Bill Summary – FastDemocracy

The Florida Senate
                  BILL ANALYSIS AND FISCAL IMPACT STATEMENT
              (This document is based on the provisions contained in the legislation as of the latest date listed below.)
                       Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL:           SB 54
INTRODUCER:     Senator Rodriguez
SUBJECT:        Expunction of Criminal History Records
DATE:           December 4, 2023                REVISED:
         ANALYST                      STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Parker                           Stokes                                 CJ             Favorable
2.                                                                         FP
  I.    Summary:
        SB 54 amends s. 943.0585, F.S., to permit a person who has had one prior expunction granted
        for an offense that was committed when he or she was a minor to have another eligible record
        expunged. If the prior expunction was for an offense in which the minor was charged as an adult,
        the person is not eligible for a subsequent expunction. This bill also provides that the record is
        exempt from the 10 year sealing requirement.
        Additionally, this bill specifies that a person is not eligible for expunction if the indictment,
        information, or other charging document in the case giving rise to the criminal history record was
        dismissed pursuant to s. 916.145, F.S., or s. 985.19, F.S., which provides statutory guidelines for
        the dismissal of charges when a defendant is adjudicated incompetent to proceed due to mental
        illness.
        This bill may generate additional workload and IT costs for the Florida Department of Law
        Enforcement (FDLE), which may be offset by revenues from processing fees. See Section V.
        Fiscal Impact Statement.
        This bill is effective July 1, 2024.
 II.    Present Situation:
        There are multiple types of relief that may be sought in order to seal or expunge a criminal
        history record. The public will not have access to a criminal history record that has been sealed
        or expunged. Certain government or related entities have access to records even after they are
        sealed. Most of the entities who have access to sealed records also have access to see whether a
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         person has had an expunction. However, those entities do not have access to the expunged
         criminal history record without a court order.1
         Sealing and Expunction of Criminal History Records
         A criminal history record includes any non-judicial record maintained by a criminal justice
         agency2 that contains criminal history information.3 Criminal history information is information
         collected by criminal justice agencies and consists of identifiable descriptions of individuals and
         notations of arrests, detentions, indictments, informations, other formal criminal charges, and
         criminal dispositions.4
         Expunction of a Criminal History Record
         A person may have his or her criminal history record expunged under certain circumstances.5
         When a record is expunged, the criminal justice agencies possessing such record must physically
         destroy or obliterate it. The FDLE maintains a copy of the record to evaluate subsequent requests
         for sealing or expunction, and to recreate the record in the event a court vacates the order to
         expunge.6 The criminal history record retained by the FDLE is confidential and exempt.7 Once
         the record is expunged, a person may lawfully deny or fail to acknowledge the arrests covered by
         the expunged record, subject to exceptions.8
         Certificate of Eligibility
         Before petitioning a court to expunge a criminal history record, a person must apply to the FDLE
         for a certificate of eligibility for expunction. The FDLE must issue a certificate of eligibility for
         expunction to a person who is the subject of a criminal history record if that person:
         • Is eligible for expunction, as described above;
         • Has submitted to the FDLE a written certified statement from the appropriate state attorney
             or statewide prosecutor which confirms the criminal history record complies with specified
             criteria;9
         • Has submitted to the FDLE a certified copy of the disposition of the charge to which the
             petition pertains; and
1
  Florida Department of Law Enforcement Frequently Asked Questions, Florida Department of Law Enforcement, available
at http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Frequently-Asked-Questions#Sealed_vs_Expunged (last visited
November 16, 2023).
2
  Section 943.045(11), F.S., provides that criminal justice agencies include a court, the Florida Department of Law
Enforcement (FDLE), the Department of Juvenile Justice, components of the Department of Children and Families, other
governmental agencies that administrate criminal justice, and the investigations component of the Department of Financial
Services.
3
  Section 943.045(6), F.S.
4
  Section 943.045(5), F.S.
5
  Sections 943.0581, 943.0582, 943.0583, and 943.0585, F.S.
6
  Section 943.045(16), F.S
7
  Section 943.0585(6)(a), F.S.
8
  Section 943.0585(6), F.S.
9
  Section 943.0585(2)(a)2., F.S. Specified criteria include: An indictment, information, or other charging document was not
filed or issued in the case giving rise to the criminal history record; An indictment, information, or other charging document
was filed or issued in the case giving rise to the criminal history record, was dismissed or nolle prosequi by the state attorney
or statewide prosecutor, or was dismissed by a court or a judgment of acquittal was rendered, or a verdict of not guilty was
rendered; The person has never been adjudicated guilty or delinquent for committing any felony or specified misdemeanors.
BILL:   SB 54                                                                                                           Page 3
         •   Pays a $75 processing fee to the FDLE.10
         A certificate of eligibility for expunction is valid for 12 months after the date stamped on the
         certificate when issued by the FDLE.11
         Court Ordered Expunction
         A court, in its discretion, may order the expunction of a person’s criminal history record if the
         FDLE issues the person a certificate of eligibility for expunction.12 The FDLE must issue a
         certificate of eligibility for court-ordered expunction to a person meeting all criteria.13 Generally,
         a person is eligible for expunction if:
         • An indictment, information, or other charging document was not filed or issued in the case
             giving rise to the criminal history record.
         • An indictment, information, or other changing document was filed or issued in the case
             giving rise to the criminal history record, but was dismissed or nolle prosequi by the State,
             was dismissed by the court, a judgment of acquittal was rendered, or a verdict of not guilty
             was rendered.
         • The person is not seeking to expunge a criminal history record relating to a violation of
             certain enumerated offenses.
         • The person has never, prior to filing the application for a certificate of eligibility, been either:
             o Adjudicated guilty of any criminal offense or comparable ordinance violation; or
             o Adjudicated delinquent of any felony or certain enumerated misdemeanors as a juvenile.
         • The person has not been adjudicated guilty or delinquent for committing any of the acts
             stemming from the arrest or alleged criminal activity to which the petition to expunge
             pertains.
         • The person has never secured a prior sealing or expunction, unless:
             o Expunction is sought of a criminal history record previously sealed for at least 10 years;
                 and
             o The record was sealed because adjudication was withheld, or because a judgment of
                 acquittal or verdict of not guilty was rendered.14
         A criminal history record is not eligible for court-ordered sealing or expunction if it relates to:
         • Sexual misconduct (Sections 393.135, 394.4593, and 916.1075, F.S.).
         • Illegal use of explosives (Chapter 552, F.S.).
         • Terrorism (Section 775.30, F.S).
         • Murder (Sections 782.04, 782.065, and 782.09, F.S.).
         • Manslaughter or homicide (Sections 782.07, 782.071, and 782.072, F.S.).
         • Assault or battery of one family or household member by another family or household
            member15 (Sections 784.011 and 784.03, F.S.).
10
   Section 943.0585(2)(a)1.-4., F.S.
11
   Section 943.0585(2), F.S.
12
   Section 943.0585(4), F.S.
13
   Section 943.0585(2), F.S.
14
   Section 943.0585(1), F.S.
15
   Section 741.28(3), F.S., defines family or household member as spouses, former spouses, persons related by blood or
marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family,
and persons who are parents of a child in common regardless of whether they have been married. With the exception of
BILL:   SB 54                                                                                                     Page 4
         •   Aggravated assault (Section 784.021, F.S.).
         •   Felony battery, domestic battery by strangulation, or aggravated battery (Sections 784.03,
             784.041, and 784.045, F.S.).
         •   Stalking or aggravated stalking (Section 784.048, F.S.).
         •   Luring or enticing a child (Section 787.025, F.S.).
         •   Human trafficking (Section 787.06, F.S.).
         •   Kidnapping or false imprisonment (Sections 787.01 and 787.02, F.S.).
         •   Sexual battery, unlawful sexual activity with a minor, or female genital mutilation
             (Chapter 794, F.S.).
         •   Procuring a person under the age of 18 for prostitution (Section 796.03, F.S. (2013) (repealed
             by ch. 2014-160, s. 10, L.O.F.)).
         •   Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years
             of age (Section 800.04, F.S.).
         •   Arson (Section 806.01, F.S.).
         •   Burglary of a dwelling (Section 810.02, F.S.).
         •   Voyeurism or video voyeurism (Sections 810.14 and 810.145, F.S.).
         •   Robbery or robbery by sudden snatching (Sections 812.13 and 812.131, F.S.).
         •   Carjacking (Section 812.133, F.S.).
         •   Home invasion robbery (Section 812.135, F.S.).
         •   A violation of the Florida Communications Fraud Act (Section 817.034, F.S.).
         •   Abuse of an elderly person or disabled adult or aggravated abuse of an elderly person or
             disabled adult (Section 825.102, F.S.).
         •   Lewd or lascivious offenses committed upon or in the presence of an elderly or disabled
             person (Section 825.1025, F.S.).
         •   Child abuse or aggravated child abuse (Section 827.03, F.S).
         •   Sexual performance by a child (Section 827.071, F.S.).
         •   Offenses by public officers and employees (Chapter 839, F.S.).
         •   Certain acts in connection with obscenity (Section 847.0133, F.S.).
         •   A violation of the Computer Pornography and Child Exploitation Prevention Act
             (Section 893.0135, F.S.).
         •   Selling or buying of minors (Section 847.0145, F.S.).
         •   Aircraft piracy (Section 860.16, F.S).
         •   Manufacturing a controlled substance (Chapter 893, F.S.).
         •   Drug trafficking (Section 893.135, F.S.).
         •   Any violation specified as a predicate offense for registration as a sexual predator or sexual
             offender (Sections 775.21 and 943.0535, F.S.).16
persons who have a child in common the family or household members must be currently residing or have in the past resided
together in the same single dwelling unit.
16
   Section 943.0584, F.S.
BILL:   SB 54                                                                                                              Page 5
         Other types of expunction include: lawful self-defense expunction;17 human trafficking victim
         expunction;18 automatic juvenile expunction;19 early juvenile expunction;20 administrative
         expunction;21 and juvenile diversion program expunction.22
         Sealing of a Criminal History Record
         When a criminal history record is sealed, it is preserved so that it is secure and inaccessible to
         any person who does not have a legal right to access the record or the information contained
         within the record.23 A court may order a criminal history record sealed,24 rendering it confidential
         and exempt from Florida’s public records laws.25 Only the following entities may access a sealed
         criminal history record:
         • The subject of the record;
         • His or her attorney;
         • Criminal justice agencies for criminal justice purposes;
         • Judges in the state courts system for assisting in their case-related decision-making
             responsibilities; and
         • Certain enumerated entities26 for licensing, access authorization, and employment purposes.27
         Certificate of Eligibility
         To seal a record, a person must first apply to the FDLE for a certificate of eligibility, which the
         FDLE must issue to a person who:
         • Has submitted a certified copy of the charge disposition he or she seeks to seal;
         • Is not seeking to seal a criminal history record relating to a violation of certain enumerated
            offenses;
         • Has never, prior to filing the application for a certificate of eligibility, been either:
            o Adjudicated guilty of any criminal offense or comparable ordinance violation; or
            o Adjudicated delinquent of any felony or certain enumerated misdemeanors as a juvenile.
         • Has not been adjudicated guilty or delinquent for committing any of the acts stemming from
            the arrest or alleged criminal activity to which the petition to seal pertains;
         • Has never secured a prior sealing or expunction;
17
   Section 943.0578, F.S.
18
   Section 943.0583, F.S.
19
   Section 943.0515(1)(b)1., F.S.
20
   Section 943.0515(1)(b)2., F.S.
21
   Section 943.0581, F.S.
22
   Section 943.0582, F.S.
23
   Section 943.045(19), F.S.
24
   Section 943.059, F.S.
25
   Sections 943.059(6) and 119.07(1), F.S.; Art. I, s. 24(a), Fla. Const.
26
   Section 943.059(6)(b), F.S., provides that enumerated entities include criminal justice agencies, The Florida Bar, the
Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the
Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department
of Elderly Affairs, the Department of Juvenile Justice, the Department of Education, a district school board, a university
laboratory school, a charter school, a private or parochial school, a local governmental entity that licenses child care facilities,
the Division of Insurance Agent and Agency Services within the Department of Financial Services, and the Bureau of
License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services.
27
   Sections 943.059(6)(a), F.S.
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         •   Is no longer under court supervision related to the disposition of the arrest or alleged criminal
             activity to which the petition to seal pertains; and
         •   Pays a $75 processing fee to the FDLE.28
         Court Ordered Sealing
         Upon receiving a certificate of eligibility from the FDLE, a person must petition the court to seal
         the record.29 A complete petition contains both a valid certificate of eligibility, issued within the
         previous 12 months, and a sworn statement from the petitioner attesting to his or her eligibility.30
         It is solely within the court’s discretion to grant or deny a petition to seal.31
         Upon sealing of a criminal history record, the subject of the record may lawfully deny or fail to
         acknowledge the arrests covered by the sealed record, with exceptions for certain state
         employment positions, professional licensing purposes, purchasing a firearm, applying for a
         concealed weapons permit, seeking expunction, or if the subject is a defendant in a criminal
         prosecution.32
         Dismissal Incompetence to Proceed Due to Mental Illness
         Section 916.145, F.S., provides that the charges against a defendant who has been adjudicated
         incompetent to proceed due to mental illness must be dismissed without prejudice to the state if
         the defendant remains incompetent to proceed for 5 continuous, uninterrupted years after such
         determination, unless the court in its order specifies:
         • Its reason for believing that the defendant will become competent to proceed within the
             foreseeable future; and
         • The time within which the defendant is expected to become competent to proceed.
         The court may dismiss charges against a defendant who has been adjudicated incompetent to
         proceed due to mental illness 3 years after such determination, unless the charge is for a
         specified offense.33
         The state may refile any charge that was dismissed pursuant to s. 916.145, F.S.
28
   Section 943.059(2), F.S.
29
   Section 943.059(3), F.S
30
   Section 943.059(2)(b), F.S.
31
   Section 943.059, F.S.
32
   Sections 943.059(6)(b), F.S.
33
   Section 916.145(1)(a)-(u), F.S.; Specified offenses include: arson; sexual battery