HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 195 Juvenile Diversion Program Expunction
SPONSOR(S): Criminal Justice & Public Safety Subcommittee, Smith, D. and others
TIED BILLS: HB 197 IDEN./SIM. BILLS: CS/SB 342
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 16 Y, 0 N, As CS Frost Hall
2) Justice Appropriations Subcommittee 14 Y, 0 N Saag Keith
3) Judiciary Committee 20 Y, 0 N Frost Kramer
SUMMARY ANALYSIS
When a law enforcement officer has probable cause to believe that a juvenile has committed a criminal
offense, the officer may take the juvenile into custody or issue a notice to appear. Both taking a juvenile into
custody and issuing a notice to appear refers the matter to the clerk of court, where a juvenile delinquency
case is generated. The creation of that case becomes part of the juvenile’s offender record.
Diversion is a program designed to divert a juvenile from entering the juvenile justice system by placing him or
her on a less restrictive track providing more opportunities for rehabilitation and restoration. The goal of
diversion is to maximize the opportunity for success and minimize the likelihood of recidivism. Upon successful
completion of a diversion program, the juvenile's charges are dismissed. Section 943.0582, F.S., requires the
Florida Department of Law Enforcement (FDLE), upon receiving an application signed by a juvenile and
certified by the state attorney, to expunge any nonjudicial arrest record of a juvenile who successfully
completes a diversion program for a misdemeanor offense and who otherwise meets eligibility criteria.
Under s. 985.126, F.S., a juvenile whose nonjudicial arrest record is expunged may lawfully deny or fail to
acknowledge his or her participation in a diversion program for a first-time misdemeanor and the expunction of
the record, unless the inquiry is made by a criminal justice agency for the purpose of:
Determining eligibility for other diversion programs;
A criminal investigation; or
Making a prosecutorial decision under s. 985.15, F.S.
CS/HB 195 requires FDLE to expunge a juvenile’s nonjudicial arrest record following his or her successful
completion of a diversion program for any offense that is not a forcible felony or any felony involving the
manufacture, sale, purchase, transport, possession, or use of a firearm or weapon, rather than only a
misdemeanor. A juvenile seeking to have his or her nonjudicial arrest record expunged must still submit
certification from the state attorney that he or she meets the qualifications for expunction. The decision to refer
a juvenile to a diversion program remains at the discretion of either the law enforcement officer who interacts
with the juvenile at the time of the offense or the state attorney assigned to the case. A child who is excluded
from eligibility for a diversion expunction may still qualify for court-ordered expunction or sealing, if he or she is
otherwise eligible for such sealing or expunction.
Under the bill, a juvenile who successfully completes a diversion program for a qualifying offense, rather than
only a first-time misdemeanor, and who is granted an expunction, may lawfully deny or fail to acknowledge his
or her participation in a diversion program and the expunction of a nonjudicial arrest record, except when the
inquiry is made by a criminal justice agency for specified purposes.
The bill may have an indeterminate negative fiscal impact on state government expenditures due to required
computer system modifications and additional workload generated for FDLE by increasing the number of
applicants eligible for juvenile diversion expunction. However, FDLE will likely have sufficient resources to
implement provisions of the bill. See Fiscal Analysis and Economic Impact Statement.
The bill provides an effective date of July 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0195d.JDC
DATE: 2/1/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Creation and Disposition of a Juvenile Case
When a law enforcement officer has probable cause to believe that a juvenile has committed a criminal
offense in Florida, the officer may take the juvenile into custody or issue a notice to appear. 1 Both
taking a juvenile into custody and issuing a notice to appear refers the matter to the clerk of court,
where a juvenile delinquency case is generated.
A juvenile delinquency case may be resolved in any of the following ways:
The case may be dismissed by a:
o No action or no information;2
o Nolle prosequi;3 or
o Court dismissal.4
The juvenile may participate in pretrial diversion.5
The juvenile may plead guilty or no contest to the charges.6
The case may proceed to an adjudicatory hearing, at which the court may:
o Adjudicate the juvenile delinquent;
o Withhold adjudication of delinquency;7 or
o Dismiss the case.
Juvenile Offender Records
In contrast to an adult criminal history record,8 which is generally accessible to the public, a juvenile
offender record in the jurisdiction of a juvenile court is confidential and exempt from public disclosure. 9
As such, a juvenile’s offender record may only be disclosed to:
Authorized court personnel;
The Department of Juvenile Justice (DJJ) and its designees;
The Department of Corrections;
The Florida Commission on Offender Review;
Law enforcement agents;
School superintendents and their designees;
Any licensed professional or licensed community agency representative assessing or treating a
juvenile; or
Any person authorized under ch. 985, F.S., to receive such information, or upon court order. 10
1
A notice to appear is a written order issued by a law enforcement officer, in lieu of taking a juvenile into custody or detaining the
juvenile, to appear in a designated court or governmental office at a specified date and time. Fla. R. Juv. P. 8.045.
2 A “no action” is a dismissal of the pending charges before an information or indictment has been filed. Genden v. Fuller, 648 So.2d
1183, 1183 n. 1 (Fla. 1994).
3 A nolle prosequi is the dismissal of a pending information or indictment. Id.
4
The court may dismiss a case under certain circumstances, including on a defense motion to dismiss under Fla. R. Juv. P.
8.085(a)(4), upon expiration of the speedy trial period under Fla. R. Juv. P. 8.090(d), or upon granting Stand Your Ground im munity
under s. 776.032, F.S.
5 S. 985.12, F.S.
6 Fla. R. Juv. P. 8.070(b).
7 A withhold of adjudication allows a court to impose a sentence without imposing an adjudication of delinquency and the collat eral
consequences that accompany that adjudication. George E. Tragos and Peter A. Sartes, Withhold of Adjudication: What Everyone
Needs to Know, Florida Bar Journal (Feb. 2008), https://www.floridabar.org/the-florida-bar-journal/withhold-of-adjudication-what-
everyone-needs-to-know/ (last visited Jan. 29, 2022). Fla. R. Juv. P. 8.110(g).
8 “Criminal history record” means any nonjudicial record maintained by a criminal justice agenc y containing criminal history information.
S. 943.045(6), F.S.
9 S. 985.04(1)(a), F.S.
10 S. 985.04(1)(b), F.S.
STORAGE NAME: h0195d.JDC PAGE: 2
DATE: 2/1/2022
Notwithstanding the confidential and exempt status of juvenile offender records:
A juvenile’s name, photograph, address, and crime or arrest report is not considered
confidential and exempt if he or she is:
o Taken into custody by a law enforcement officer for a violation of law which, if committed
by an adult, would be a felony;
o Charged with a violation of law which, if committed by an adult, would be a felony;
o Found to have committed an offense which, if committed by an adult, would be a felony;
or
o Transferred to adult court under part X of ch. 985, F.S.;11
A law enforcement agency may release a copy of a juvenile offense report to the victim of the
offense;12
A law enforcement agency must notify the superintendent of schools that a juvenile is alleged to
have committed a delinquent act when he or she is taken into custody for an offense that would
have been a felony if committed by an adult, or a crime of violence; 13
Records maintained by DJJ, including copies of court records pertaining to a juvenile found to
have committed a delinquent act which, if committed by an adult, would be a disqualifying crime
in a level two background screening,14 may not be destroyed for 25 years after the juvenile’s
final referral to DJJ, except upon a juvenile’s death;15 and
Records in DJJ’s custody may be inspected upon order of the Secretary or his or her authorized
agent by persons with sufficient reason and under such conditions as the Secretary or his or her
authorized agent deems proper.
Records pertaining to juveniles committed to or supervised by DJJ are retained until a juvenile reaches
a certain age, depending on the type and severity of the offense.16
Juvenile Diversion Expunction
Diversion Programs
Diversion is a program designed to divert a juvenile from entering the juvenile justice system by placing
him or her on a less restrictive track that affords more opportunities for rehabilitation and restoration.17
The goal of diversion is to maximize the opportunity for success and minimize the likelihood of
recidivism.18
A juvenile may have the opportunity to participate in either a prearrest or postarrest diversion program.
A prearrest diversion program is an intervention program that holds a juvenile accountable for his or her
behavior, while avoiding a court proceeding or formal arrest record.19 A postarrest diversion program is
a similar intervention program, but diverts a juvenile from further court proceedings after an arrest.20
11 S. 985.04(2)(a)1., F.S.
12 Information gained by the victim pursuant to ch. 985, F.S., including the next of kin of a homicide victim, regarding any case handled
in juvenile court, must not be revealed to any outside party, except as is reasonably necessary in pursuit of legal remedies.
S. 985.04(3), F.S.
13
When a juvenile is formally charged by a state attorney with a felony or a delinquent act that would be a felony if committed by an
adult, the state attorney must notify the superintendent of the juvenile’s school that he or she has been charged with such f elony or
delinquent act. The information obtained by the superintendent of schools must be released within 48 hours after receipt to appropriate
school personnel, including the principal of the juvenile’s school and the director of transportation. The principal must imm ediately notify
the juvenile’s classroom teachers, assigned bus driver, and any other school personnel whose duties include directly supervising the
juvenile. S. 985.04(4)(b), F.S.
14 S. 435.04, F.S.
15 S. 985.04(6)(a), F.S.
16 See ss. 943.0515(2) and 985.04(7), F.S.
17 Florida Department of Juvenile Justice, Glossary, http://www.djj.state.fl.us/youth-families/glossary (last visited Jan. 29, 2022).
18 Center for Health & Justice at TASC, A National Survey of Criminal Justice Diversion Programs and Initia tives, pg. 6,
(December 2013),
https://www.centerforhealthandjustice.org/tascblog/Images/documents/Publications/CHJ%20Diversion%20Report_web.pdf (last visited
Jan. 29, 2022).
19 Mark A. Greenwald, Overview of Florida’s Pre-Arrest and Post-Arrest Juvenile Diversion Programs and Applicable Laws, Florida
Department of Juvenile Justice (June 7, 2018), http://www.fdle.state.fl.us/MSDHS/Meetings/June-Meeting-
Documents/Presentations/June-7-930AM-DJJ-Greenwald-Diversion-Programs.aspx (last visited Jan. 12, 2022).
20 Id.
STORAGE NAME: h0195d.JDC PAGE: 3
DATE: 2/1/2022
While prearrest diversion diverts a juvenile before an arrest record is ever created, in postarrest
diversion, an arrest record is created and maintained pending the juvenile's participation in and
completion of the diversion program. Upon successfully completing a postarrest diversion program, a
juvenile's charges are dismissed.
The decision to refer a juvenile to a diversion program is at the discretion of either the law enforcement
officer who interacts with the juvenile at the time the offense is committed or the state attorney who is
assigned the case. Examples of such programs are Community Arbitration, Juvenile Alternative
Services Program, Teen Court, Intensive Delinquency Diversion Services, Civil Citation, Boy and Girl
Scouts, Boys and Girls Clubs, mentoring programs, and alternative schools. 21
Expunction
Generally, expunction is the court-ordered physical destruction or obliteration of a criminal history
record or portion of a record by any criminal justice agency having custody of the record. 22 A juvenile
who completes one of the following diversion programs may petition for juvenile diversion expunction:23
Civil citation or a similar prearrest diversion program; 24
Prearrest or postarrest diversion program;25
Neighborhood restorative justice;26
Community arbitration;27 or
A program to which a state attorney refers the juvenile.28
The Florida Department of Law Enforcement (FDLE) is required to expunge a juvenile’s nonjudicial
arrest record after he or she successfully completes a diversion program, if the juvenile:
Submits an application for prearrest or postarrest diversion expunction;
Participated in a diversion program based on the commission of a misdemeanor;
Has never been, before filing the application, charged with or found to have committed any
other criminal offense or comparable ordinance violation; and
Submits certification from the state attorney for the county in which the arrest occurred certifying
that he or she:
o Successfully completed that county’s diversion program;
o That his or her participation in the program was based on an arrest for a misdemeanor;
and
o That he or she has not otherwise been charged by the state attorney with, or found to
have committed, any criminal offense or comparable ordinance violation.29
Juvenile diversion expunction has the same effect as court-ordered expunction of criminal history
records under s. 943.0585, F.S., except that:
FDLE must make an expunged juvenile diversion criminal record available only to criminal
justice agencies for the purpose of:
o Determining eligibility for diversion programs;
21
Florida Department of Juvenile Justice, Prob ation & Community Intervention, http://www.djj.state.fl.us/services/probation (last visited
Jan. 29, 2022).
22 Criminal history records in FDLE’s custody must be retained in all cases for purposes of evaluating subsequent requests by the same
person for sealing or expunction or for purposes of recreating the record if a court vacates an order to expunge. S. 943.045(16), F.S.
23 S. 943.0582, F.S.
24
The civil citation program offers early intervention, community counseling referrals, and other appropriate community resources to
divert juvenile misdemeanor offenders from the Juvenile Justice System. The program works with other community partners in an effort
to reduce juvenile crime and to provide services for at-risk youth. Nineteenth Judicial Circuit, Civil Citation (2019),
http://www.circuit19.org/programs-services/court-programs/juvenile/civil-citation (last visited Jan. 29, 2022). S. 985.12, F.S.
25 S. 985.125, F.S.
26 In neighborhood restorative justice programs, victims, the offender, and all others impacted by the crime discuss the impact,
obligations, and actions needed to repair harm. Florida Restorative Justi ce Association, Retrib utive Justice vs. Restorative Justice
(2014), https://www.floridarestorativejustice.com/about-rj.html (last visited Jan. 29, 2022). S. 985.155, F.S.
27 Community arbitration is a program where a juvenile who has committed a relatively minor offense can have his or her case resolved
in an informal manner, and appear before a community arbitrator instead of a judge in juvenile court. Twentieth Judicial Circ uit, Juvenile
Arb itration Program (2014), https://www.ca.cjis20.org/Programs/teenjuvenilearbitration.aspx (last visited Jan. 29, 2022). S. 985.16, F.S.
28 S. 985.15, F.S. See s. 943.0582(2)(a), F.S.
29 S. 943.0582(3), F.S.
STORAGE NAME: h0195d.JDC PAGE: 4
DATE: 2/1/2022
o A criminal investigation; or
o Making a prosecutorial decision under s. 985.15, F.S.30, 31
Loc