Florida Senate - 2013 SB 1644
By Senator Flores
37-01323C-13 20131644__
1 A bill to be entitled
2 An act relating to victims of human trafficking;
3 creating s. 943.0583, F.S.; providing definitions;
4 providing for the expungement of the criminal history
5 record of a victim of human trafficking; designating
6 what offenses may be expunged; providing exceptions;
7 providing that an expunged conviction is deemed to
8 have been vacated due to a substantive defect in the
9 underlying criminal proceedings; providing for a
10 period in which such expungement must be sought;
11 providing that official documentation of the victim’s
12 status as a human trafficking victim creates a
13 presumption; providing a standard of proof absent
14 official documentation; providing requirements for
15 petitions; providing criminal penalties for false
16 statements on such petitions; providing for parties to
17 and service of such petitions; providing for
18 electronic appearances of petitioners and attorneys at
19 hearings; providing for orders of relief; providing
20 for physical destruction of certain records;
21 authorizing a person whose records are expunged to
22 lawfully deny or fail to acknowledge the arrests
23 covered by the expunged record; providing that such
24 lawful denial does not constitute perjury or subject
25 the person to liability; providing that cross
26 references are considered general reference for the
27 purpose of incorporation by reference; amending ss.
28 943.0582, 943.0585, 943.059, and 961.06, F.S.;
29 conforming provisions to changes made by the act;
30 providing an effective date.
31
32 WHEREAS, victims of trafficking may be forced to engage in
33 a variety of illegal acts beyond prostitution, and
34 WHEREAS, trafficked persons are not always recognized as
35 victims by the police and prosecutors and are thus pressured
36 into pleading guilty or do not understand the consequences of
37 criminal charges, and
38 WHEREAS, all persons with criminal records reflecting their
39 involvement in the sex industry may face barriers to employment
40 and other life opportunities long after they escape from their
41 trafficking situations, and
42 WHEREAS, there is a genuine need for a workable solution to
43 alleviate the impact of the collateral consequences of
44 conviction for victims of human trafficking, NOW, THEREFORE,
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Section 943.0583, Florida Statutes, is created
49 to read:
50 943.0583 Human trafficking victim expunction.—
51 (1) As used in this section, the term:
52 (a) “Human trafficking” has the same meaning as provided in
53 s. 787.06.
54 (b) “Official documentation” means any documentation issued
55 by a federal, state, or local agency tending to show a person’s
56 status as a victim of human trafficking.
57 (c) “Victim of human trafficking” means a person subjected
58 to coercion, as defined in s. 787.06, for the purpose of being
59 used in human trafficking, a minor who is a victim of human
60 trafficking through coercion, as defined in s. 787.06, or an
61 individual subject to human trafficking as defined by federal
62 law.
63 (2) Notwithstanding any other provision of law, the court
64 of original jurisdiction over the crime sought to be expunged
65 may order a criminal justice agency to expunge the criminal
66 history record of a victim of human trafficking who complies
67 with the requirements of this section. This section does not
68 confer any right to the expunction of any criminal history
69 record, and any request for expunction of a criminal history
70 record may be denied at the sole discretion of the court.
71 (3) A person who is a victim of human trafficking may
72 petition for the expunction of any conviction for an offense
73 committed while he or she was a victim of human trafficking,
74 which offense was committed as a part of the human trafficking
75 scheme of which he or she was a victim or at the direction of an
76 operator of the scheme, including, but not limited to,
77 violations under chapters 796 and 847. However, this section
78 does not apply to any offense listed in s. 775.084(1)(b)1.
79 Determination of the petition under this section should be by a
80 preponderance of the evidence. A conviction expunged under this
81 section is deemed to have been vacated due to a substantive
82 defect in the underlying criminal proceedings.
83 (4) A petition under this section must be initiated by the
84 petitioner with due diligence after the victim has ceased to be
85 a victim of human trafficking or has sought services for victims
86 of human trafficking, subject to reasonable concerns for the
87 safety of the victim, family members of the victim, or other
88 victims of human trafficking that may be jeopardized by the
89 bringing of such petition or for other reasons consistent with
90 the purpose of this section.
91 (5) Official documentation of the victim’s status creates a
92 presumption that his or her participation in the offense was a
93 result of having been a victim of human trafficking but is not
94 required for granting a petition under this section. A
95 determination made without such official documentation must be
96 made by a showing of clear and convincing evidence.
97 (6) Each petition to a court to expunge a criminal history
98 record is complete only when accompanied by:
99 (a) The petitioner’s sworn statement attesting that the
100 petitioner is eligible for such an expunction to the best of his
101 or her knowledge or belief and does not have any other petition
102 to expunge or any petition to seal pending before any court.
103 (b) Official documentation of the petitioner’s status as a
104 victim of human trafficking, if any exists.
105
106 Any person who knowingly provides false information on such
107 sworn statement to the court commits a felony of the third
108 degree, punishable as provided in s. 775.082, s. 775.083, or s.
109 775.084.
110 (7)(a) In judicial proceedings under this section, a copy
111 of the completed petition to expunge shall be served upon the
112 appropriate state attorney or the statewide prosecutor and upon
113 the arresting agency; however, it is not necessary to make any
114 agency other than the state a party. The appropriate state
115 attorney or the statewide prosecutor and the arresting agency
116 may respond to the court regarding the completed petition to
117 expunge.
118 (b) The petitioner or the petitioner’s attorney may appear
119 at any hearing under this section telephonically, via video
120 conference, or by other electronic means.
121 (c) If relief is granted by the court, the clerk of the
122 court shall certify copies of the order to the appropriate state
123 attorney or the statewide prosecutor and the arresting agency.
124 The arresting agency is responsible for forwarding the order to
125 any other agency listed in the court order to which the
126 arresting agency disseminated the criminal history record
127 information to which the order pertains. The department shall
128 forward the order to expunge to the Federal Bureau of
129 Investigation. The clerk of the court shall certify a copy of
130 the order to any other agency that the records of the court
131 reflect has received the criminal history record from the court.
132 (8)(a) Any criminal history record of a minor or an adult
133 that is ordered expunged by the court of original jurisdiction
134 over the crime sought to be expunged pursuant to this section
135 must be physically destroyed or obliterated by any criminal
136 justice agency having custody of such record, except that any
137 criminal history record in the custody of the department must be
138 retained in all cases.
139 (b) The person who is the subject of a criminal history
140 record that is expunged under this section may lawfully deny or
141 fail to acknowledge the arrests covered by the expunged record.
142 (c) A person who has been granted an expunction under this
143 section may not be held under any law of this state to commit
144 perjury or to be otherwise liable for giving a false statement
145 by reason of such person’s failure to recite or acknowledge an
146 expunged criminal history record.
147 (9) Any reference to any other chapter, section, or
148 subdivision of the Florida Statutes in this section constitutes
149 a general reference under the doctrine of incorporation by
150 reference.
151 Section 2. Subsection (6) of section 943.0582, Florida
152 Statutes, is amended to read:
153 943.0582 Prearrest, postarrest, or teen court diversion
154 program expunction.—
155 (6) Expunction or sealing granted under this section does
156 not prevent the minor who receives such relief from petitioning
157 for the expunction or sealing of a later criminal history record
158 as provided for in ss. 943.0583, 943.0585, and 943.059, if the
159 minor is otherwise eligible under those sections.
160 Section 3. Paragraph (a) of subsection (4) of section
161 943.0585, Florida Statutes, is amended to read:
162 943.0585 Court-ordered expunction of criminal history
163 records.—The courts of this state have jurisdiction over their
164 own procedures, including the maintenance, expunction, and
165 correction of judicial records containing criminal history
166 information to the extent such procedures are not inconsistent
167 with the conditions, responsibilities, and duties established by
168 this section. Any court of competent jurisdiction may order a
169 criminal justice agency to expunge the criminal history record
170 of a minor or an adult who complies with the requirements of
171 this section. The court shall not order a criminal justice
172 agency to expunge a criminal history record until the person
173 seeking to expunge a criminal history record has applied for and
174 received a certificate of eligibility for expunction pursuant to
175 subsection (2). A criminal history record that relates to a
176 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
177 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
178 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
179 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
180 any violation specified as a predicate offense for registration
181 as a sexual predator pursuant to s. 775.21, without regard to
182 whether that offense alone is sufficient to require such
183 registration, or for registration as a sexual offender pursuant
184 to s. 943.0435, may not be expunged, without regard to whether
185 adjudication was withheld, if the defendant was found guilty of
186 or pled guilty or nolo contendere to the offense, or if the
187 defendant, as a minor, was found to have committed, or pled
188 guilty or nolo contendere to committing, the offense as a
189 delinquent act. The court may only order expunction of a
190 criminal history record pertaining to one arrest or one incident
191 of alleged criminal activity, except as provided in this
192 section. The court may, at its sole discretion, order the
193 expunction of a criminal history record pertaining to more than
194 one arrest if the additional arrests directly relate to the
195 original arrest. If the court intends to order the expunction of
196 records pertaining to such additional arrests, such intent must
197 be specified in the order. A criminal justice agency may not
198 expunge any record pertaining to such additional arrests if the
199 order to expunge does not articulate the intention of the court
200 to expunge a record pertaining to more than one arrest. This
201 section does not prevent the court from ordering the expunction
202 of only a portion of a criminal history record pertaining to one
203 arrest or one incident of alleged criminal activity.
204 Notwithstanding any law to the contrary, a criminal justice
205 agency may comply with laws, court orders, and official requests
206 of other jurisdictions relating to expunction, correction, or
207 confidential handling of criminal history records or information
208 derived therefrom. This section does not confer any right to the
209 expunction of any criminal history record, and any request for
210 expunction of a criminal history record may be denied at the
211 sole discretion of the court.
212 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
213 criminal history record of a minor or an adult which is ordered
214 expunged by a court of competent jurisdiction pursuant to this
215 section must be physically destroyed or obliterated by any
216 criminal justice agency having custody of such record; except
217 that any criminal history record in the custody of the
218 department must be retained in all cases. A criminal history
219 record ordered expunged that is retained by the department is
220 confidential and exempt from the provisions of s. 119.07(1) and
221 s. 24(a), Art. I of the State Constitution and not available to
222 any person or entity except upon order of a court of competent
223 jurisdiction. A criminal justice agency may retain a notation
224 indicating compliance with an order to expunge.
225 (a) The person who is the subject of a criminal history
226 record that is expunged under this section or under other
227 provisions of law, including former s. 893.14, former s. 901.33,
228 and former s. 943.058, may lawfully deny or fail to acknowledge
229 the arrests covered by the expunged record, except when the
230 subject of the record:
231 1. Is a candidate for employment with a criminal justice
232 agency;
233 2. Is a defendant in a criminal prosecution;
234 3. Concurrently or subsequently petitions for relief under
235 this section, s. 943.0583, or s. 943.059;
236 4. Is a candidate for admission to The Florida Bar;
237 5. Is seeking to be employed or licensed by or to contract
238 with the Department of Children and Family Services, the
239 Division of Vocational Rehabilitation within the Department of
240 Education, the Agency for Health Care Administration, the Agency
241 for Persons with Disabilities, the Department of Health, the
242 Department of Elderly Affairs, or the Department of Juvenile
243 Justice or to be employed or used by such contractor or licensee
244 in a sensitive position having direct contact with children, the
245 disabled, or the elderly;
246 6. Is seeking to be employed or licensed by the Department
247 of Education, any district school board, any university
248 laboratory school, any charter school, any private or parochial
249 school, or any local governmental entity that licenses child
250 care facilities; or
251 7. Is seeking authorization from a seaport listed in s.
252 311.09 for employment within or access to one or more of such
253 seaports pursuant to s. 311.12.
254 Section 4. Paragraph (a) of subsection (4) of section
255 943.059, Florida Statutes, is amended to read:
256 943.059 Court-ordered sealing of criminal history records.
257 The courts of this state shall continue to have jurisdiction
258 over their own procedures, including the maintenance, sealing,
259 and correction of judicial records containing criminal history
260 information to the extent such procedures are not inconsistent
261 with the conditions, responsibilities, and duties established by
262 this section. Any court of competent jurisdiction may order a
263 criminal justice agency to seal the criminal history record of a
264 minor or an adult who complies with the requirements of this
265 section. The court shall not order a criminal justice agency to
266 seal a criminal history record until the person seeking to seal
267 a criminal history record has applied for and received a
268 certificate of eligibility for sealing pursuant to subsection
269 (2). A criminal history record that relates to a violation of s.
270 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
271 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
272 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
273 916.1075, a violation enumerated in s. 907.041, or any violation
274 specified as a predicate offense for registration as a sexual
275 predator pursuant to s. 775.21, without regard to whether that
276 offense alone is sufficient to require such registration, or for
277 registration as a sexual offender pursuant to s. 943.0435, may
278 not be sealed, without regard to whether adjudication was
279 withheld, if the defendant was found guilty of or pled guilty or
280 nolo contendere to the offense, or if the defendant, as a minor,
281 was found to have committed or pled guilty or nolo contendere to
282 committing the offense as a delinquent act. The court may only
283 order sealing of a criminal history record pertaining to one
284 arrest or one incident of alleged criminal activity, except as
285 provided in this section. The court may, at its sole discretion,
286 order the sealing of a criminal history record pertaining to
287 more than one arrest if the additional arrests directly relate
288 to the original arrest. If the court intends to order the
289 sealing of records pertaining to such additional arrests, such
290 intent must be specified in the order. A criminal justice agency
291 may not seal any record pertaining to such additional arrests if
292 the order to seal does not articulate the intention of the court
293 to seal records pertaining to more than one arrest. This section
294 does not prevent the court from ordering the sealing of only a
295 portion of a criminal history record pertaining to one arrest or
296 one incident of alleged criminal activity. Notwithstanding any
297 law to the contrary, a criminal justice agency may comply with
298 laws, court orders, and official requests of other jurisdictions
299 relating to sealing, correction, or confidential handling of
300 criminal history records or information derived therefrom. This
301 section does not confer any right to the sealing of any criminal
302 history record, and any request for sealing a criminal history
303 record may be denied at the sole discretion of the court.
304 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
305 history record of a minor or an adult which is ordered sealed by
306 a court of competent jurisdiction pursuant to this section is
307 confidential and exempt from the provisions of s. 119.07(1) and
308 s. 24(a), Art. I of the State Constitution and is available only
309 to the person who is the subject of the record, to the subject’s
310 attorney, to criminal justice agencies for their respective
311 criminal justice purposes, which include conducting a criminal
312 history background check for approval of firearms purchases or
313 transfers as authorized by state or federal law, to judges in
314 the state courts system for the purpose of assisting them in
315 their case-related decisionmaking responsibilities, as set forth
316 in s. 943.053(5), or to those entities set forth in
317 subparagraphs (a)1., 4., 5., 6., and 8. for their respective
318 licensing, access authorization, and employment purposes.
319 (a) The subject of a criminal history record sealed under
320 this section or under other provisions of law, including former
321 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
322 deny or fail to acknowledge the arrests covered by the sealed
323 record, except when the subject of the record:
324 1. Is a candidate for employment with a criminal justice
325 agency;
326 2. Is a defendant in a criminal prosecution;
327 3. Concurrently or subsequently petitions for relief under
328 this section, s. 943.0583, or s. 943.0585;
329 4. Is a candidate for admission to The Florida Bar;
330 5. Is seeking to be employed or licensed by or to contract
331 with the Department of Children and Family Services, the
332 Division of Vocational Rehabilitation within the Department of
333 Education, the Agency for Health Care Administration, the Agency
334 for Persons with Disabilities, the Department of Health, the
335 Department of Elderly Affairs, or the Department of Juvenile
336 Justice or to be employed or used by such contractor or licensee
337 in a sensitive position having direct contact with children, the
338 disabled, or the elderly;
339 6. Is seeking to be employed or licensed by the Department
340 of Education, any district school board, any university
341 laboratory school, any charter school, any private or parochial
342 school, or any local governmental entity that licenses child
343 care facilities;
344 7. Is attempting to purchase a firearm from a licensed
345 importer, licensed manufacturer, or licensed dealer and is
346 subject to a criminal history check under state or federal law;
347 or
348 8. Is seeking authorization from a Florida seaport
349 identified in s. 311.09 for employment within or access to one
350 or more of such seaports pursuant to s. 311.12.
351 Section 5. Paragraph (e) of subsection (1) of section
352 961.06, Florida Statutes, is amended to read:
353 961.06 Compensation for wrongful incarceration.—
354 (1) Except as otherwise provided in this act and subject to
355 the limitations and procedures prescribed in this section, a
356 person who is found to be entitled to compensation under the
357 provisions of this act is entitled to:
358 (e) Notwithstanding any provision to the contrary in s.
359 943.0583 or s. 943.0585, immediate administrative expunction of
360 the person’s criminal record resulting from his or her wrongful
361 arrest, wrongful conviction, and wrongful incarceration. The
362 Department of Legal Affairs and the Department of Law
363 Enforcement shall, upon a determination that a claimant is
364 entitled to compensation, immediately take all action necessary
365 to administratively expunge the claimant’s criminal record
366 arising from his or her wrongful arrest, wrongful conviction,
367 and wrongful incarceration. All fees for this process shall be
368 waived.
369
370 The total compensation awarded under paragraphs (a), (c), and
371 (d) may not exceed $2 million. No further award for attorney’s
372 fees, lobbying fees, costs, or other similar expenses shall be
373 made by the state.
374 Section 6. This act shall take effect July 1, 2013.