Bill Text: FL S1214 | 2010 | Regular Session | Introduced
Bill Title: Criminal History Records/Expunction [SPSC]
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Criminal Justice [S1214 Detail]
Download: Florida-2010-S1214-Introduced.html
Florida Senate - 2010 SB 1214 By Senator Smith 29-01185-10 20101214__ 1 A bill to be entitled 2 An act relating to expunging criminal history records; 3 creating s. 943.0595, F.S.; providing for the 4 automatic expunction of criminal history records in 5 specified circumstances; providing procedures to 6 expunge a criminal history record; providing for the 7 effect of expunction; providing that expunction 8 granted under this section does not prevent a person 9 who receives such relief from petitioning for the 10 expunction or sealing of a criminal history record 11 under other provisions of law; providing for treatment 12 of certain statutory cross-references; amending ss. 13 943.0582, 943.0585, 943.059, 948.08, 948.16, 961.06, 14 and 985.345, F.S.; conforming provisions to changes 15 made by the act; providing an effective date. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 19 Section 1. Section 943.0595, Florida Statutes, is created 20 to read: 21 943.0595 Automatic qualification for expunction of criminal 22 history record if no finding of guilt.— 23 (1) QUALIFICATION.— 24 (a) Notwithstanding any law dealing generally with the 25 preservation and destruction of public records, a criminal 26 history record relating to a person who has not been found 27 guilty of, or not pled guilty or nolo contendere to, an offense 28 automatically qualifies for expunction. The record must be 29 expunged if: 30 1. An indictment, information, or other charging document 31 was not filed or issued in the case; 32 2. An indictment, information, or other charging document 33 was filed or issued in the case and was dismissed or nolle 34 prosequi by the state attorney or statewide prosecutor or was 35 dismissed by a court of competent jurisdiction; or 36 3. The person was found not guilty or acquitted by a judge 37 or jury. 38 (b) If the person was adjudicated guilty of or adjudicated 39 delinquent for committing any of the acts stemming from the 40 arrest or alleged criminal activity or delinquent act, the 41 record does not qualify for automatic expunction. 42 (2) PETITION.—Each petition to a court to expunge a 43 criminal history record is complete only when accompanied by a 44 certified copy of the disposition of the offenses sought to be 45 sealed. 46 (3) PROCESSING OF PETITION.— 47 (a) A certificate of eligibility for expunction from the 48 department may not be required under this section. 49 (b) A court of competent jurisdiction may order a criminal 50 justice agency to expunge the criminal history record of a minor 51 or an adult whose record qualifies for automatic expunction 52 under this section. 53 (c) In a judicial proceeding under this section, a copy of 54 the completed petition to expunge shall be served upon the 55 appropriate state attorney or the statewide prosecutor and upon 56 the arresting agency; however, it is not necessary to make any 57 agency other than the state a party. The appropriate state 58 attorney or the statewide prosecutor and the arresting agency 59 may respond to the court regarding the completed petition to 60 expunge. 61 (d) Notwithstanding ss. 943.0585 and 943.059 and any other 62 law, the court may order expunction of a criminal history record 63 pertaining to more than one arrest or one incident of alleged 64 criminal activity if the person has not been adjudicated guilty 65 of or adjudicated delinquent for committing any of the acts 66 stemming from the arrest or alleged criminal activity or 67 delinquent act to which the petition to expunge pertains. 68 (e) If relief is granted by the court, the clerk of the 69 court shall certify copies of the order to the appropriate state 70 attorney or the statewide prosecutor, to the county, and to the 71 arresting agency. The arresting agency is responsible for 72 forwarding the order to any other agency to which the arresting 73 agency disseminated the criminal history record information to 74 which the order pertains. The department shall forward the order 75 to expunge to the Federal Bureau of Investigation. The clerk of 76 the court shall certify a copy of the order to any other agency 77 that court records indicate has received the criminal history 78 record from the court. The county is responsible for forwarding 79 the order to any agency, organization, or company to which the 80 county disseminated the criminal history information to which 81 the order pertains. 82 (f) The department or any other criminal justice agency is 83 not required to act on an order to expunge entered by a court 84 when the order does not comply with the requirements of this 85 section. Upon receipt of such an order, the department must 86 notify the issuing court, the appropriate state attorney or the 87 statewide prosecutor, the petitioner or the petitioner’s 88 attorney, and the arresting agency within 5 business days after 89 determining that the department or the agency cannot comply with 90 the court order. The appropriate state attorney or the statewide 91 prosecutor shall take action within 60 days to correct the 92 record and petition the court to void the order. A cause of 93 action, including contempt of court, may not arise against any 94 criminal justice agency for failing to comply with an order to 95 expunge when the order does not comply with the requirements of 96 this section. 97 (g) An order expunging a criminal history record pursuant 98 to this section does not require that the record be surrendered 99 to the court and the record shall continue to be maintained by 100 the department and other criminal justice agencies. 101 (4) SECTION NOT EXCLUSIVE.—Expunction granted under this 102 section does not prevent the person who receives such relief 103 from petitioning for the expunction or sealing of a criminal 104 history record as provided for in ss. 943.0585 and 943.059 if 105 the person is otherwise eligible under those sections. 106 (5) STATUTORY REFERENCES.—Any reference to any other 107 chapter, section, or subdivision of the Florida Statutes in this 108 section constitutes a general reference under the doctrine of 109 incorporation by reference. 110 Section 2. Subsection (6) of section 943.0582, Florida 111 Statutes, is amended to read: 112 943.0582 Prearrest, postarrest, or teen court diversion 113 program expunction.— 114 (6) Expunction or sealing granted under this section does 115 not prevent the minor who receives such relief from petitioning 116 for the expunction or sealing of a later criminal history record 117 as provided for in ss. 943.0585,and943.059, and 943.0595 if 118 the minor is otherwise eligible under those sections. 119 Section 3. Paragraph (a) of subsection (4) of section 120 943.0585, Florida Statutes, is amended to read: 121 943.0585 Court-ordered expunction of criminal history 122 records.—The courts of this state have jurisdiction over their 123 own procedures, including the maintenance, expunction, and 124 correction of judicial records containing criminal history 125 information to the extent such procedures are not inconsistent 126 with the conditions, responsibilities, and duties established by 127 this section. Any court of competent jurisdiction may order a 128 criminal justice agency to expunge the criminal history record 129 of a minor or an adult who complies with the requirements of 130 this section. The court shall not order a criminal justice 131 agency to expunge a criminal history record until the person 132 seeking to expunge a criminal history record has applied for and 133 received a certificate of eligibility for expunction pursuant to 134 subsection (2). A criminal history record that relates to a 135 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 136 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 137 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 138 893.135, s. 916.1075, a violation enumerated in s. 907.041, or 139 any violation specified as a predicate offense for registration 140 as a sexual predator pursuant to s. 775.21, without regard to 141 whether that offense alone is sufficient to require such 142 registration, or for registration as a sexual offender pursuant 143 to s. 943.0435, may not be expunged, without regard to whether 144 adjudication was withheld, if the defendant was found guilty of 145 or pled guilty or nolo contendere to the offense, or if the 146 defendant, as a minor, was found to have committed, or pled 147 guilty or nolo contendere to committing, the offense as a 148 delinquent act. The court may only order expunction of a 149 criminal history record pertaining to one arrest or one incident 150 of alleged criminal activity, except as provided in this 151 section. The court may, at its sole discretion, order the 152 expunction of a criminal history record pertaining to more than 153 one arrest if the additional arrests directly relate to the 154 original arrest. If the court intends to order the expunction of 155 records pertaining to such additional arrests, such intent must 156 be specified in the order. A criminal justice agency may not 157 expunge any record pertaining to such additional arrests if the 158 order to expunge does not articulate the intention of the court 159 to expunge a record pertaining to more than one arrest. This 160 section does not prevent the court from ordering the expunction 161 of only a portion of a criminal history record pertaining to one 162 arrest or one incident of alleged criminal activity. 163 Notwithstanding any law to the contrary, a criminal justice 164 agency may comply with laws, court orders, and official requests 165 of other jurisdictions relating to expunction, correction, or 166 confidential handling of criminal history records or information 167 derived therefrom. This section does not confer any right to the 168 expunction of any criminal history record, and any request for 169 expunction of a criminal history record may be denied at the 170 sole discretion of the court. 171 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any 172 criminal history record of a minor or an adult which is ordered 173 expunged by a court of competent jurisdiction pursuant to this 174 section must be physically destroyed or obliterated by any 175 criminal justice agency having custody of such record; except 176 that any criminal history record in the custody of the 177 department must be retained in all cases. A criminal history 178 record ordered expunged that is retained by the department is 179 confidential and exempt from the provisions of s. 119.07(1) and 180 s. 24(a), Art. I of the State Constitution and not available to 181 any person or entity except upon order of a court of competent 182 jurisdiction. A criminal justice agency may retain a notation 183 indicating compliance with an order to expunge. 184 (a) The person who is the subject of a criminal history 185 record that is expunged under this section or under other 186 provisions of law, including former s. 893.14, former s. 901.33, 187 and former s. 943.058, may lawfully deny or fail to acknowledge 188 the arrests covered by the expunged record, except when the 189 subject of the record: 190 1. Is a candidate for employment with a criminal justice 191 agency; 192 2. Is a defendant in a criminal prosecution; 193 3. Concurrently or subsequently petitions for relief under 194 this section,ors. 943.059, or s. 943.0595; 195 4. Is a candidate for admission to The Florida Bar; 196 5. Is seeking to be employed or licensed by or to contract 197 with the Department of Children and Family Services, the Agency 198 for Health Care Administration, the Agency for Persons with 199 Disabilities, or the Department of Juvenile Justice or to be 200 employed or used by such contractor or licensee in a sensitive 201 position having direct contact with children, the 202 developmentally disabled, the aged, or the elderly as provided 203 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 204 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), 205 chapter 916, s. 985.644, chapter 400, or chapter 429; 206 6. Is seeking to be employed or licensed by the Department 207 of Education, any district school board, any university 208 laboratory school, any charter school, any private or parochial 209 school, or any local governmental entity that licenses child 210 care facilities; or 211 7. Is seeking authorization from a seaport listed in s. 212 311.09 for employment within or access to one or more of such 213 seaports pursuant to s. 311.12. 214 Section 4. Paragraph (a) of subsection (4) of section 215 943.059, Florida Statutes, is amended to read: 216 943.059 Court-ordered sealing of criminal history records. 217 The courts of this state shall continue to have jurisdiction 218 over their own procedures, including the maintenance, sealing, 219 and correction of judicial records containing criminal history 220 information to the extent such procedures are not inconsistent 221 with the conditions, responsibilities, and duties established by 222 this section. Any court of competent jurisdiction may order a 223 criminal justice agency to seal the criminal history record of a 224 minor or an adult who complies with the requirements of this 225 section. The court shall not order a criminal justice agency to 226 seal a criminal history record until the person seeking to seal 227 a criminal history record has applied for and received a 228 certificate of eligibility for sealing pursuant to subsection 229 (2). A criminal history record that relates to a violation of s. 230 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 231 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 232 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 233 916.1075, a violation enumerated in s. 907.041, or any violation 234 specified as a predicate offense for registration as a sexual 235 predator pursuant to s. 775.21, without regard to whether that 236 offense alone is sufficient to require such registration, or for 237 registration as a sexual offender pursuant to s. 943.0435, may 238 not be sealed, without regard to whether adjudication was 239 withheld, if the defendant was found guilty of or pled guilty or 240 nolo contendere to the offense, or if the defendant, as a minor, 241 was found to have committed or pled guilty or nolo contendere to 242 committing the offense as a delinquent act. The court may only 243 order sealing of a criminal history record pertaining to one 244 arrest or one incident of alleged criminal activity, except as 245 provided in this section. The court may, at its sole discretion, 246 order the sealing of a criminal history record pertaining to 247 more than one arrest if the additional arrests directly relate 248 to the original arrest. If the court intends to order the 249 sealing of records pertaining to such additional arrests, such 250 intent must be specified in the order. A criminal justice agency 251 may not seal any record pertaining to such additional arrests if 252 the order to seal does not articulate the intention of the court 253 to seal records pertaining to more than one arrest. This section 254 does not prevent the court from ordering the sealing of only a 255 portion of a criminal history record pertaining to one arrest or 256 one incident of alleged criminal activity. Notwithstanding any 257 law to the contrary, a criminal justice agency may comply with 258 laws, court orders, and official requests of other jurisdictions 259 relating to sealing, correction, or confidential handling of 260 criminal history records or information derived therefrom. This 261 section does not confer any right to the sealing of any criminal 262 history record, and any request for sealing a criminal history 263 record may be denied at the sole discretion of the court. 264 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal 265 history record of a minor or an adult which is ordered sealed by 266 a court of competent jurisdiction pursuant to this section is 267 confidential and exempt from the provisions of s. 119.07(1) and 268 s. 24(a), Art. I of the State Constitution and is available only 269 to the person who is the subject of the record, to the subject’s 270 attorney, to criminal justice agencies for their respective 271 criminal justice purposes, which include conducting a criminal 272 history background check for approval of firearms purchases or 273 transfers as authorized by state or federal law, to judges in 274 the state courts system for the purpose of assisting them in 275 their case-related decisionmaking responsibilities, as set forth 276 in s. 943.053(5), or to those entities set forth in 277 subparagraphs (a)1., 4., 5., 6., and 8. for their respective 278 licensing, access authorization, and employment purposes. 279 (a) The subject of a criminal history record sealed under 280 this section or under other provisions of law, including former 281 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully 282 deny or fail to acknowledge the arrests covered by the sealed 283 record, except when the subject of the record: 284 1. Is a candidate for employment with a criminal justice 285 agency; 286 2. Is a defendant in a criminal prosecution; 287 3. Concurrently or subsequently petitions for relief under 288 this section,ors. 943.0585, or s. 943.0595; 289 4. Is a candidate for admission to The Florida Bar; 290 5. Is seeking to be employed or licensed by or to contract 291 with the Department of Children and Family Services, the Agency 292 for Health Care Administration, the Agency for Persons with 293 Disabilities, or the Department of Juvenile Justice or to be 294 employed or used by such contractor or licensee in a sensitive 295 position having direct contact with children, the 296 developmentally disabled, the aged, or the elderly as provided 297 in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 298 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 299 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429; 300 6. Is seeking to be employed or licensed by the Department 301 of Education, any district school board, any university 302 laboratory school, any charter school, any private or parochial 303 school, or any local governmental entity that licenses child 304 care facilities; 305 7. Is attempting to purchase a firearm from a licensed 306 importer, licensed manufacturer, or licensed dealer and is 307 subject to a criminal history check under state or federal law; 308 or 309 8. Is seeking authorization from a Florida seaport 310 identified in s. 311.09 for employment within or access to one 311 or more of such seaports pursuant to s. 311.12. 312 Section 5. Paragraph (b) of subsection (6) of section 313 948.08, Florida Statutes, is amended to read: 314 948.08 Pretrial intervention program.— 315 (6) 316 (b) While enrolled in a pretrial intervention program 317 authorized by this subsection, the participant is subject to a 318 coordinated strategy developed by a drug court team under s. 319 397.334(4). The coordinated strategy may include a protocol of 320 sanctions that may be imposed upon the participant for 321 noncompliance with program rules. The protocol of sanctions may 322 include, but is not limited to, placement in a substance abuse 323 treatment program offered by a licensed service provider as 324 defined in s. 397.311 or in a jail-based treatment program or 325 serving a period of incarceration within the time limits 326 established for contempt of court. The coordinated strategy must 327 be provided in writing to the participant before the participant 328 agrees to enter into a pretrial treatment-based drug court 329 program or other pretrial intervention program. Any person whose 330 charges are dismissed after successful completion of the 331 treatment-based drug court program, if otherwise eligible, may 332 have his or her arrest record and plea of nolo contendere to the 333 dismissed charges expunged under s. 943.0585 or s. 943.0595. 334 Section 6. Paragraph (b) of subsection (1) of section 335 948.16, Florida Statutes, is amended to read: 336 948.16 Misdemeanor pretrial substance abuse education and 337 treatment intervention program.— 338 (1) 339 (b) While enrolled in a pretrial intervention program 340 authorized by this section, the participant is subject to a 341 coordinated strategy developed by a drug court team under s. 342 397.334(4). The coordinated strategy may include a protocol of 343 sanctions that may be imposed upon the participant for 344 noncompliance with program rules. The protocol of sanctions may 345 include, but is not limited to, placement in a substance abuse 346 treatment program offered by a licensed service provider as 347 defined in s. 397.311 or in a jail-based treatment program or 348 serving a period of incarceration within the time limits 349 established for contempt of court. The coordinated strategy must 350 be provided in writing to the participant before the participant 351 agrees to enter into a pretrial treatment-based drug court 352 program or other pretrial intervention program. Any person whose 353 charges are dismissed after successful completion of the 354 treatment-based drug court program, if otherwise eligible, may 355 have his or her arrest record and plea of nolo contendere to the 356 dismissed charges expunged under s. 943.0585 or s. 943.0595. 357 Section 7. Subsection (1) of section 961.06, Florida 358 Statutes, is amended to read: 359 961.06 Compensation for wrongful incarceration.— 360 (1) Except as otherwise provided in this act and subject to 361 the limitations and procedures prescribed in this section, a 362 person who is found to be entitled to compensation under the 363 provisions of this act is entitled to: 364 (a) Monetary compensation for wrongful incarceration, which 365 shall be calculated at a rate of $50,000 for each year of 366 wrongful incarceration, prorated as necessary to account for a 367 portion of a year. For persons found to be wrongfully 368 incarcerated after December 31, 2008, the Chief Financial 369 Officer may adjust the annual rate of compensation for inflation 370 using the change in the December-to-December “Consumer Price 371 Index for All Urban Consumers” of the Bureau of Labor Statistics 372 of the Department of Labor; 373 (b) A waiver of tuition and fees for up to 120 hours of 374 instruction at any career center established under s. 1001.44, 375 any community college as defined in s. 1000.21(3), or any state 376 university as defined in s. 1000.21(6), if the wrongfully 377 incarcerated person meets and maintains the regular admission 378 requirements of such career center, community college, or state 379 university; remains registered at such educational institution; 380 and makes satisfactory academic progress as defined by the 381 educational institution in which the claimant is enrolled; 382 (c) The amount of any fine, penalty, or court costs imposed 383 and paid by the wrongfully incarcerated person; 384 (d) The amount of any reasonable attorney’s fees and 385 expenses incurred and paid by the wrongfully incarcerated person 386 in connection with all criminal proceedings and appeals 387 regarding the wrongful conviction, to be calculated by the 388 department based upon the supporting documentation submitted as 389 specified in s. 961.05; and 390 (e) Notwithstanding any provision to the contrary in s. 391 943.0585 or s. 943.0595, immediate administrative expunction of 392 the person’s criminal record resulting from his or her wrongful 393 arrest, wrongful conviction, and wrongful incarceration. The 394 Department of Legal Affairs and the Department of Law 395 Enforcement shall, upon a determination that a claimant is 396 entitled to compensation, immediately take all action necessary 397 to administratively expunge the claimant’s criminal record 398 arising from his or her wrongful arrest, wrongful conviction, 399 and wrongful incarceration. All fees for this process shall be 400 waived. 401 402 The total compensation awarded under paragraphs (a), (c), and 403 (d) may not exceed $2 million. No further award for attorney’s 404 fees, lobbying fees, costs, or other similar expenses shall be 405 made by the state. 406 Section 8. Subsection (2) of section 985.345, Florida 407 Statutes, is amended to read: 408 985.345 Delinquency pretrial intervention program.— 409 (2) While enrolled in a delinquency pretrial intervention 410 program authorized by this section, a child is subject to a 411 coordinated strategy developed by a drug court team under s. 412 397.334(4). The coordinated strategy may include a protocol of 413 sanctions that may be imposed upon the child for noncompliance 414 with program rules. The protocol of sanctions may include, but 415 is not limited to, placement in a substance abuse treatment 416 program offered by a licensed service provider as defined in s. 417 397.311 or serving a period of secure detention under this 418 chapter. The coordinated strategy must be provided in writing to 419 the child before the child agrees to enter the pretrial 420 treatment-based drug court program or other pretrial 421 intervention program. Any child whose charges are dismissed 422 after successful completion of the treatment-based drug court 423 program, if otherwise eligible, may have his or her arrest 424 record and plea of nolo contendere to the dismissed charges 425 expunged under s. 943.0585 or s. 943.0595. 426 Section 9. This act shall take effect July 1, 2010.
