Florida Senate - 2014                       CS for CS for SB 448
       
       
        
       By the Committees on Rules; and Judiciary; and Senator Evers
       
       
       
       
       
       595-02529-14                                           2014448c2
    1                        A bill to be entitled                      
    2         An act relating to the threatened use of force;
    3         providing legislative findings and intent; amending s.
    4         775.087, F.S.; creating an exception to the minimum
    5         mandatory sentence for aggravated assault under
    6         specified conditions; amending s. 776.012, F.S.;
    7         applying provisions relating to the use of force in
    8         defense of persons to the threatened use of force;
    9         amending s. 776.013, F.S.; applying presumption
   10         relating to the use of deadly force to the threatened
   11         use of deadly force in the defense of a residence and
   12         similar circumstances; applying provisions relating to
   13         such use of force to the threatened use of force;
   14         amending s. 776.031, F.S.; applying provisions
   15         relating to the use of force in defense of property to
   16         the threatened use of force; amending s. 776.032,
   17         F.S.; applying immunity provisions that relate to the
   18         use of force to the threatened use of force; amending
   19         s. 776.041, F.S.; applying provisions relating to the
   20         use of force by an aggressor to the threatened use of
   21         force; providing exceptions; amending s. 776.051,
   22         F.S.; providing that a person is not justified in the
   23         threatened use of force to resist an arrest by a law
   24         enforcement officer; creating s. 776.09, F.S.;
   25         providing that a person is eligible to apply for a
   26         certificate of eligibility for expunction,
   27         notwithstanding the eligibility requirements, if the
   28         charging document in the case is not filed or is
   29         dismissed because it is found that the person acted in
   30         lawful self-defense pursuant to the provisions related
   31         to the justifiable use of force in ch. 776, F.S.;
   32         requiring a prosecutor, statewide prosecutor, or court
   33         to document and retain such findings; amending s.
   34         943.0585, F.S.; requiring the Department of Law
   35         Enforcement to provide a certificate of eligibility
   36         for expunction, notwithstanding the eligibility
   37         requirements, to a person who has a written, certified
   38         statement from a prosecutor or statewide prosecutor
   39         indicating that the charging document in the case was
   40         not filed or was dismissed because it was found that
   41         the person acted in lawful self-defense pursuant to
   42         the provisions related to the justifiable use of force
   43         in ch. 776, F.S.; providing a penalty for knowingly
   44         providing false information on a sworn statement;
   45         providing applicability; requiring the department to
   46         adopt rules; providing an effective date.
   47          
   48  Be It Enacted by the Legislature of the State of Florida:
   49  
   50         Section 1. (1) The Legislature finds that persons have been
   51  criminally prosecuted and have been sentenced to mandatory
   52  minimum terms of imprisonment pursuant to s. 775.087, Florida
   53  Statutes, for threatening to use force in a manner and under
   54  circumstances that would have been justifiable under chapter
   55  776, Florida Statutes, had force actually been used.
   56         (2) The Legislature intends to:
   57         (a) Provide criminal and civil immunity to those who
   58  threaten to use force if the threat was made in a manner and
   59  under circumstances that would have been immune under chapter
   60  776, Florida Statutes, had force actually been used.
   61         (b) Clarify that those who threaten to use force may claim
   62  self-defense if the threat was made in a manner and under
   63  circumstances that would have been justifiable under chapter
   64  776, Florida Statutes, had force actually been used.
   65         (c) Ensure that those who threaten to use force in a manner
   66  and under circumstances that are justifiable under chapter 776,
   67  Florida Statutes, are not sentenced to a mandatory minimum term
   68  of imprisonment pursuant to s. 775.087, Florida Statutes.
   69         (d) Encourage those who have been sentenced to a mandatory
   70  minimum term of imprisonment pursuant to s. 775.087, Florida
   71  Statutes, for threatening to use force in a manner and under
   72  circumstances that are justifiable under chapter 776, Florida
   73  Statutes, to apply for executive clemency.
   74         Section 2. Subsection (2) of section 775.087, Florida
   75  Statutes, is amended to read:
   76         775.087 Possession or use of weapon; aggravated battery;
   77  felony reclassification; minimum sentence.—
   78         (2)(a)1. Any person who is convicted of a felony or an
   79  attempt to commit a felony, regardless of whether the use of a
   80  weapon is an element of the felony, and the conviction was for:
   81         a. Murder;
   82         b. Sexual battery;
   83         c. Robbery;
   84         d. Burglary;
   85         e. Arson;
   86         f. Aggravated assault;
   87         g. Aggravated battery;
   88         h. Kidnapping;
   89         i. Escape;
   90         j. Aircraft piracy;
   91         k. Aggravated child abuse;
   92         l. Aggravated abuse of an elderly person or disabled adult;
   93         m. Unlawful throwing, placing, or discharging of a
   94  destructive device or bomb;
   95         n. Carjacking;
   96         o. Home-invasion robbery;
   97         p. Aggravated stalking;
   98         q. Trafficking in cannabis, trafficking in cocaine, capital
   99  importation of cocaine, trafficking in illegal drugs, capital
  100  importation of illegal drugs, trafficking in phencyclidine,
  101  capital importation of phencyclidine, trafficking in
  102  methaqualone, capital importation of methaqualone, trafficking
  103  in amphetamine, capital importation of amphetamine, trafficking
  104  in flunitrazepam, trafficking in gamma-hydroxybutyric acid
  105  (GHB), trafficking in 1,4-Butanediol, trafficking in
  106  Phenethylamines, or other violation of s. 893.135(1); or
  107         r. Possession of a firearm by a felon
  108  
  109  and during the commission of the offense, such person actually
  110  possessed a “firearm” or “destructive device” as those terms are
  111  defined in s. 790.001, shall be sentenced to a minimum term of
  112  imprisonment of 10 years, except that a person who is convicted
  113  for aggravated assault, possession of a firearm by a felon, or
  114  burglary of a conveyance shall be sentenced to a minimum term of
  115  imprisonment of 3 years if such person possessed a “firearm” or
  116  “destructive device” during the commission of the offense.
  117  However, if an offender who is convicted of the offense of
  118  possession of a firearm by a felon has a previous conviction of
  119  committing or attempting to commit a felony listed in s.
  120  775.084(1)(b)1. and actually possessed a firearm or destructive
  121  device during the commission of the prior felony, the offender
  122  shall be sentenced to a minimum term of imprisonment of 10
  123  years.
  124         2. Any person who is convicted of a felony or an attempt to
  125  commit a felony listed in sub-subparagraphs (a)1.a.-q.,
  126  regardless of whether the use of a weapon is an element of the
  127  felony, and during the course of the commission of the felony
  128  such person discharged a “firearm” or “destructive device” as
  129  defined in s. 790.001 shall be sentenced to a minimum term of
  130  imprisonment of 20 years.
  131         3. Any person who is convicted of a felony or an attempt to
  132  commit a felony listed in sub-subparagraphs (a)1.a.-q.,
  133  regardless of whether the use of a weapon is an element of the
  134  felony, and during the course of the commission of the felony
  135  such person discharged a “firearm” or “destructive device” as
  136  defined in s. 790.001 and, as the result of the discharge, death
  137  or great bodily harm was inflicted upon any person, the
  138  convicted person shall be sentenced to a minimum term of
  139  imprisonment of not less than 25 years and not more than a term
  140  of imprisonment of life in prison.
  141         (b) Subparagraph (a)1., subparagraph (a)2., or subparagraph
  142  (a)3. does not prevent a court from imposing a longer sentence
  143  of incarceration as authorized by law in addition to the minimum
  144  mandatory sentence, or from imposing a sentence of death
  145  pursuant to other applicable law. Subparagraph (a)1.,
  146  subparagraph (a)2., or subparagraph (a)3. does not authorize a
  147  court to impose a lesser sentence than otherwise required by
  148  law.
  149  
  150  Notwithstanding s. 948.01, adjudication of guilt or imposition
  151  of sentence shall not be suspended, deferred, or withheld, and
  152  the defendant is not eligible for statutory gain-time under s.
  153  944.275 or any form of discretionary early release, other than
  154  pardon or executive clemency, or conditional medical release
  155  under s. 947.149, prior to serving the minimum sentence.
  156         (c) If the minimum mandatory terms of imprisonment imposed
  157  pursuant to this section exceed the maximum sentences authorized
  158  by s. 775.082, s. 775.084, or the Criminal Punishment Code under
  159  chapter 921, then the mandatory minimum sentence must be
  160  imposed. If the mandatory minimum terms of imprisonment pursuant
  161  to this section are less than the sentences that could be
  162  imposed as authorized by s. 775.082, s. 775.084, or the Criminal
  163  Punishment Code under chapter 921, then the sentence imposed by
  164  the court must include the mandatory minimum term of
  165  imprisonment as required in this section.
  166         (d) It is the intent of the Legislature that offenders who
  167  actually possess, carry, display, use, threaten to use, or
  168  attempt to use firearms or destructive devices be punished to
  169  the fullest extent of the law, and the minimum terms of
  170  imprisonment imposed pursuant to this subsection shall be
  171  imposed for each qualifying felony count for which the person is
  172  convicted. The court shall impose any term of imprisonment
  173  provided for in this subsection consecutively to any other term
  174  of imprisonment imposed for any other felony offense.
  175         (e) The minimum mandatory sentence set forth in paragraph
  176  (2)(a) for a conviction for aggravated assault under s. 784.021
  177  shall not be imposed upon a person who uses force to defend
  178  himself, herself, or another if the court finds in writing that:
  179         1. The person had a good faith belief that such conduct was
  180  necessary to defend himself, herself, or another against a
  181  person’s imminent use of unlawful force consistent with s.
  182  776.012 and the act was not done in the course of the commission
  183  of another crime; or
  184         2.a. The person did not intend to cause harm and did not
  185  cause physical harm to another; and
  186         b. The aggravated assault was not committed in the course
  187  of committing another crime.
  188  
  189  Nothing in this paragraph shall be construed to change or modify
  190  any other provision related to the use of force in chapter 776.
  191         Section 3. Section 776.012, Florida Statutes, is amended to
  192  read:
  193         776.012 Use or threatened use of force in defense of
  194  person.—A person is justified in using force, except deadly
  195  force, or threatening to use force against another when and to
  196  the extent that the person reasonably believes that such conduct
  197  is necessary to defend himself or herself or another against the
  198  other’s imminent use of unlawful force. However, a person is
  199  justified in using or threatening to use the use of deadly force
  200  and does not have a duty to retreat if:
  201         (1) He or she reasonably believes that such force is
  202  necessary to prevent imminent death or great bodily harm to
  203  himself or herself or another or to prevent the imminent
  204  commission of a forcible felony; or
  205         (2) Under those circumstances permitted pursuant to s.
  206  776.013.
  207         Section 4. Section 776.013, Florida Statutes, is amended to
  208  read:
  209         776.013 Home protection; use or threatened use of deadly
  210  force; presumption of fear of death or great bodily harm.—
  211         (1) A person is presumed to have held a reasonable fear of
  212  imminent peril of death or great bodily harm to himself or
  213  herself or another when using or threatening to use defensive
  214  force that is intended or likely to cause death or great bodily
  215  harm to another if:
  216         (a) The person against whom the defensive force was used or
  217  threatened was in the process of unlawfully and forcefully
  218  entering, or had unlawfully and forcibly entered, a dwelling,
  219  residence, or occupied vehicle, or if that person had removed or
  220  was attempting to remove another against that person’s will from
  221  the dwelling, residence, or occupied vehicle; and
  222         (b) The person who uses or threatens to use defensive force
  223  knew or had reason to believe that an unlawful and forcible
  224  entry or unlawful and forcible act was occurring or had
  225  occurred.
  226         (2) The presumption set forth in subsection (1) does not
  227  apply if:
  228         (a) The person against whom the defensive force is used or
  229  threatened has the right to be in or is a lawful resident of the
  230  dwelling, residence, or vehicle, such as an owner, lessee, or
  231  titleholder, and there is not an injunction for protection from
  232  domestic violence or a written pretrial supervision order of no
  233  contact against that person; or
  234         (b) The person or persons sought to be removed is a child
  235  or grandchild, or is otherwise in the lawful custody or under
  236  the lawful guardianship of, the person against whom the
  237  defensive force is used or threatened; or
  238         (c) The person who uses or threatens to use defensive force
  239  is engaged in an unlawful activity or is using the dwelling,
  240  residence, or occupied vehicle to further an unlawful activity;
  241  or
  242         (d) The person against whom the defensive force is used or
  243  threatened is a law enforcement officer, as defined in s.
  244  943.10(14), who enters or attempts to enter a dwelling,
  245  residence, or vehicle in the performance of his or her official
  246  duties and the officer identified himself or herself in
  247  accordance with any applicable law or the person using or
  248  threatening to use force knew or reasonably should have known
  249  that the person entering or attempting to enter was a law
  250  enforcement officer.
  251         (3) A person who is not engaged in an unlawful activity and
  252  who is attacked in any other place where he or she has a right
  253  to be has no duty to retreat and has the right to stand his or
  254  her ground and use or threaten to use meet force with force,
  255  including deadly force if he or she reasonably believes it is
  256  necessary to do so to prevent death or great bodily harm to
  257  himself or herself or another or to prevent the commission of a
  258  forcible felony.
  259         (4) A person who unlawfully and by force enters or attempts
  260  to enter a person’s dwelling, residence, or occupied vehicle is
  261  presumed to be doing so with the intent to commit an unlawful
  262  act involving force or violence.
  263         (5) As used in this section, the term:
  264         (a) “Dwelling” means a building or conveyance of any kind,
  265  including any attached porch, whether the building or conveyance
  266  is temporary or permanent, mobile or immobile, which has a roof
  267  over it, including a tent, and is designed to be occupied by
  268  people lodging therein at night.
  269         (b) “Residence” means a dwelling in which a person resides
  270  either temporarily or permanently or is visiting as an invited
  271  guest.
  272         (c) “Vehicle” means a conveyance of any kind, whether or
  273  not motorized, which is designed to transport people or
  274  property.
  275         Section 5. Section 776.031, Florida Statutes, is amended to
  276  read:
  277         776.031 Use or threatened use of force in defense of
  278  property others.—A person is justified in using the use of
  279  force, except deadly force, or threatening to use force against
  280  another when and to the extent that the person reasonably
  281  believes that such conduct is necessary to prevent or terminate
  282  the other’s trespass on, or other tortious or criminal
  283  interference with, either real property other than a dwelling or
  284  personal property, lawfully in his or her possession or in the
  285  possession of another who is a member of his or her immediate
  286  family or household or of a person whose property he or she has
  287  a legal duty to protect. However, a the person is justified in
  288  using the use of deadly force only if he or she reasonably
  289  believes that such conduct force is necessary to prevent the
  290  imminent commission of a forcible felony. A person does not have
  291  a duty to retreat if the person is in a place where he or she
  292  has a right to be.
  293         Section 6. Section 776.032, Florida Statutes, is amended to
  294  read:
  295         776.032 Immunity from criminal prosecution and civil action
  296  for justifiable use or threatened use of force.—
  297         (1) A person who uses or threatens to use force as
  298  permitted in s. 776.012, s. 776.013, or s. 776.031 is justified
  299  in using such conduct force and is immune from criminal
  300  prosecution and civil action for the use or threatened use of
  301  such force, unless the person against whom force was used or
  302  threatened is a law enforcement officer, as defined in s.
  303  943.10(14), who was acting in the performance of his or her
  304  official duties and the officer identified himself or herself in
  305  accordance with any applicable law or the person using or
  306  threatening to use force knew or reasonably should have known
  307  that the person was a law enforcement officer. As used in this
  308  subsection, the term “criminal prosecution” includes arresting,
  309  detaining in custody, and charging or prosecuting the defendant.
  310         (2) A law enforcement agency may use standard procedures
  311  for investigating the use or threatened use of force as
  312  described in subsection (1), but the agency may not arrest the
  313  person for using or threatening to use force unless it
  314  determines that there is probable cause that the force that was
  315  used or threatened was unlawful.
  316         (3) The court shall award reasonable attorney’s fees, court
  317  costs, compensation for loss of income, and all expenses
  318  incurred by the defendant in defense of any civil action brought
  319  by a plaintiff if the court finds that the defendant is immune
  320  from prosecution as provided in subsection (1).
  321         Section 7. Section 776.041, Florida Statutes, is amended to
  322  read:
  323         776.041 Use or threatened use of force by aggressor.—The
  324  justification described in the preceding sections of this
  325  chapter is not available to a person who:
  326         (1) Is attempting to commit, committing, or escaping after
  327  the commission of, a forcible felony; or
  328         (2) Initially provokes the use or threatened use of force
  329  against himself or herself, unless:
  330         (a) Such force or threat of force is so great that the
  331  person reasonably believes that he or she is in imminent danger
  332  of death or great bodily harm and that he or she has exhausted
  333  every reasonable means to escape such danger other than the use
  334  or threatened use of force which is likely to cause death or
  335  great bodily harm to the assailant; or
  336         (b) In good faith, the person withdraws from physical
  337  contact with the assailant and indicates clearly to the
  338  assailant that he or she desires to withdraw and terminate the
  339  use or threatened use of force, but the assailant continues or
  340  resumes the use or threatened use of force.
  341         Section 8. Section 776.051, Florida Statutes, is amended to
  342  read:
  343         776.051 Use or threatened use of force in resisting arrest
  344  or making an arrest or in the execution of a legal duty;
  345  prohibition.—
  346         (1) A person is not justified in the use or threatened use
  347  of force to resist an arrest by a law enforcement officer, or to
  348  resist a law enforcement officer who is engaged in the execution
  349  of a legal duty, if the law enforcement officer was acting in
  350  good faith and he or she is known, or reasonably appears, to be
  351  a law enforcement officer.
  352         (2) A law enforcement officer, or any person whom the
  353  officer has summoned or directed to assist him or her, is not
  354  justified in the use of force if the arrest or execution of a
  355  legal duty is unlawful and known by him or her to be unlawful.
  356         Section 9. Section 776.09, Florida Statutes, is created to
  357  read:
  358         776.09 Retention of records pertaining to persons found to
  359  be acting in lawful self-defense; expunction of related criminal
  360  history records.—
  361         (1) Whenever the state attorney or statewide prosecutor
  362  dismisses an information, indictment, or other charging
  363  document, or decides not to file an information, indictment, or
  364  other charging document, because of a finding that the person
  365  accused acted in lawful self-defense pursuant to the provisions
  366  related to the justifiable use of force in chapter 776, that
  367  finding shall be documented in writing and retained in the files
  368  of the state attorney or statewide prosecutor.
  369         (2) Whenever a court dismisses an information, indictment,
  370  or other charging document because of a finding that the person
  371  accused acted in lawful self-defense pursuant to the provisions
  372  related to the justifiable use of force in chapter 776, that
  373  finding shall be recorded in an order or memorandum, which shall
  374  be retained in the court’s records.
  375         (3) Under either of these conditions, the person accused
  376  may apply for a certificate of eligibility to expunge the
  377  associated criminal history record, pursuant to s. 943.0585(5),
  378  notwithstanding the eligibility requirements prescribed in s.
  379  943.0585(1)(b) or (2).
  380         Section 10. Section 943.0585, Florida Statutes, is amended
  381  to read:
  382         943.0585 Court-ordered expunction of criminal history
  383  records.—The courts of this state have jurisdiction over their
  384  own procedures, including the maintenance, expunction, and
  385  correction of judicial records containing criminal history
  386  information to the extent such procedures are not inconsistent
  387  with the conditions, responsibilities, and duties established by
  388  this section. Any court of competent jurisdiction may order a
  389  criminal justice agency to expunge the criminal history record
  390  of a minor or an adult who complies with the requirements of
  391  this section. The court shall not order a criminal justice
  392  agency to expunge a criminal history record until the person
  393  seeking to expunge a criminal history record has applied for and
  394  received a certificate of eligibility for expunction pursuant to
  395  subsection (2) or subsection (5). A criminal history record that
  396  relates to a violation of s. 393.135, s. 394.4593, s. 787.025,
  397  chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s.
  398  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s.
  399  847.0145, s. 893.135, s. 916.1075, a violation enumerated in s.
  400  907.041, or any violation specified as a predicate offense for
  401  registration as a sexual predator pursuant to s. 775.21, without
  402  regard to whether that offense alone is sufficient to require
  403  such registration, or for registration as a sexual offender
  404  pursuant to s. 943.0435, may not be expunged, without regard to
  405  whether adjudication was withheld, if the defendant was found
  406  guilty of or pled guilty or nolo contendere to the offense, or
  407  if the defendant, as a minor, was found to have committed, or
  408  pled guilty or nolo contendere to committing, the offense as a
  409  delinquent act. The court may only order expunction of a
  410  criminal history record pertaining to one arrest or one incident
  411  of alleged criminal activity, except as provided in this
  412  section. The court may, at its sole discretion, order the
  413  expunction of a criminal history record pertaining to more than
  414  one arrest if the additional arrests directly relate to the
  415  original arrest. If the court intends to order the expunction of
  416  records pertaining to such additional arrests, such intent must
  417  be specified in the order. A criminal justice agency may not
  418  expunge any record pertaining to such additional arrests if the
  419  order to expunge does not articulate the intention of the court
  420  to expunge a record pertaining to more than one arrest. This
  421  section does not prevent the court from ordering the expunction
  422  of only a portion of a criminal history record pertaining to one
  423  arrest or one incident of alleged criminal activity.
  424  Notwithstanding any law to the contrary, a criminal justice
  425  agency may comply with laws, court orders, and official requests
  426  of other jurisdictions relating to expunction, correction, or
  427  confidential handling of criminal history records or information
  428  derived therefrom. This section does not confer any right to the
  429  expunction of any criminal history record, and any request for
  430  expunction of a criminal history record may be denied at the
  431  sole discretion of the court.
  432         (1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.—Each
  433  petition to a court to expunge a criminal history record is
  434  complete only when accompanied by:
  435         (a) A valid certificate of eligibility for expunction
  436  issued by the department pursuant to subsection (2).
  437         (b) The petitioner’s sworn statement attesting that the
  438  petitioner:
  439         1. Has never, prior to the date on which the petition is
  440  filed, been adjudicated guilty of a criminal offense or
  441  comparable ordinance violation, or been adjudicated delinquent
  442  for committing any felony or a misdemeanor specified in s.
  443  943.051(3)(b).
  444         2. Has not been adjudicated guilty of, or adjudicated
  445  delinquent for committing, any of the acts stemming from the
  446  arrest or alleged criminal activity to which the petition
  447  pertains.
  448         3. Has never secured a prior sealing or expunction of a
  449  criminal history record under this section, s. 943.059, former
  450  s. 893.14, former s. 901.33, or former s. 943.058, unless
  451  expunction is sought of a criminal history record previously
  452  sealed for 10 years pursuant to paragraph (2)(h) and the record
  453  is otherwise eligible for expunction.
  454         4. Is eligible for such an expunction to the best of his or
  455  her knowledge or belief and does not have any other petition to
  456  expunge or any petition to seal pending before any court.
  457  
  458  Any person who knowingly provides false information on such
  459  sworn statement to the court commits a felony of the third
  460  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  461  775.084.
  462         (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
  463  petitioning the court to expunge a criminal history record, a
  464  person seeking to expunge a criminal history record shall apply
  465  to the department for a certificate of eligibility for
  466  expunction. The department shall, by rule adopted pursuant to
  467  chapter 120, establish procedures pertaining to the application
  468  for and issuance of certificates of eligibility for expunction.
  469  A certificate of eligibility for expunction is valid for 12
  470  months after the date stamped on the certificate when issued by
  471  the department. After that time, the petitioner must reapply to
  472  the department for a new certificate of eligibility. Eligibility
  473  for a renewed certification of eligibility must be based on the
  474  status of the applicant and the law in effect at the time of the
  475  renewal application. The department shall issue a certificate of
  476  eligibility for expunction to a person who is the subject of a
  477  criminal history record if that person:
  478         (a) Has obtained, and submitted to the department, a
  479  written, certified statement from the appropriate state attorney
  480  or statewide prosecutor which indicates:
  481         1. That an indictment, information, or other charging
  482  document was not filed or issued in the case.
  483         2. That an indictment, information, or other charging
  484  document, if filed or issued in the case, was dismissed or nolle
  485  prosequi by the state attorney or statewide prosecutor, or was
  486  dismissed by a court of competent jurisdiction, and that none of
  487  the charges related to the arrest or alleged criminal activity
  488  to which the petition to expunge pertains resulted in a trial,
  489  without regard to whether the outcome of the trial was other
  490  than an adjudication of guilt.
  491         3. That the criminal history record does not relate to a
  492  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  493  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  494  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  495  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  496  any violation specified as a predicate offense for registration
  497  as a sexual predator pursuant to s. 775.21, without regard to
  498  whether that offense alone is sufficient to require such
  499  registration, or for registration as a sexual offender pursuant
  500  to s. 943.0435, where the defendant was found guilty of, or pled
  501  guilty or nolo contendere to any such offense, or that the
  502  defendant, as a minor, was found to have committed, or pled
  503  guilty or nolo contendere to committing, such an offense as a
  504  delinquent act, without regard to whether adjudication was
  505  withheld.
  506         (b) Remits a $75 processing fee to the department for
  507  placement in the Department of Law Enforcement Operating Trust
  508  Fund, unless such fee is waived by the executive director.
  509         (c) Has submitted to the department a certified copy of the
  510  disposition of the charge to which the petition to expunge
  511  pertains.
  512         (d) Has never, prior to the date on which the application
  513  for a certificate of eligibility is filed, been adjudicated
  514  guilty of a criminal offense or comparable ordinance violation,
  515  or been adjudicated delinquent for committing any felony or a
  516  misdemeanor specified in s. 943.051(3)(b).
  517         (e) Has not been adjudicated guilty of, or adjudicated
  518  delinquent for committing, any of the acts stemming from the
  519  arrest or alleged criminal activity to which the petition to
  520  expunge pertains.
  521         (f) Has never secured a prior sealing or expunction of a
  522  criminal history record under this section, s. 943.059, former
  523  s. 893.14, former s. 901.33, or former s. 943.058, unless
  524  expunction is sought of a criminal history record previously
  525  sealed for 10 years pursuant to paragraph (h) and the record is
  526  otherwise eligible for expunction.
  527         (g) Is no longer under court supervision applicable to the
  528  disposition of the arrest or alleged criminal activity to which
  529  the petition to expunge pertains.
  530         (h) Has previously obtained a court order sealing the
  531  record under this section, former s. 893.14, former s. 901.33,
  532  or former s. 943.058 for a minimum of 10 years because
  533  adjudication was withheld or because all charges related to the
  534  arrest or alleged criminal activity to which the petition to
  535  expunge pertains were not dismissed prior to trial, without
  536  regard to whether the outcome of the trial was other than an
  537  adjudication of guilt. The requirement for the record to have
  538  previously been sealed for a minimum of 10 years does not apply
  539  when a plea was not entered or all charges related to the arrest
  540  or alleged criminal activity to which the petition to expunge
  541  pertains were dismissed prior to trial.
  542         (3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.—
  543         (a) In judicial proceedings under this section, a copy of
  544  the completed petition to expunge shall be served upon the
  545  appropriate state attorney or the statewide prosecutor and upon
  546  the arresting agency; however, it is not necessary to make any
  547  agency other than the state a party. The appropriate state
  548  attorney or the statewide prosecutor and the arresting agency
  549  may respond to the court regarding the completed petition to
  550  expunge.
  551         (b) If relief is granted by the court, the clerk of the
  552  court shall certify copies of the order to the appropriate state
  553  attorney or the statewide prosecutor and the arresting agency.
  554  The arresting agency is responsible for forwarding the order to
  555  any other agency to which the arresting agency disseminated the
  556  criminal history record information to which the order pertains.
  557  The department shall forward the order to expunge to the Federal
  558  Bureau of Investigation. The clerk of the court shall certify a
  559  copy of the order to any other agency which the records of the
  560  court reflect has received the criminal history record from the
  561  court.
  562         (c) For an order to expunge entered by a court prior to
  563  July 1, 1992, the department shall notify the appropriate state
  564  attorney or statewide prosecutor of an order to expunge which is
  565  contrary to law because the person who is the subject of the
  566  record has previously been convicted of a crime or comparable
  567  ordinance violation or has had a prior criminal history record
  568  sealed or expunged. Upon receipt of such notice, the appropriate
  569  state attorney or statewide prosecutor shall take action, within
  570  60 days, to correct the record and petition the court to void
  571  the order to expunge. The department shall seal the record until
  572  such time as the order is voided by the court.
  573         (d) On or after July 1, 1992, the department or any other
  574  criminal justice agency is not required to act on an order to
  575  expunge entered by a court when such order does not comply with
  576  the requirements of this section. Upon receipt of such an order,
  577  the department must notify the issuing court, the appropriate
  578  state attorney or statewide prosecutor, the petitioner or the
  579  petitioner’s attorney, and the arresting agency of the reason
  580  for noncompliance. The appropriate state attorney or statewide
  581  prosecutor shall take action within 60 days to correct the
  582  record and petition the court to void the order. No cause of
  583  action, including contempt of court, shall arise against any
  584  criminal justice agency for failure to comply with an order to
  585  expunge when the petitioner for such order failed to obtain the
  586  certificate of eligibility as required by this section or such
  587  order does not otherwise comply with the requirements of this
  588  section.
  589         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  590  criminal history record of a minor or an adult which is ordered
  591  expunged by a court of competent jurisdiction pursuant to this
  592  section must be physically destroyed or obliterated by any
  593  criminal justice agency having custody of such record; except
  594  that any criminal history record in the custody of the
  595  department must be retained in all cases. A criminal history
  596  record ordered expunged that is retained by the department is
  597  confidential and exempt from the provisions of s. 119.07(1) and
  598  s. 24(a), Art. I of the State Constitution and not available to
  599  any person or entity except upon order of a court of competent
  600  jurisdiction. A criminal justice agency may retain a notation
  601  indicating compliance with an order to expunge.
  602         (a) The person who is the subject of a criminal history
  603  record that is expunged under this section or under other
  604  provisions of law, including former s. 893.14, former s. 901.33,
  605  and former s. 943.058, may lawfully deny or fail to acknowledge
  606  the arrests covered by the expunged record, except when the
  607  subject of the record:
  608         1. Is a candidate for employment with a criminal justice
  609  agency;
  610         2. Is a defendant in a criminal prosecution;
  611         3. Concurrently or subsequently petitions for relief under
  612  this section, s. 943.0583, or s. 943.059;
  613         4. Is a candidate for admission to The Florida Bar;
  614         5. Is seeking to be employed or licensed by or to contract
  615  with the Department of Children and Families, the Division of
  616  Vocational Rehabilitation within the Department of Education,
  617  the Agency for Health Care Administration, the Agency for
  618  Persons with Disabilities, the Department of Health, the
  619  Department of Elderly Affairs, or the Department of Juvenile
  620  Justice or to be employed or used by such contractor or licensee
  621  in a sensitive position having direct contact with children, the
  622  disabled, or the elderly; or
  623         6. Is seeking to be employed or licensed by the Department
  624  of Education, any district school board, any university
  625  laboratory school, any charter school, any private or parochial
  626  school, or any local governmental entity that licenses child
  627  care facilities.
  628         (b) Subject to the exceptions in paragraph (a), a person
  629  who has been granted an expunction under this section, former s.
  630  893.14, former s. 901.33, or former s. 943.058 may not be held
  631  under any provision of law of this state to commit perjury or to
  632  be otherwise liable for giving a false statement by reason of
  633  such person’s failure to recite or acknowledge an expunged
  634  criminal history record.
  635         (c) Information relating to the existence of an expunged
  636  criminal history record which is provided in accordance with
  637  paragraph (a) is confidential and exempt from the provisions of
  638  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  639  except that the department shall disclose the existence of a
  640  criminal history record ordered expunged to the entities set
  641  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  642  respective licensing, access authorization, and employment
  643  purposes, and to criminal justice agencies for their respective
  644  criminal justice purposes. It is unlawful for any employee of an
  645  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  646  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  647  disclose information relating to the existence of an expunged
  648  criminal history record of a person seeking employment, access
  649  authorization, or licensure with such entity or contractor,
  650  except to the person to whom the criminal history record relates
  651  or to persons having direct responsibility for employment,
  652  access authorization, or licensure decisions. Any person who
  653  violates this paragraph commits a misdemeanor of the first
  654  degree, punishable as provided in s. 775.082 or s. 775.083.
  655         (5) EXCEPTION PROVIDED.—Notwithstanding the eligibility
  656  requirements prescribed in paragraph (1)(b) and subsection (2),
  657  the department shall issue a certificate of eligibility for
  658  expunction under this subsection to a person who is the subject
  659  of a criminal history record if that person:
  660         (a) Has obtained, and submitted to the department, on a
  661  form provided by the department, a written, certified statement
  662  from the appropriate state attorney or statewide prosecutor
  663  which states whether an information, indictment, or other
  664  charging document was not filed or was dismissed by the state
  665  attorney, or dismissed by the court, because it was found that
  666  the person acted in lawful self-defense pursuant to the
  667  provisions related to justifiable use of force in chapter 776.
  668         (b) Each petition to a court to expunge a criminal history
  669  record pursuant to this subsection is complete only when
  670  accompanied by:
  671         1.A valid certificate of eligibility for expunction issued
  672  by the department pursuant to this subsection.
  673         2.The petitioner’s sworn statement attesting that the
  674  petitioner is eligible for such an expunction to the best of his
  675  or her knowledge or belief.
  676  
  677  Any person who knowingly provides false information on such
  678  sworn statement to the court commits a felony of the third
  679  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  680  775.084.
  681         (c) This subsection does not confer any right to the
  682  expunction of a criminal history record, and any request for
  683  expunction of a criminal history record may be denied at the
  684  discretion of the court.
  685         (d) Subsections (3) and (4) shall apply to expunction
  686  ordered under this subsection.
  687         (e) The department shall, by rule adopted pursuant to
  688  chapter 120, establish procedures pertaining to the application
  689  for and issuance of certificates of eligibility for expunction
  690  under this subsection.
  691         (6)(5) STATUTORY REFERENCES.—Any reference to any other
  692  chapter, section, or subdivision of the Florida Statutes in this
  693  section constitutes a general reference under the doctrine of
  694  incorporation by reference.
  695         Section 11. This act shall take effect upon becoming a law.