment, information, or other charging document
   35  was not filed or issued in the case giving rise to the criminal
   36  history record.
   37         (b) An indictment, information, or other charging document
   38  was filed or issued in the case giving rise to the criminal
   39  history record, was dismissed or nolle prosequi by the state
   40  attorney or statewide prosecutor, or was dismissed by a court of
   41  competent jurisdiction or a judgment of acquittal was rendered
   42  by a judge, or a verdict of not guilty was rendered by a judge
   43  or jury.
   44         (c) The person is not seeking to expunge a criminal history
   45  record that is ineligible for court-ordered expunction under s.
   46  943.0584.
   47         (d) The person has never, As of the date the application
   48  for a certificate of expunction is filed:
   49         1.The person has never, been adjudicated guilty in this
   50  state of a criminal offense; or
   51         2.It has been at least 10 years since the person has been
   52  adjudicated guilty in this state of a criminal offense, and the
   53  person has never been adjudicated guilty of an offense listed in
   54  s. 943.0584(2).
   55         (e)As of the date the application for a certificate of
   56  expunction is filed, the person has never been adjudicated
   57  delinquent in this state for committing any felony or any of the
   58  following misdemeanors within the past 10 years, unless the
   59  record of such adjudication of delinquency has been expunged
   60  pursuant to s. 943.0515:
   61         1. Assault, as defined in s. 784.011;
   62         2. Battery, as defined in s. 784.03;
   63         3. Assault on a law enforcement officer, a firefighter, or
   64  other specified officers, as defined in s. 784.07(2)(a);
   65         4. Carrying a concealed weapon, as defined in s. 790.01(1);
   66         5. Open carrying of a weapon, as defined in s. 790.053;
   67         6. Unlawful possession or discharge of a weapon or firearm
   68  at a school-sponsored event or on school property, as defined in
   69  s. 790.115;
   70         7. Unlawful use of destructive devices or bombs, as defined
   71  in s. 790.1615(1);
   72         8. Unlawful possession of a firearm, as defined in s.
   73  790.22(5);
   74         9. Exposure of sexual organs, as defined in s. 800.03;
   75         10. Arson, as defined in s. 806.031(1);
   76         11. Petit theft, as defined in s. 812.014(3);
   77         12. Neglect of a child, as defined in s. 827.03(1)(e); or
   78         13. Cruelty to animals, as defined in s. 828.12(1).
   79         (f)(e) The person has not been adjudicated guilty of, or
   80  adjudicated delinquent for committing, any of the acts stemming
   81  from the arrest or alleged criminal activity to which the
   82  petition pertains.
   83         (g)(f) The person is no longer under court supervision
   84  applicable to the disposition of arrest or alleged criminal
   85  activity to which the petition to expunge pertains.
   86         (h)(g) The person has not within the past 10 years never
   87  secured a prior sealing or expunction of a criminal history
   88  record under this section, s. 943.059, former s. 893.14, former
   89  s. 901.33, or former s. 943.058, unless expunction is sought of
   90  a criminal history record previously sealed for 10 years
   91  pursuant to paragraph (h) and the record is otherwise eligible
   92  for expunction.
   93         (i)(h) The person has previously obtained a court-ordered
   94  sealing the criminal history record under s. 943.059, former s.
   95  893.14, former s. 901.33, or former s. 943.058 for a minimum of
   96  10 years because adjudication was withheld or because all
   97  charges related to the arrest or alleged criminal activity to
   98  which the petition to expunge pertains were not dismissed before
   99  trial, without regard to whether the outcome of the trial was
  100  other than an adjudication of guilt. Notwithstanding paragraph
  101  (h), the requirement for the record to have previously been
  102  sealed for a minimum of 10 years does not apply if a plea was
  103  not entered or all charges related to the arrest or alleged
  104  criminal activity to which the petition to expunge pertains were
  105  dismissed before trial or a judgment of acquittal was rendered
  106  by a judge or a verdict of not guilty was rendered by a judge or
  107  jury.
  108         (2) CERTIFICATE OF ELIGIBILITY.—Before petitioning a court
  109  to expunge a criminal history record, a person seeking to
  110  expunge a criminal history record must apply to the department
  111  for a certificate of eligibility for expunction. The department
  112  shall adopt rules to establish procedures for applying for and
  113  issuing a certificate of eligibility for expunction.
  114         (a) The department shall issue a certificate of eligibility
  115  for expunction to a person who is the subject of a criminal
  116  history record if that person:
  117         1. Satisfies the eligibility criteria in paragraphs (1)(a)
  118  (i) (1)(a)-(h) and is not ineligible under s. 943.0584.
  119         2. Has submitted to the department a written certified
  120  statement from the appropriate state attorney or statewide
  121  prosecutor which confirms the criminal history record complies
  122  with the criteria in paragraph (1)(a) or paragraphs (1)(b) and
  123  (c).
  124         3. Has submitted to the department a certified copy of the
  125  disposition of the charge to which the petition to expunge
  126  pertains.
  127         4. Remits a $75 processing fee to the department for
  128  placement in the Department of Law Enforcement Operating Trust
  129  Fund, unless the executive director waives such fee.
  130         (6) EFFECT OF EXPUNCTION ORDER.—
  131         (b) The person who is the subject of a criminal history
  132  record that is expunged under this section or under other
  133  provisions of law, including former ss. 893.14, 901.33, and
  134  943.058, may lawfully deny or fail to acknowledge the arrests
  135  covered by the expunged record, except when the subject of the
  136  record:
  137         1. Is a candidate for employment with a criminal justice
  138  agency;
  139         2. Is a defendant in a criminal prosecution;
  140         3. Concurrently or subsequently petitions for relief under
  141  this section, s. 943.0583, or s. 943.059;
  142         4. Is a candidate for admission to The Florida Bar;
  143         5. Is seeking to be employed or licensed by or to contract
  144  with the Department of Children and Families, the Division of
  145  Vocational Rehabilitation within the Department of Education,
  146  the Agency for Health Care Administration, the Agency for
  147  Persons with Disabilities, the Department of Health, the
  148  Department of Elderly Affairs, or the Department of Juvenile
  149  Justice or to be employed or used by such contractor or licensee
  150  in a sensitive position having direct contact with children, the
  151  disabled, or the elderly;
  152         6. Is seeking to be employed or licensed by the Department
  153  of Education, any district school board, any university
  154  laboratory school, any charter school, any private or parochial
  155  school, or any local governmental entity that licenses child
  156  care facilities;
  157         7. Is seeking to be licensed by the Division of Insurance
  158  Agent and Agency Services within the Department of Financial
  159  Services; or
  160         8. Is seeking to be appointed as a guardian pursuant to s.
  161  744.3125.
  162         Section 2. Subsection (1) of section 943.059, Florida
  163  Statutes, is reenacted and amended, and paragraph (a) of
  164  subsection (2) and paragraph (b) of subsection (6) of that
  165  section are reenacted, to read:
  166         943.059 Court-ordered sealing of criminal history records.—
  167         (1) ELIGIBILITY.—A person is eligible to petition a court
  168  to seal a criminal history record when:
  169         (a) The criminal history record is not ineligible for
  170  court-ordered sealing under s. 943.0584.
  171         (b) The person has never, before the date the application
  172  for a certificate of eligibility is filed, been adjudicated
  173  guilty in this state of a criminal offense, or been adjudicated
  174  delinquent in this state for committing any felony or any of the
  175  following misdemeanor offenses, unless the record of such
  176  adjudication of delinquency has been expunged pursuant to s.
  177  943.0515:
  178         1. Assault, as defined in s. 784.011;
  179         2. Battery, as defined in s. 784.03;
  180         3. Assault on a law enforcement officer, a firefighter, or
  181  other specified officers, as defined in s. 784.07(2)(a);
  182         4. Carrying a concealed weapon, as defined in s. 790.01(1);
  183         5. Open carrying of a weapon, as defined in s. 790.053;
  184         6. Unlawful possession or discharge of a weapon or firearm
  185  at a school-sponsored event or on school property, as defined in
  186  s. 790.115;
  187         7. Unlawful use of destructive devices or bombs, as defined
  188  in s. 790.1615(1);
  189         8. Unlawful possession of a firearm by a minor, as defined
  190  in s. 790.22(5);
  191         9. Exposure of sexual organs, as defined in s. 800.03;
  192         10. Arson, as defined in s. 806.031(1);
  193         11. Petit theft, as defined in s. 812.014(3);
  194         12. Neglect of a child, as defined in s. 827.03(1)(e); or
  195         13. Cruelty to animals, as defined in s. 828.12(1).
  196         (c) The person has not been adjudicated guilty of, or
  197  adjudicated delinquent for committing, any of the acts stemming
  198  from the arrest or alleged criminal activity to which the
  199  petition to seal pertains.
  200         (d) The person is no longer under court supervision
  201  applicable to the disposition of arrest or alleged criminal
  202  activity to which the petition to seal pertains.
  203         (e) The person has never secured a prior sealing or
  204  expunction of a criminal history record under this section, s.
  205  943.0585, former s. 893.14, former s. 901.33, or former s.
  206  943.058, or the person has one prior sealing or expunction and,
  207  as of the date the application for a certificate of eligibility
  208  is filed, more than 10 years have passed since the prior sealing
  209  or expunction was ordered.
  210         (2) CERTIFICATE OF ELIGIBILITY.—Before petitioning the
  211  court to seal a criminal history record, a person seeking to
  212  seal a criminal history record must apply to the department for
  213  a certificate of eligibility for sealing. The department shall
  214  adopt rules relating to the application for and issuance of
  215  certificates of eligibility for sealing.
  216         (a) The department shall issue a certificate of eligibility
  217  for sealing to a person who is the subject of a criminal history
  218  record if that person:
  219         1. Satisfies the eligibility criteria in paragraphs (1)(a)
  220  (e) and is not ineligible for court-ordered sealing under s.
  221  943.0584.
  222         2. Has submitted to the department a certified copy of the
  223  disposition of charge to which the petition pertains.
  224         3. Remits a $75 processing fee to the department for
  225  placement in the Department of Law Enforcement Operating Trust
  226  Fund, unless the executive director waives such fee.
  227         (6) EFFECT OF ORDER.—
  228         (b) The subject of the criminal history record sealed under
  229  this section or under other provisions of law, including former
  230  ss. 893.14, 901.33, and 943.058, may lawfully deny or fail to
  231  acknowledge the arrests covered by the sealed record, except
  232  when the subject of the record:
  233         1. Is a candidate for employment with a criminal justice
  234  agency;
  235         2. Is a defendant in a criminal prosecution;
  236         3. Concurrently or subsequently petitions for relief under
  237  this section, s. 943.0583, or s. 943.0585;
  238         4. Is a candidate for admission to The Florida Bar;
  239         5. Is seeking to be employed or licensed by or to contract
  240  with the Department of Children and Families, the Division of
  241  Vocational Rehabilitation within the Department of Education,
  242  the Agency for Health Care Administration, the Agency for
  243  Persons with Disabilities, the Department of Health, the
  244  Department of Elderly Affairs, or the Department of Juvenile
  245  Justice or to be employed or used by such contractor or licensee
  246  in a sensitive position having direct contact with children, the
  247  disabled, or the elderly;
  248         6. Is seeking to be employed or licensed by the Department
  249  of Education, a district school board, a university laboratory
  250  school, a charter school, a private or parochial school, or a
  251  local governmental entity that licenses child care facilities;
  252         7. Is attempting to purchase a firearm from a licensed
  253  importer, licensed manufacturer, or licensed dealer and is
  254  subject to a criminal history check under state or federal law;
  255         8. Is seeking to be licensed by the Division of Insurance
  256  Agent and Agency Services within the Department of Financial
  257  Services;
  258         9. Is seeking to be appointed as a guardian pursuant to s.
  259  744.3125; or
  260         10. Is seeking to be licensed by the Bureau of License
  261  Issuance of the Division of Licensing within the Department of
  262  Agriculture and Consumer Services to carry a concealed weapon or
  263  concealed firearm. This subparagraph applies only in the
  264  determination of an applicant’s eligibility under s. 790.06.
  265         Section 3. For the purpose of incorporating the amendment
  266  made by this act to section 943.0585, Florida Statutes, in
  267  references thereto, paragraph (d) of subsection (6) and
  268  paragraph (b) of subsection (7) of section 948.08, Florida
  269  Statutes, are reenacted to read:
  270         948.08 Pretrial intervention program.—
  271         (6)
  272         (d) While enrolled in a pretrial intervention program
  273  authorized by this subsection, the participant is subject to a
  274  coordinated strategy developed by a drug court team under s.
  275  397.334(4). The coordinated strategy may include a protocol of
  276  sanctions that may be imposed upon the participant for
  277  noncompliance with program rules. The protocol of sanctions may
  278  include, but is not limited to, placement in a substance abuse
  279  treatment program offered by a licensed service provider as
  280  defined in s. 397.311 or in a jail-based treatment program or
  281  serving a period of incarceration within the time limits
  282  established for contempt of court. The coordinated strategy must
  283  be provided in writing to the participant before the participant
  284  agrees to enter into a pretrial treatment-based drug court
  285  program or other pretrial intervention program. Any person whose
  286  charges are dismissed after successful completion of the
  287  treatment-based drug court program, if otherwise eligible, may
  288  have his or her arrest record and plea of nolo contendere to the
  289  dismissed charges expunged under s. 943.0585.
  290         (7)
  291         (b) While enrolled in a pretrial intervention program
  292  authorized by this subsection, the participant shall be subject
  293  to a coordinated strategy developed by a veterans’ treatment
  294  intervention team. The coordinated strategy should be modeled
  295  after the therapeutic jurisprudence principles and key
  296  components in s. 397.334(4), with treatment specific to the
  297  needs of servicemembers and veterans. The coordinated strategy
  298  may include a protocol of sanctions that may be imposed upon the
  299  participant for noncompliance with program rules. The protocol
  300  of sanctions may include, but need not be limited to, placement
  301  in a treatment program offered by a licensed service provider or
  302  in a jail-based treatment program or serving a period of
  303  incarceration within the time limits established for contempt of
  304  court. The coordinated strategy must be provided in writing to
  305  the participant before the participant agrees to enter into a
  306  pretrial veterans’ treatment intervention program or other
  307  pretrial intervention program. Any person whose charges are
  308  dismissed after successful completion of the pretrial veterans’
  309  treatment intervention program, if otherwise eligible, may have
  310  his or her arrest record of the dismissed charges expunged under
  311  s. 943.0585.
  312         Section 4. For the purpose of incorporating the amendment
  313  made by this act to section 943.0585, Florida Statutes, in
  314  references thereto, paragraph (b) of subsection (1) and
  315  paragraph (b) of subsection (2) of section 948.16, Florida
  316  Statutes, are reenacted to read:
  317         948.16 Misdemeanor pretrial substance abuse education and
  318  treatment intervention program; misdemeanor pretrial veterans’
  319  treatment intervention program; misdemeanor pretrial mental
  320  health court program.—
  321         (1)
  322         (b) While enrolled in a pretrial intervention program
  323  authorized by this section, the participant is subject to a
  324  coordinated strategy developed by a drug court team under s.
  325  397.334(4). The coordinated strategy may include a protocol of
  326  sanctions that may be imposed upon the participant for
  327  noncompliance with program rules. The protocol of sanctions may
  328  include, but is not limited to, placement in a substance abuse
  329  treatment program offered by a licensed service provider as
  330  defined in s. 397.311 or in a jail-based treatment program or
  331  serving a period of incarceration within the time limits
  332  established for contempt of court. The coordinated strategy must
  333  be provided in writing to the participant before the participant
  334  agrees to enter into a pretrial treatment-based drug court
  335  program or other pretrial intervention program. Any person whose
  336  charges are dismissed after successful completion of the
  337  treatment-based drug court program, if otherwise eligible, may
  338  have his or her arrest record and plea of nolo contendere to the
  339  dismissed charges expunged under s. 943.0585.
  340         (2)
  341         (b) While enrolled in a pretrial intervention program
  342  authorized by this section, the participant shall be subject to
  343  a coordinated strategy developed by a veterans’ treatment
  344  intervention team. The coordinated strategy should be modeled
  345  after the therapeutic jurisprudence principles and key
  346  components in s. 397.334(4), with treatment specific to the
  347  needs of veterans and servicemembers. The coordinated strategy
  348  may include a protocol of sanctions that may be imposed upon the
  349  participant for noncompliance with program rules. The protocol
  350  of sanctions may include, but need not be limited to, placement
  351  in a treatment program offered by a licensed service provider or
  352  in a jail-based treatment program or serving a period of
  353  incarceration within the time limits established for contempt of
  354  court. The coordinated strategy must be provided in writing to
  355  the participant before the participant agrees to enter into a
  356  misdemeanor pretrial veterans’ treatment intervention program or
  357  other pretrial intervention program. Any person whose charges
  358  are dismissed after successful completion of the misdemeanor
  359  pretrial veterans’ treatment intervention program, if otherwise
  360  eligible, may have his or her arrest record of the dismissed
  361  charges expunged under s. 943.0585.
  362         Section 5. For the purpose of incorporating the amendment
  363  made by this act to section 943.0585, Florida Statutes, in
  364  references thereto, paragraph (b) of subsection (1) and
  365  paragraph (c) of subsection (2) of section 985.345, Florida
  366  Statutes, are reenacted to read:
  367         985.345 Delinquency pretrial intervention programs.—
  368         (1)
  369         (b) While enrolled in a delinquency pretrial intervention
  370  program authorized by this subsection, a child is subject to a
  371  coordinated strategy developed by a drug court team under s.
  372  397.334(4). The coordinated strategy may include a protocol of
  373  sanctions that may be imposed upon the child for noncompliance
  374  with program rules. The protocol of sanctions may include, but
  375  is not limited to, placement in a substance abuse treatment
  376  program offered by a licensed service provider as defined in s.
  377  397.311 or serving a period of secure detention under this
  378  chapter. The coordinated strategy must be provided in writing to
  379  the child before the child agrees to enter the pretrial
  380  treatment-based drug court program or other pretrial
  381  intervention program. A child whose charges are dismissed after
  382  successful completion of the treatment-based drug court program,
  383  if otherwise eligible, may have his or her arrest record and
  384  plea of nolo contendere to the dismissed charges expunged under
  385  s. 943.0585.
  386         (2)
  387         (c) A child whose charges are dismissed after successful
  388  completion of the delinquency pretrial mental health court
  389  intervention program, if otherwise eligible, may have his or her
  390  criminal history record for such charges expunged under s.
  391  943.0585.
  392         Section 6. For the purpose of incorporating the amendment
  393  made by this act to section 943.059, Florida Statutes, in a
  394  reference thereto, paragraph (b) of subsection (2) of section
  395  943.0582, Florida Statutes, is reenacted to read:
  396         943.0582 Diversion program expunction.—
  397         (2) As used in this section, the term:
  398         (b) “Expunction” has the same meaning ascribed in and
  399  effect as s. 943.0585, except that:
  400         1. Section 943.0585(6)(b) does not apply, except that the
  401  criminal history record of a person whose record is expunged
  402  pursuant to this section shall be made available only to
  403  criminal justice agencies for the purpose of:
  404         a. Determining eligibility for diversion programs;
  405         b. A criminal investigation; or
  406         c. Making a prosecutorial decision under s. 985.15.
  407         2. Records maintained by local criminal justice agencies in
  408  the county in which the arrest occurred that are eligible for
  409  expunction pursuant to this section shall be sealed as the term
  410  is used in s. 943.059.
  411         Section 7. For the purpose of incorporating the amendments
  412  made by this act to sections 943.0585 and 943.059, Florida
  413  Statutes, in references thereto, subsection (4) of section
  414  943.0582, Florida Statutes, is reenacted to read:
  415         943.0582 Diversion program expunction.—
  416         (4) Expunction or sealing granted under this section does
  417  not prevent the minor who receives such relief from petitioning
  418  for the expunction or sealing of a later criminal history record
  419  as provided for in ss. 943.0583, 943.0585, and 943.059, if the
  420  minor is otherwise eligible under those sections.
  421         Section 8. This act shall take effect July 1, 2022.