Bill Text: FL H0449 | 2011 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Criminal Justice
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Introduced - Dead) 2011-04-26 - Substituted CS/SB 146 [H0449 Detail]
Download: Florida-2011-H0449-Introduced.html
Bill Title: Criminal Justice
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Introduced - Dead) 2011-04-26 - Substituted CS/SB 146 [H0449 Detail]
Download: Florida-2011-H0449-Introduced.html
HB 449 |
1 | |
2 | An act relating to criminal justice; providing a short |
3 | title; providing legislative intent; requiring state |
4 | agencies and regulatory boards to prepare reports that |
5 | identify and evaluate restrictions on licensing and |
6 | employment for ex-offenders; amending s. 112.011, F.S.; |
7 | prohibiting state agencies from denying an application for |
8 | a license, permit, certificate, or employment based on a |
9 | person's lack of civil rights; providing an exception; |
10 | amending s. 768.096, F.S.; requiring an employer to review |
11 | the results of a criminal background investigation; |
12 | requiring an employer not to place an employee who has a |
13 | criminal record in a position where conduct similar to the |
14 | employee's past criminal conduct would be facilitated; |
15 | requiring an employer to determine that the criminal |
16 | background investigation does not demonstrate that the |
17 | employee is unsuitable for the particular work to be |
18 | performed or the context of the employment in general; |
19 | amending s. 943.0585, F.S.; clarifying under what |
20 | circumstances a person may legally deny the existence of |
21 | an expunged criminal history record; authorizing the |
22 | disclosure of the contents of an expunged record upon |
23 | receipt of a written, notarized request from the record |
24 | subject; requiring clerks of the court to post information |
25 | relating to procedures to seal or expunge criminal history |
26 | records on the clerk's website; amending s. 943.059, F.S.; |
27 | clarifying under what circumstances a person may legally |
28 | deny the existence of a sealed criminal history record; |
29 | authorizing a court to seal a criminal history record of a |
30 | person who had a prior criminal history record sealed or |
31 | expunged; providing an effective date. |
32 | |
33 | Be It Enacted by the Legislature of the State of Florida: |
34 | |
35 | Section 1. This act may be cited as the "Jim King Keep |
36 | Florida Working Act." |
37 | Section 2. Restrictions on the employment of ex-offenders; |
38 | legislative intent; state agency reporting requirements.- |
39 | (1) The Legislature declares that a goal of this state is |
40 | to clearly identify the occupations from which ex-offenders are |
41 | disqualified based on their specific offenses. The Legislature |
42 | intends to make employment opportunities available to ex- |
43 | offenders in a manner that encourages them to become productive |
44 | members of society and preserves the safety of the public. To |
45 | this end, all state agencies shall identify all restrictions on |
46 | employment imposed by the agencies or by boards that regulate |
47 | professions and occupations and attempt to define each |
48 | restriction as narrowly as possible while continuing to maintain |
49 | public safety. |
50 | (2) Each state agency, including, but not limited to, |
51 | professional and occupational regulatory boards, shall, by |
52 | December 31, 2011, and every 8 years thereafter, submit to the |
53 | Governor, the President of the Senate, and the Speaker of the |
54 | House of Representatives a report that includes: |
55 | (a) A list of all agency or board policies that disqualify |
56 | from employment or licensure persons who have been convicted of |
57 | a crime and have completed any incarceration and restitution to |
58 | which they have been sentenced for such a crime. |
59 | (b) A determination of whether the disqualifying policies |
60 | are readily available to prospective employers and licensees. |
61 | (c) The identification and evaluation of alternatives to |
62 | the disqualifying policies which promote the employment of ex- |
63 | offenders and protect the public. |
64 | (d) An evaluation of whether the disqualifying polices are |
65 | too broad and whether crimes or acts of moral turpitude that |
66 | disqualify a person from licensure should be more specifically |
67 | or narrowly identified. |
68 | Section 3. Section 112.011, Florida Statutes, is amended |
69 | to read: |
70 | 112.011 Disqualification from licensing and public |
71 | employment based on criminal conviction |
72 | |
73 | (1)(a) Except as provided in s. 775.16, a person may |
74 | not be disqualified from employment by the state, any of its |
75 | agencies or political subdivisions, or any municipality solely |
76 | because of a prior conviction for a crime. However, a person may |
77 | be denied employment by the state, any of its agencies or |
78 | political subdivisions, or any municipality by reason of the |
79 | prior conviction for a crime if the crime was a felony or first |
80 | degree misdemeanor and directly related to the position of |
81 | employment sought. |
82 | (b) Except as provided in s. 775.16, a person |
83 | |
84 | |
85 | |
86 | |
87 | |
88 | |
89 | |
90 | permit, or certification to pursue, practice, or engage in an |
91 | occupation, trade, vocation, profession, or business by reason |
92 | of the prior conviction for a crime if the crime was a felony or |
93 | first-degree |
94 | standards normally associated with, or determined by the |
95 | regulatory authority to be necessary for the protection of the |
96 | public or other parties for, |
97 | specific occupation, trade, vocation, profession, or business |
98 | for which the license, permit, or certificate is sought. |
99 | (c) Notwithstanding any law to the contrary, a state |
100 | agency may not deny an application for a license, permit, |
101 | certificate, or employment based on the applicant's lack of |
102 | civil rights. However, this paragraph does not apply to |
103 | applications for a license to carry a concealed weapon or |
104 | firearm under chapter 790. |
105 | (2)(a) This section does |
106 | any law enforcement or correctional agency. |
107 | (b) This section does |
108 | employment practices of any fire department relating to the |
109 | hiring of firefighters. An applicant for employment with any |
110 | fire department who has |
111 | excluded from employment for a period of 4 years after |
112 | expiration of sentence or final release by the Parole Commission |
113 | unless the applicant, before |
114 | year period, has received a full pardon or has had his or her |
115 | civil rights restored. |
116 | (c) This section does |
117 | employment practices of any county or municipality relating to |
118 | the hiring of personnel for positions deemed to be critical to |
119 | security or public safety pursuant to ss. 125.5801 and 166.0442. |
120 | (3) Any complaint concerning the violation of this section |
121 | shall be adjudicated in accordance with the procedures set forth |
122 | in chapter 120 for administrative and judicial review. |
123 | Section 4. Section 768.096, Florida Statutes, is amended |
124 | to read: |
125 | 768.096 Employer presumption against negligent hiring.- |
126 | (1) In a civil action for the death of, or injury or |
127 | damage to, a third person caused by the intentional tort of an |
128 | employee, such employee's employer is presumed not to have been |
129 | negligent in hiring such employee if, before hiring the |
130 | employee, the employer conducted a background investigation of |
131 | the prospective employee and the investigation did not reveal |
132 | any information that reasonably demonstrated the unsuitability |
133 | of the prospective employee for the particular work to be |
134 | performed or for the context of the employment in general. A |
135 | background investigation under this section must include: |
136 | (a) Obtaining a criminal background investigation on the |
137 | prospective employee under subsection (2); |
138 | (b) Making a reasonable effort to contact references and |
139 | former employers of the prospective employee concerning the |
140 | suitability of the prospective employee for employment; |
141 | (c) Requiring the prospective employee to complete a job |
142 | application form that includes questions concerning whether he |
143 | or she has ever been convicted of a crime, including details |
144 | concerning the type of crime, the date of conviction and the |
145 | penalty imposed, and whether the prospective employee has ever |
146 | been a defendant in a civil action for intentional tort, |
147 | including the nature of the intentional tort and the disposition |
148 | of the action; |
149 | (d) Obtaining, with written authorization from the |
150 | prospective employee, a check of the driver's license record of |
151 | the prospective employee if such a check is relevant to the work |
152 | the employee will be performing and if the record can reasonably |
153 | be obtained; and |
154 | (e) Interviewing the prospective employee. |
155 | (2) To satisfy the criminal-background-investigation |
156 | requirement of this section, an employer must request and obtain |
157 | from the Department of Law Enforcement a check of the |
158 | information as reported and reflected in the Florida Crime |
159 | Information Center system as of the date of the request. The |
160 | employer must review and consider the results of the criminal |
161 | background investigation. If the prospective employee has |
162 | engaged in past criminal conduct, the employer must ensure that |
163 | the employee will not be assigned to particular work that will |
164 | place the employee in a position in which conduct that is |
165 | similar to the employee's past criminal conduct is facilitated. |
166 | The employer must also determine that, notwithstanding the past |
167 | criminal conduct of the employee, any information revealed by |
168 | the investigation did not otherwise demonstrate the |
169 | unsuitability of the employee for the particular work to be |
170 | performed or the context of the employment in general. |
171 | (3) The election by an employer not to conduct the |
172 | investigation specified in subsection (1) does not raise any |
173 | presumption that the employer failed to use reasonable care in |
174 | hiring an employee. |
175 | Section 5. Section 943.0585, Florida Statutes, is amended |
176 | to read: |
177 | 943.0585 Court-ordered expunction of criminal history |
178 | records.-The courts of this state have jurisdiction over their |
179 | own procedures, including the maintenance, expunction, and |
180 | correction of judicial records containing criminal history |
181 | information to the extent such procedures are not inconsistent |
182 | with the conditions, responsibilities, and duties established by |
183 | this section. Any court of competent jurisdiction may order a |
184 | criminal justice agency to expunge the criminal history record |
185 | of a minor or an adult who complies with the requirements of |
186 | this section. The court may |
187 | agency to expunge a criminal history record until the person |
188 | seeking to expunge a criminal history record has applied for and |
189 | received a certificate of eligibility for expunction pursuant to |
190 | subsection (2). A criminal history record that relates to a |
191 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
192 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
193 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
194 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
195 | any violation specified as a predicate offense for registration |
196 | as a sexual predator pursuant to s. 775.21, without regard to |
197 | whether that offense alone is sufficient to require such |
198 | registration, or for registration as a sexual offender pursuant |
199 | to s. 943.0435, may not be expunged, without regard to whether |
200 | adjudication was withheld, if the defendant was found guilty of |
201 | or pled guilty or nolo contendere to the offense, or if the |
202 | defendant, as a minor, was found to have committed, or pled |
203 | guilty or nolo contendere to committing, the offense as a |
204 | delinquent act. The court may only order expunction of a |
205 | criminal history record pertaining to one arrest or one incident |
206 | of alleged criminal activity, except as provided in this |
207 | section. The court may, at its sole discretion, order the |
208 | expunction of a criminal history record pertaining to more than |
209 | one arrest if the additional arrests directly relate to the |
210 | original arrest. If the court intends to order the expunction of |
211 | records pertaining to such additional arrests, such intent must |
212 | be specified in the order. A criminal justice agency may not |
213 | expunge any record pertaining to such additional arrests if the |
214 | order to expunge does not articulate the intention of the court |
215 | to expunge a record pertaining to more than one arrest. This |
216 | section does not prevent the court from ordering the expunction |
217 | of only a portion of a criminal history record pertaining to one |
218 | arrest or one incident of alleged criminal activity. |
219 | Notwithstanding any law to the contrary, a criminal justice |
220 | agency may comply with laws, court orders, and official requests |
221 | of other jurisdictions relating to expunction, correction, or |
222 | confidential handling of criminal history records or information |
223 | derived therefrom. This section does not confer any right to the |
224 | expunction of any criminal history record, and any request for |
225 | expunction of a criminal history record may be denied at the |
226 | sole discretion of the court. |
227 | (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each |
228 | petition to a court to expunge a criminal history record is |
229 | complete only when accompanied by: |
230 | (a) A valid certificate of eligibility for expunction |
231 | issued by the department pursuant to subsection (2). |
232 | (b) The petitioner's sworn statement attesting that the |
233 | petitioner: |
234 | 1. Has never, before |
235 | petition is filed, been adjudicated guilty of a criminal offense |
236 | or comparable ordinance violation, or been adjudicated |
237 | delinquent for committing any felony or a misdemeanor specified |
238 | in s. 943.051(3)(b). |
239 | 2. Has not been adjudicated guilty of, or adjudicated |
240 | delinquent for committing, any of the acts stemming from the |
241 | arrest or alleged criminal activity to which the petition |
242 | pertains. |
243 | 3. Has never secured a prior sealing or expunction of a |
244 | criminal history record under this section, former s. 893.14, |
245 | former s. 901.33, or former s. 943.058, or from any jurisdiction |
246 | outside the state, unless expunction is sought of a criminal |
247 | history record previously sealed for 10 years pursuant to |
248 | paragraph (2)(h) and the record is otherwise eligible for |
249 | expunction. |
250 | 4. Is eligible for such an expunction to the best of his |
251 | or her knowledge or belief and does not have any other petition |
252 | to expunge or any petition to seal pending before any court. |
253 | |
254 | Any person who knowingly provides false information on such |
255 | sworn statement to the court commits a felony of the third |
256 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
257 | 775.084. |
258 | (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Before |
259 | |
260 | record, a person seeking to expunge a criminal history record |
261 | must |
262 | eligibility for expunction. The department shall, by rule |
263 | adopted pursuant to chapter 120, establish procedures pertaining |
264 | to the application for and issuance of certificates of |
265 | eligibility for expunction. A certificate of eligibility for |
266 | expunction is valid for 12 months after the date stamped on the |
267 | certificate when issued by the department. After that time, the |
268 | petitioner must reapply to the department for a new certificate |
269 | of eligibility. Eligibility for a renewed certification of |
270 | eligibility must be based on the status of the applicant and the |
271 | law in effect at the time of the renewal application. The |
272 | department shall issue a certificate of eligibility for |
273 | expunction to a person who is the subject of a criminal history |
274 | record if that person: |
275 | (a) Has obtained, and submitted to the department, a |
276 | written, certified statement from the appropriate state attorney |
277 | or statewide prosecutor which indicates: |
278 | 1. That an indictment, information, or other charging |
279 | document was not filed or issued in the case. |
280 | 2. That an indictment, information, or other charging |
281 | document, if filed or issued in the case, was dismissed or nolle |
282 | prosequi by the state attorney or statewide prosecutor, or was |
283 | dismissed by a court of competent jurisdiction, and that none of |
284 | the charges related to the arrest or alleged criminal activity |
285 | to which the petition to expunge pertains resulted in a trial, |
286 | without regard to whether the outcome of the trial was other |
287 | than an adjudication of guilt. |
288 | 3. That the criminal history record does not relate to a |
289 | violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, |
290 | s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. |
291 | 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. |
292 | 893.135, s. 916.1075, a violation enumerated in s. 907.041, or |
293 | any violation specified as a predicate offense for registration |
294 | as a sexual predator pursuant to s. 775.21, without regard to |
295 | whether that offense alone is sufficient to require such |
296 | registration, or for registration as a sexual offender pursuant |
297 | to s. 943.0435, where the defendant was found guilty of, or pled |
298 | guilty or nolo contendere to any such offense, or that the |
299 | defendant, as a minor, was found to have committed, or pled |
300 | guilty or nolo contendere to committing, such an offense as a |
301 | delinquent act, without regard to whether adjudication was |
302 | withheld. |
303 | (b) Remits a $75 processing fee to the department for |
304 | placement in the Department of Law Enforcement Operating Trust |
305 | Fund, unless such fee is waived by the executive director. |
306 | (c) Has submitted to the department a certified copy of |
307 | the disposition of the charge to which the petition to expunge |
308 | pertains. |
309 | (d) Has never, before |
310 | application for a certificate of eligibility is filed, been |
311 | adjudicated guilty of a criminal offense or comparable ordinance |
312 | violation, or been adjudicated delinquent for committing any |
313 | felony or a misdemeanor specified in s. 943.051(3)(b). |
314 | (e) Has not been adjudicated guilty of, or adjudicated |
315 | delinquent for committing, any of the acts stemming from the |
316 | arrest or alleged criminal activity to which the petition to |
317 | expunge pertains. |
318 | (f) Has never secured a prior sealing or expunction of a |
319 | criminal history record under this section, former s. 893.14, |
320 | former s. 901.33, or former s. 943.058, unless expunction is |
321 | sought of a criminal history record previously sealed for 10 |
322 | years pursuant to paragraph (h) and the record is otherwise |
323 | eligible for expunction. |
324 | (g) Is no longer under court supervision applicable to the |
325 | disposition of the arrest or alleged criminal activity to which |
326 | the petition to expunge pertains. |
327 | (h) Has previously obtained a court order sealing the |
328 | record under this section, former s. 893.14, former s. 901.33, |
329 | or former s. 943.058 for a minimum of 10 years because |
330 | adjudication was withheld or because all charges related to the |
331 | arrest or alleged criminal activity to which the petition to |
332 | expunge pertains were not dismissed before |
333 | without regard to whether the outcome of the trial was other |
334 | than an adjudication of guilt. The requirement for the record to |
335 | have previously been sealed for a minimum of 10 years does not |
336 | apply when a plea was not entered or all charges related to the |
337 | arrest or alleged criminal activity to which the petition to |
338 | expunge pertains were dismissed before |
339 | (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.- |
340 | (a) In judicial proceedings under this section, a copy of |
341 | the completed petition to expunge must |
342 | appropriate state attorney or the statewide prosecutor and upon |
343 | the arresting agency; however, it is not necessary to make any |
344 | agency other than the state a party. The appropriate state |
345 | attorney or the statewide prosecutor and the arresting agency |
346 | may respond to the court regarding the completed petition to |
347 | expunge. |
348 | (b) If relief is granted by the court, the clerk of the |
349 | court shall certify copies of the order to the appropriate state |
350 | attorney or the statewide prosecutor and the arresting agency. |
351 | The arresting agency is responsible for forwarding the order to |
352 | any other agency to which the arresting agency disseminated the |
353 | criminal history record information to which the order pertains. |
354 | The department shall forward the order to expunge to the Federal |
355 | Bureau of Investigation. The clerk of the court shall certify a |
356 | copy of the order to any other agency which the records of the |
357 | court reflect has received the criminal history record from the |
358 | court. |
359 | (c) For an order to expunge entered by a court before |
360 | |
361 | appropriate state attorney or statewide prosecutor of an order |
362 | to expunge which is contrary to law because the person who is |
363 | the subject of the record has previously been convicted of a |
364 | crime or comparable ordinance violation or has had a prior |
365 | criminal history record sealed or expunged. Upon receipt of such |
366 | notice, the appropriate state attorney or statewide prosecutor |
367 | shall take action, within 60 days, to correct the record and |
368 | petition the court to void the order to expunge. The department |
369 | shall seal the record until such time as the order is voided by |
370 | the court. |
371 | (d) On or after July 1, 1992, the department or any other |
372 | criminal justice agency is not required to act on an order to |
373 | expunge entered by a court when such order does not comply with |
374 | the requirements of this section. Upon receipt of such an order, |
375 | the department must notify the issuing court, the appropriate |
376 | state attorney or statewide prosecutor, the petitioner or the |
377 | petitioner's attorney, and the arresting agency of the reason |
378 | for noncompliance. The appropriate state attorney or statewide |
379 | prosecutor shall take action within 60 days to correct the |
380 | record and petition the court to void the order. A |
381 | action, including contempt of court, does not |
382 | against any criminal justice agency for failure to comply with |
383 | an order to expunge if |
384 | to obtain the certificate of eligibility as required by this |
385 | section or such order does not otherwise comply with the |
386 | requirements of this section. |
387 | (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.-Any |
388 | criminal history record of a minor or an adult which is ordered |
389 | expunged by a court of competent jurisdiction pursuant to this |
390 | section must be physically destroyed or obliterated by any |
391 | criminal justice agency having custody of such record; except |
392 | that any criminal history record in the custody of the |
393 | department must be retained in all cases. A criminal history |
394 | record ordered expunged that is retained by the department is |
395 | confidential and exempt from the provisions of s. 119.07(1) and |
396 | s. 24(a), Art. I of the State Constitution and not available to |
397 | any person or entity except upon order of a court of competent |
398 | jurisdiction. A criminal justice agency may retain a notation |
399 | indicating compliance with an order to expunge. |
400 | (a) The person who is the subject of a criminal history |
401 | record that is expunged under this section or under other |
402 | provisions of law, including former s. 893.14, former s. 901.33, |
403 | and former s. 943.058, may lawfully deny or fail to acknowledge |
404 | the arrests and subsequent dispositions covered by the expunged |
405 | record, except when the subject of the record: |
406 | 1. Is a candidate for employment with a criminal justice |
407 | agency; |
408 | 2. Is a defendant in a criminal prosecution; |
409 | 3. Concurrently or subsequently petitions for relief under |
410 | this section or s. 943.059; |
411 | 4. Is a candidate for admission to The Florida Bar; |
412 | 5. Is seeking to be employed or licensed by or to contract |
413 | with the Department of Children and Family Services, the Agency |
414 | for Health Care Administration, the Agency for Persons with |
415 | Disabilities, or the Department of Juvenile Justice or to be |
416 | employed or used by such contractor or licensee in a sensitive |
417 | position having direct contact with children, the |
418 | developmentally disabled, the aged, or the elderly as provided |
419 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
420 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), |
421 | chapter 916, s. 985.644, chapter 400, or chapter 429; |
422 | 6. Is seeking to be employed or licensed by the Department |
423 | of Education, any district school board, any university |
424 | laboratory school, any charter school, any private or parochial |
425 | school, or any local governmental entity that licenses child |
426 | care facilities; or |
427 | 7. Is seeking authorization from a seaport listed in s. |
428 | 311.09 for employment within or access to one or more of such |
429 | seaports pursuant to s. 311.12. |
430 | (b) Subject to the exceptions in paragraph (a), a person |
431 | who has been granted an expunction under this section, former s. |
432 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
433 | under any provision of law of this state to commit perjury or to |
434 | be otherwise liable for giving a false statement by reason of |
435 | such person's failure to recite or acknowledge an expunged |
436 | criminal history record, including a failure to recite or |
437 | acknowledge on an employment application. |
438 | (c) Information relating to the existence of an expunged |
439 | criminal history record which is provided in accordance with |
440 | paragraph (a) is confidential and exempt from the provisions of |
441 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
442 | except that the department shall disclose the existence of a |
443 | criminal history record ordered expunged to the entities set |
444 | forth in subparagraphs (a)1., 4., 5., 6., and 7. for their |
445 | respective licensing, access authorization, and employment |
446 | purposes, and to criminal justice agencies for their respective |
447 | criminal justice purposes. It is unlawful for any employee of an |
448 | entity set forth in subparagraph (a)1., subparagraph (a)4., |
449 | subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to |
450 | disclose information relating to the existence of an expunged |
451 | criminal history record of a person seeking employment, access |
452 | authorization, or licensure with such entity or contractor, |
453 | except to the person to whom the criminal history record relates |
454 | or to persons having direct responsibility for employment, |
455 | access authorization, or licensure decisions. Any person who |
456 | violates this paragraph commits a misdemeanor of the first |
457 | degree, punishable as provided in s. 775.082 or s. 775.083. |
458 | (d) The department may disclose the contents of an |
459 | expunged record to the subject of the record upon the receipt of |
460 | a written, notarized request from the subject of the record. |
461 | (5) INFORMATION.-Each website for the office of a clerk of |
462 | court must include information relating to procedures to seal or |
463 | expunge criminal history records. This information must include |
464 | the link to related information on the website of the |
465 | department. |
466 | (6) |
467 | chapter, section, or subdivision of the Florida Statutes in this |
468 | section constitutes a general reference under the doctrine of |
469 | incorporation by reference. |
470 | Section 6. Section 943.059, Florida Statutes, is amended |
471 | to read: |
472 | 943.059 Court-ordered sealing of criminal history |
473 | records.-The courts of this state shall continue to have |
474 | jurisdiction over their own procedures, including the |
475 | maintenance, sealing, and correction of judicial records |
476 | containing criminal history information to the extent such |
477 | procedures are not inconsistent with the conditions, |
478 | responsibilities, and duties established by this section. Any |
479 | court of competent jurisdiction may order a criminal justice |
480 | agency to seal the criminal history record of a minor or an |
481 | adult who complies with the requirements of this section. The |
482 | court may |
483 | criminal history record until the person seeking to seal a |
484 | criminal history record has applied for and received a |
485 | certificate of eligibility for sealing pursuant to subsection |
486 | (2). A criminal history record that relates to a violation of s. |
487 | 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. |
488 | 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter |
489 | 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. |
490 | 916.1075, a violation enumerated in s. 907.041, or any violation |
491 | specified as a predicate offense for registration as a sexual |
492 | predator pursuant to s. 775.21, without regard to whether that |
493 | offense alone is sufficient to require such registration, or for |
494 | registration as a sexual offender pursuant to s. 943.0435, may |
495 | not be sealed, without regard to whether adjudication was |
496 | withheld, if the defendant was found guilty of or pled guilty or |
497 | nolo contendere to the offense, or if the defendant, as a minor, |
498 | was found to have committed or pled guilty or nolo contendere to |
499 | committing the offense as a delinquent act. The court may only |
500 | order sealing of a criminal history record pertaining to one |
501 | arrest or one incident of alleged criminal activity, except as |
502 | provided in this section. The court may, at its sole discretion, |
503 | order the sealing of a criminal history record pertaining to |
504 | more than one arrest if the additional arrests directly relate |
505 | to the original arrest. If the court intends to order the |
506 | sealing of records pertaining to such additional arrests, such |
507 | intent must be specified in the order. A criminal justice agency |
508 | may not seal any record pertaining to such additional arrests if |
509 | the order to seal does not articulate the intention of the court |
510 | to seal records pertaining to more than one arrest. This section |
511 | does not prevent the court from ordering the sealing of only a |
512 | portion of a criminal history record pertaining to one arrest or |
513 | one incident of alleged criminal activity. Notwithstanding any |
514 | law to the contrary, a criminal justice agency may comply with |
515 | laws, court orders, and official requests of other jurisdictions |
516 | relating to sealing, correction, or confidential handling of |
517 | criminal history records or information derived therefrom. This |
518 | section does not confer any right to the sealing of any criminal |
519 | history record, and any request for sealing a criminal history |
520 | record may be denied at the sole discretion of the court. |
521 | (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.-Each |
522 | petition to a court to seal a criminal history record is |
523 | complete only when accompanied by: |
524 | (a) A valid certificate of eligibility for sealing issued |
525 | by the department pursuant to subsection (2). |
526 | (b) The petitioner's sworn statement attesting that the |
527 | petitioner: |
528 | 1. Has never, before |
529 | petition is filed, been adjudicated guilty of a criminal offense |
530 | or comparable ordinance violation, or been adjudicated |
531 | delinquent for committing any felony or a misdemeanor specified |
532 | in s. 943.051(3)(b). |
533 | 2. Has not been adjudicated guilty of or adjudicated |
534 | delinquent for committing any of the acts stemming from the |
535 | arrest or alleged criminal activity to which the petition to |
536 | seal pertains. |
537 | 3. Has never secured a prior sealing, except as provided |
538 | in subsection (6), or expunction of a criminal history record |
539 | under this section, former s. 893.14, former s. 901.33, former |
540 | s. 943.058, or from any jurisdiction outside the state. |
541 | 4. Is eligible for such a sealing to the best of his or |
542 | her knowledge or belief and does not have any other petition to |
543 | seal or any petition to expunge pending before any court. |
544 | |
545 | Any person who knowingly provides false information on such |
546 | sworn statement to the court commits a felony of the third |
547 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
548 | 775.084. |
549 | (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.-Before |
550 | |
551 | person seeking to seal a criminal history record shall apply to |
552 | the department for a certificate of eligibility for sealing. The |
553 | department shall, by rule adopted pursuant to chapter 120, |
554 | establish procedures pertaining to the application for and |
555 | issuance of certificates of eligibility for sealing. A |
556 | certificate of eligibility for sealing is valid for 12 months |
557 | after the date stamped on the certificate when issued by the |
558 | department. After that time, the petitioner must reapply to the |
559 | department for a new certificate of eligibility. Eligibility for |
560 | a renewed certification of eligibility must be based on the |
561 | status of the applicant and the law in effect at the time of the |
562 | renewal application. The department shall issue a certificate of |
563 | eligibility for sealing to a person who is the subject of a |
564 | criminal history record provided that such person: |
565 | (a) Has submitted to the department a certified copy of |
566 | the disposition of the charge to which the petition to seal |
567 | pertains. |
568 | (b) Remits a $75 processing fee to the department for |
569 | placement in the Department of Law Enforcement Operating Trust |
570 | Fund, unless such fee is waived by the executive director. |
571 | (c) Has never, before |
572 | application for a certificate of eligibility is filed, been |
573 | adjudicated guilty of a criminal offense or comparable ordinance |
574 | violation, or been adjudicated delinquent for committing any |
575 | felony or a misdemeanor specified in s. 943.051(3)(b). |
576 | (d) Has not been adjudicated guilty of or adjudicated |
577 | delinquent for committing any of the acts stemming from the |
578 | arrest or alleged criminal activity to which the petition to |
579 | seal pertains. |
580 | (e) Has never secured a prior sealing, except as provided |
581 | in subsection (6), or expunction of a criminal history record |
582 | under this section, former s. 893.14, former s. 901.33, or |
583 | former s. 943.058. |
584 | (f) Is no longer under court supervision applicable to the |
585 | disposition of the arrest or alleged criminal activity to which |
586 | the petition to seal pertains. |
587 | (3) PROCESSING OF A PETITION OR ORDER TO SEAL.- |
588 | (a) In judicial proceedings under this section, a copy of |
589 | the completed petition to seal shall be served upon the |
590 | appropriate state attorney or the statewide prosecutor and upon |
591 | the arresting agency; however, it is not necessary to make any |
592 | agency other than the state a party. The appropriate state |
593 | attorney or the statewide prosecutor and the arresting agency |
594 | may respond to the court regarding the completed petition to |
595 | seal. |
596 | (b) If relief is granted by the court, the clerk of the |
597 | court shall certify copies of the order to the appropriate state |
598 | attorney or the statewide prosecutor and to the arresting |
599 | agency. The arresting agency is responsible for forwarding the |
600 | order to any other agency to which the arresting agency |
601 | disseminated the criminal history record information to which |
602 | the order pertains. The department shall forward the order to |
603 | seal to the Federal Bureau of Investigation. The clerk of the |
604 | court shall certify a copy of the order to any other agency |
605 | which the records of the court reflect has received the criminal |
606 | history record from the court. |
607 | (c) For an order to seal entered by a court before |
608 | |
609 | state attorney or statewide prosecutor of any order to seal |
610 | which is contrary to law because the person who is the subject |
611 | of the record has previously been convicted of a crime or |
612 | comparable ordinance violation or has had a prior criminal |
613 | history record sealed, except as provided in subsection (6), or |
614 | expunged. Upon receipt of such notice, the appropriate state |
615 | attorney or statewide prosecutor shall take action, within 60 |
616 | days, to correct the record and petition the court to void the |
617 | order to seal. The department shall seal the record until such |
618 | time as the order is voided by the court. |
619 | (d) On or after July 1, 1992, the department or any other |
620 | criminal justice agency is not required to act on an order to |
621 | seal entered by a court if |
622 | the requirements of this section. Upon receipt of such an order, |
623 | the department must notify the issuing court, the appropriate |
624 | state attorney or statewide prosecutor, the petitioner or the |
625 | petitioner's attorney, and the arresting agency of the reason |
626 | for noncompliance. The appropriate state attorney or statewide |
627 | prosecutor shall take action within 60 days to correct the |
628 | record and petition the court to void the order. A |
629 | action, including contempt of court, does not |
630 | against any criminal justice agency for failure to comply with |
631 | an order to seal if |
632 | obtain the certificate of eligibility as required by this |
633 | section or if |
634 | requirements of this section. |
635 | (e) An order sealing a criminal history record pursuant to |
636 | this section does not require that such record be surrendered to |
637 | the court, and such record shall continue to be maintained by |
638 | the department and other criminal justice agencies. |
639 | (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.-A criminal |
640 | history record of a minor or an adult which is ordered sealed by |
641 | a court of competent jurisdiction pursuant to this section is |
642 | confidential and exempt from the provisions of s. 119.07(1) and |
643 | s. 24(a), Art. I of the State Constitution and is available only |
644 | to the person who is the subject of the record, to the subject's |
645 | attorney, to criminal justice agencies for their respective |
646 | criminal justice purposes, which include conducting a criminal |
647 | history background check for approval of firearms purchases or |
648 | transfers as authorized by state or federal law, to judges in |
649 | the state courts system for the purpose of assisting them in |
650 | their case-related decisionmaking responsibilities, as set forth |
651 | in s. 943.053(5), or to those entities set forth in |
652 | subparagraphs (a)1., 4., 5., 6., and 8. for their respective |
653 | licensing, access authorization, and employment purposes. |
654 | (a) The subject of a criminal history record sealed under |
655 | this section or under other provisions of law, including former |
656 | s. 893.14, former s. 901.33, and former s. 943.058, may lawfully |
657 | deny or fail to acknowledge the arrests and subsequent |
658 | dispositions covered by the sealed record, except when the |
659 | subject of the record: |
660 | 1. Is a candidate for employment with a criminal justice |
661 | agency; |
662 | 2. Is a defendant in a criminal prosecution; |
663 | 3. Concurrently or subsequently petitions for relief under |
664 | this section or s. 943.0585; |
665 | 4. Is a candidate for admission to The Florida Bar; |
666 | 5. Is seeking to be employed or licensed by or to contract |
667 | with the Department of Children and Family Services, the Agency |
668 | for Health Care Administration, the Agency for Persons with |
669 | Disabilities, or the Department of Juvenile Justice or to be |
670 | employed or used by such contractor or licensee in a sensitive |
671 | position having direct contact with children, the |
672 | developmentally disabled, the aged, or the elderly as provided |
673 | in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. |
674 | 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5), s. |
675 | 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429; |
676 | 6. Is seeking to be employed or licensed by the Department |
677 | of Education, any district school board, any university |
678 | laboratory school, any charter school, any private or parochial |
679 | school, or any local governmental entity that licenses child |
680 | care facilities; |
681 | 7. Is attempting to purchase a firearm from a licensed |
682 | importer, licensed manufacturer, or licensed dealer and is |
683 | subject to a criminal history check under state or federal law; |
684 | or |
685 | 8. Is seeking authorization from a Florida seaport |
686 | identified in s. 311.09 for employment within or access to one |
687 | or more of such seaports pursuant to s. 311.12. |
688 | (b) Subject to the exceptions in paragraph (a), a person |
689 | who has been granted a sealing under this section, former s. |
690 | 893.14, former s. 901.33, or former s. 943.058 may not be held |
691 | under any provision of law of this state to commit perjury or to |
692 | be otherwise liable for giving a false statement by reason of |
693 | such person's failure to recite or acknowledge a sealed criminal |
694 | history record, including failure to recite or acknowledge on an |
695 | employment application. |
696 | (c) Information relating to the existence of a sealed |
697 | criminal record provided in accordance with the provisions of |
698 | paragraph (a) is confidential and exempt from the provisions of |
699 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution, |
700 | except that the department shall disclose the sealed criminal |
701 | history record to the entities set forth in subparagraphs (a)1., |
702 | 4., 5., 6., and 8. for their respective licensing, access |
703 | authorization, and employment purposes. It is unlawful for any |
704 | employee of an entity set forth in subparagraph (a)1., |
705 | subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or |
706 | subparagraph (a)8. to disclose information relating to the |
707 | existence of a sealed criminal history record of a person |
708 | seeking employment, access authorization, or licensure with such |
709 | entity or contractor, except to the person to whom the criminal |
710 | history record relates or to persons having direct |
711 | responsibility for employment, access authorization, or |
712 | licensure decisions. Any person who violates the provisions of |
713 | this paragraph commits a misdemeanor of the first degree, |
714 | punishable as provided in s. 775.082 or s. 775.083. |
715 | (5) STATUTORY REFERENCES.-Any reference to any other |
716 | chapter, section, or subdivision of the Florida Statutes in this |
717 | section constitutes a general reference under the doctrine of |
718 | incorporation by reference. |
719 | (6) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING |
720 | OR EXPUNCTION.-A court may seal a person's criminal history |
721 | record after a prior criminal history record has been sealed or |
722 | expunged only if the person obtains a certificate from the |
723 | department to seal the criminal history record. The department |
724 | shall issue the certificate only if the person has not been |
725 | arrested during the 5-year period following the date of the |
726 | court order for the initial expunction or sealing of his or her |
727 | criminal history record. All other provisions and requirements |
728 | of this section apply to an application to seal a criminal |
729 | history record after a prior criminal history record has been |
730 | sealed or expunged. |
731 | Section 7. This act shall take effect July 1, 2011. |
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