Bill Text: FL S0340 | 2010 | Regular Session | Engrossed
Bill Title: Sealing Criminal History Records [GPSC]
Spectrum: Moderate Partisan Bill (Democrat 5-1)
Status: (Failed) 2010-04-30 - Died in Messages [S0340 Detail]
Download: Florida-2010-S0340-Engrossed.html
SB 340 Second Engrossed 2010340e2 1 A bill to be entitled 2 An act relating to sealing criminal history records; 3 providing a short title; amending s. 943.059, F.S.; 4 authorizing a court to seal a criminal history record 5 of a person who had a prior criminal history record 6 sealed or expunged in certain circumstances; providing 7 an effective date. 8 9 Be It Enacted by the Legislature of the State of Florida: 10 11 Section 1. This act may be cited as the “Jim King Keep 12 Florida Working Act.” 13 Section 2. Section 943.059, Florida Statutes, is amended to 14 read: 15 943.059 Court-ordered sealing of criminal history records. 16 The courts of this state shall continue to have jurisdiction 17 over their own procedures, including the maintenance, sealing, 18 and correction of judicial records containing criminal history 19 information to the extent such procedures are not inconsistent 20 with the conditions, responsibilities, and duties established by 21 this section. Any court of competent jurisdiction may order a 22 criminal justice agency to seal the criminal history record of a 23 minor or an adult who complies with the requirements of this 24 section. The court shall not order a criminal justice agency to 25 seal a criminal history record until the person seeking to seal 26 a criminal history record has applied for and received a 27 certificate of eligibility for sealing pursuant to subsection 28 (2). A criminal history record that relates to a violation of s. 29 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 30 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 31 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 32 916.1075, a violation enumerated in s. 907.041, or any violation 33 specified as a predicate offense for registration as a sexual 34 predator pursuant to s. 775.21, without regard to whether that 35 offense alone is sufficient to require such registration, or for 36 registration as a sexual offender pursuant to s. 943.0435, may 37 not be sealed, without regard to whether adjudication was 38 withheld, if the defendant was found guilty of or pled guilty or 39 nolo contendere to the offense, or if the defendant, as a minor, 40 was found to have committed or pled guilty or nolo contendere to 41 committing the offense as a delinquent act. The court may only 42 order sealing of a criminal history record pertaining to one 43 arrest or one incident of alleged criminal activity, except as 44 provided in this section. The court may, at its sole discretion, 45 order the sealing of a criminal history record pertaining to 46 more than one arrest if the additional arrests directly relate 47 to the original arrest. If the court intends to order the 48 sealing of records pertaining to such additional arrests, such 49 intent must be specified in the order. A criminal justice agency 50 may not seal any record pertaining to such additional arrests if 51 the order to seal does not articulate the intention of the court 52 to seal records pertaining to more than one arrest. This section 53 does not prevent the court from ordering the sealing of only a 54 portion of a criminal history record pertaining to one arrest or 55 one incident of alleged criminal activity. Notwithstanding any 56 law to the contrary, a criminal justice agency may comply with 57 laws, court orders, and official requests of other jurisdictions 58 relating to sealing, correction, or confidential handling of 59 criminal history records or information derived therefrom. This 60 section does not confer any right to the sealing of any criminal 61 history record, and any request for sealing a criminal history 62 record may be denied at the sole discretion of the court. 63 (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.—Each 64 petition to a court to seal a criminal history record is 65 complete only when accompanied by: 66 (a) A valid certificate of eligibility for sealing issued 67 by the department pursuant to subsection (2). 68 (b) The petitioner’s sworn statement attesting that the 69 petitioner: 70 1. Has never, prior to the date on which the petition is 71 filed, been adjudicated guilty of a criminal offense or 72 comparable ordinance violation, or been adjudicated delinquent 73 for committing any felony or a misdemeanor specified in s. 74 943.051(3)(b). 75 2. Has not been adjudicated guilty of or adjudicated 76 delinquent for committing any of the acts stemming from the 77 arrest or alleged criminal activity to which the petition to 78 seal pertains. 79 3. Has never secured a prior sealing or expunction, except 80 as provided in subsection (5), of a criminal history record 81 under this section, former s. 893.14, former s. 901.33, former 82 s. 943.058, or from any jurisdiction outside the state. 83 4. Is eligible for such a sealing to the best of his or her 84 knowledge or belief and does not have any other petition to seal 85 or any petition to expunge pending before any court. 86 87 Any person who knowingly provides false information on such 88 sworn statement to the court commits a felony of the third 89 degree, punishable as provided in s. 775.082, s. 775.083, or s. 90 775.084. 91 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to 92 petitioning the court to seal a criminal history record, a 93 person seeking to seal a criminal history record shall apply to 94 the department for a certificate of eligibility for sealing. The 95 department shall, by rule adopted pursuant to chapter 120, 96 establish procedures pertaining to the application for and 97 issuance of certificates of eligibility for sealing. A 98 certificate of eligibility for sealing is valid for 12 months 99 after the date stamped on the certificate when issued by the 100 department. After that time, the petitioner must reapply to the 101 department for a new certificate of eligibility. Eligibility for 102 a renewed certification of eligibility must be based on the 103 status of the applicant and the law in effect at the time of the 104 renewal application. The department shall issue a certificate of 105 eligibility for sealing to a person who is the subject of a 106 criminal history record provided that such person: 107 (a) Has submitted to the department a certified copy of the 108 disposition of the charge to which the petition to seal 109 pertains. 110 (b) Remits a $75 processing fee to the department for 111 placement in the Department of Law Enforcement Operating Trust 112 Fund, unless such fee is waived by the executive director. 113 (c) Has never, prior to the date on which the application 114 for a certificate of eligibility is filed, been adjudicated 115 guilty of a criminal offense or comparable ordinance violation, 116 or been adjudicated delinquent for committing any felony or a 117 misdemeanor specified in s. 943.051(3)(b). 118 (d) Has not been adjudicated guilty of or adjudicated 119 delinquent for committing any of the acts stemming from the 120 arrest or alleged criminal activity to which the petition to 121 seal pertains. 122 (e) Has never secured a prior sealing or expunction, except 123 as provided in subsection (5), of a criminal history record 124 under this section, former s. 893.14, former s. 901.33, or 125 former s. 943.058. 126 (f) Is no longer under court supervision applicable to the 127 disposition of the arrest or alleged criminal activity to which 128 the petition to seal pertains. 129 (3) PROCESSING OF A PETITION OR ORDER TO SEAL.— 130 (a) In judicial proceedings under this section, a copy of 131 the completed petition to seal shall be served upon the 132 appropriate state attorney or the statewide prosecutor and upon 133 the arresting agency; however, it is not necessary to make any 134 agency other than the state a party. The appropriate state 135 attorney or the statewide prosecutor and the arresting agency 136 may respond to the court regarding the completed petition to 137 seal. 138 (b) If relief is granted by the court, the clerk of the 139 court shall certify copies of the order to the appropriate state 140 attorney or the statewide prosecutor and to the arresting 141 agency. The arresting agency is responsible for forwarding the 142 order to any other agency to which the arresting agency 143 disseminated the criminal history record information to which 144 the order pertains. The department shall forward the order to 145 seal to the Federal Bureau of Investigation. The clerk of the 146 court shall certify a copy of the order to any other agency 147 which the records of the court reflect has received the criminal 148 history record from the court. 149 (c) For an order to seal entered by a court prior to July 150 1, 1992, the department shall notify the appropriate state 151 attorney or statewide prosecutor of any order to seal which is 152 contrary to law because the person who is the subject of the 153 record has previously been convicted of a crime or comparable 154 ordinance violation or has had a prior criminal history record 155 sealed or expunged, except as provided in subsection (5). Upon 156 receipt of such notice, the appropriate state attorney or 157 statewide prosecutor shall take action, within 60 days, to 158 correct the record and petition the court to void the order to 159 seal. The department shall seal the record until such time as 160 the order is voided by the court. 161 (d) On or after July 1, 1992, the department or any other 162 criminal justice agency is not required to act on an order to 163 seal entered by a court when such order does not comply with the 164 requirements of this section. Upon receipt of such an order, the 165 department must notify the issuing court, the appropriate state 166 attorney or statewide prosecutor, the petitioner or the 167 petitioner’s attorney, and the arresting agency of the reason 168 for noncompliance. The appropriate state attorney or statewide 169 prosecutor shall take action within 60 days to correct the 170 record and petition the court to void the order. No cause of 171 action, including contempt of court, shall arise against any 172 criminal justice agency for failure to comply with an order to 173 seal when the petitioner for such order failed to obtain the 174 certificate of eligibility as required by this section or when 175 such order does not comply with the requirements of this 176 section. 177 (e) An order sealing a criminal history record pursuant to 178 this section does not require that such record be surrendered to 179 the court, and such record shall continue to be maintained by 180 the department and other criminal justice agencies. 181 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 182 history record of a minor or an adult which is ordered sealed by 183 a court of competent jurisdiction pursuant to this section is 184 confidential and exempt from the provisions of s. 119.07(1) and 185 s. 24(a), Art. I of the State Constitution and is available only 186 to the person who is the subject of the record, to the subject’s 187 attorney, to criminal justice agencies for their respective 188 criminal justice purposes, which include conducting a criminal 189 history background check for approval of firearms purchases or 190 transfers as authorized by state or federal law, to judges in 191 the state courts system for the purpose of assisting them in 192 their case-related decisionmaking responsibilities, as set forth 193 in s. 943.053(5), or to those entities set forth in 194 subparagraphs (a)1., 4., 5., 6., and 8. for their respective 195 licensing, access authorization, and employment purposes. 196 (a) The subject of a criminal history record sealed under 197 this section or under other provisions of law, including former 198 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully 199 deny or fail to acknowledge the arrests covered by the sealed 200 record, except when the subject of the record: 201 1. Is a candidate for employment with a criminal justice 202 agency; 203 2. Is a defendant in a criminal prosecution; 204 3. Concurrently or subsequently petitions for relief under 205 this section or s. 943.0585; 206 4. Is a candidate for admission to The Florida Bar; 207 5. Is seeking to be employed or licensed by or to contract 208 with the Department of Children and Family Services, the Agency 209 for Health Care Administration, the Agency for Persons with 210 Disabilities, or the Department of Juvenile Justice or to be 211 employed or used by such contractor or licensee in a sensitive 212 position having direct contact with children, the 213 developmentally disabled, the aged, or the elderly as provided 214 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 215 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 216 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429; 217 6. Is seeking to be employed or licensed by the Department 218 of Education, any district school board, any university 219 laboratory school, any charter school, any private or parochial 220 school, or any local governmental entity that licenses child 221 care facilities; 222 7. Is attempting to purchase a firearm from a licensed 223 importer, licensed manufacturer, or licensed dealer and is 224 subject to a criminal history check under state or federal law; 225 or 226 8. Is seeking authorization from a Florida seaport 227 identified in s. 311.09 for employment within or access to one 228 or more of such seaports pursuant to s. 311.12. 229 (b) Subject to the exceptions in paragraph (a), a person 230 who has been granted a sealing under this section, former s. 231 893.14, former s. 901.33, or former s. 943.058 may not be held 232 under any provision of law of this state to commit perjury or to 233 be otherwise liable for giving a false statement by reason of 234 such person’s failure to recite or acknowledge a sealed criminal 235 history record. 236 (c) Information relating to the existence of a sealed 237 criminal record provided in accordance with the provisions of 238 paragraph (a) is confidential and exempt from the provisions of 239 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 240 except that the department shall disclose the sealed criminal 241 history record to the entities set forth in subparagraphs (a)1., 242 4., 5., 6., and 8. for their respective licensing, access 243 authorization, and employment purposes. It is unlawful for any 244 employee of an entity set forth in subparagraph (a)1., 245 subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or 246 subparagraph (a)8. to disclose information relating to the 247 existence of a sealed criminal history record of a person 248 seeking employment, access authorization, or licensure with such 249 entity or contractor, except to the person to whom the criminal 250 history record relates or to persons having direct 251 responsibility for employment, access authorization, or 252 licensure decisions. Any person who violates the provisions of 253 this paragraph commits a misdemeanor of the first degree, 254 punishable as provided in s. 775.082 or s. 775.083. 255 (5) SEALING OF CRIMINAL HISTORY RECORD AFTER PRIOR SEALING 256 OR EXPUNCTION.— 257 (a) A court may seal a person’s criminal history record 258 after a prior criminal history record has been sealed or 259 expunged only if the person obtains a certificate from the 260 department to seal the criminal history record. The department 261 shall issue the certificate for a second sealing only if: 262 1. The person has had only one prior expunction or sealing 263 of his or her criminal history record under s. 943.0585 or this 264 section or one prior expunction following the sealing of the 265 same arrest or alleged criminal activity that was expunged; 266 2. The person has not been arrested in this state during 267 the 5-year period prior to the date on which the application for 268 the certificate is filed; and 269 3. The person has not previously sealed or expunged a 270 criminal history record that involved the same offense to which 271 the petition to seal pertains. 272 (b) All other provisions and requirements of this section 273 apply to an application to seal a second criminal history 274 record. 275 (6)(5)STATUTORY REFERENCES.—Any reference to any other 276 chapter, section, or subdivision of the Florida Statutes in this 277 section constitutes a general reference under the doctrine of 278 incorporation by reference. 279 Section 3. This act shall take effect July 1, 2010.
