Florida Senate - 2013 CS for CS for SB 1644
By the Committees on Judiciary; and Children, Families, and
Elder Affairs; and Senator Flores
590-03880-13 20131644c2
1 A bill to be entitled
2 An act relating to victims of human trafficking;
3 amending s. 90.803, F.S.; revising the mental,
4 emotional, or developmental age of a child victim
5 whose out-of-court statement describing specified
6 criminal acts is admissible in evidence in certain
7 instances; creating s. 943.0583, F.S.; providing
8 definitions; providing for the expungement of the
9 criminal history record of a victim of human
10 trafficking; designating what offenses may be
11 expunged; providing exceptions; providing that an
12 expunged conviction is deemed to have been vacated due
13 to a substantive defect in the underlying criminal
14 proceedings; providing for a period in which such
15 expungement must be sought; providing that official
16 documentation of the victim’s status as a human
17 trafficking victim creates a presumption; providing a
18 standard of proof absent official documentation;
19 providing requirements for petitions; providing
20 criminal penalties for false statements on such
21 petitions; providing for parties to and service of
22 such petitions; providing for electronic appearances
23 of petitioners and attorneys at hearings; providing
24 for orders of relief; providing for physical
25 destruction of certain records; authorizing a person
26 whose records are expunged to lawfully deny or fail to
27 acknowledge the arrests covered by the expunged
28 record; providing that such lawful denial does not
29 constitute perjury or subject the person to liability;
30 providing that cross-references are considered general
31 reference for the purpose of incorporation by
32 reference; amending ss. 943.0582, 943.0585, 943.059,
33 and 961.06, F.S.; conforming provisions to changes
34 made by the act; providing an effective date.
35
36 WHEREAS, victims of trafficking may be forced to engage in
37 a variety of illegal acts beyond prostitution, and
38 WHEREAS, trafficked persons are not always recognized as
39 victims by the police and prosecutors and are thus pressured
40 into pleading guilty or do not understand the consequences of
41 criminal charges, and
42 WHEREAS, all persons with criminal records reflecting their
43 involvement in the sex industry may face barriers to employment
44 and other life opportunities long after they escape from their
45 trafficking situations, and
46 WHEREAS, there is a genuine need for a workable solution to
47 alleviate the impact of the collateral consequences of
48 conviction for victims of human trafficking, NOW, THEREFORE,
49
50 Be It Enacted by the Legislature of the State of Florida:
51
52 Section 1. Paragraph (a) of subsection (23) of section
53 90.803, Florida Statutes, is amended to read:
54 90.803 Hearsay exceptions; availability of declarant
55 immaterial.—The provision of s. 90.802 to the contrary
56 notwithstanding, the following are not inadmissible as evidence,
57 even though the declarant is available as a witness:
58 (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.—
59 (a) Unless the source of information or the method or
60 circumstances by which the statement is reported indicates a
61 lack of trustworthiness, an out-of-court statement made by a
62 child victim with a physical, mental, emotional, or
63 developmental age of 16 11 or less describing any act of child
64 abuse or neglect, any act of sexual abuse against a child, the
65 offense of child abuse, the offense of aggravated child abuse,
66 or any offense involving an unlawful sexual act, contact,
67 intrusion, or penetration performed in the presence of, with,
68 by, or on the declarant child, not otherwise admissible, is
69 admissible in evidence in any civil or criminal proceeding if:
70 1. The court finds in a hearing conducted outside the
71 presence of the jury that the time, content, and circumstances
72 of the statement provide sufficient safeguards of reliability.
73 In making its determination, the court may consider the mental
74 and physical age and maturity of the child, the nature and
75 duration of the abuse or offense, the relationship of the child
76 to the offender, the reliability of the assertion, the
77 reliability of the child victim, and any other factor deemed
78 appropriate; and
79 2. The child either:
80 a. Testifies; or
81 b. Is unavailable as a witness, provided that there is
82 other corroborative evidence of the abuse or offense.
83 Unavailability shall include a finding by the court that the
84 child’s participation in the trial or proceeding would result in
85 a substantial likelihood of severe emotional or mental harm, in
86 addition to findings pursuant to s. 90.804(1).
87 Section 2. Section 943.0583, Florida Statutes, is created
88 to read:
89 943.0583 Human trafficking victim expunction.—
90 (1) As used in this section, the term:
91 (a) “Human trafficking” has the same meaning as provided in
92 s. 787.06.
93 (b) “Official documentation” means any documentation issued
94 by a federal, state, or local agency tending to show a person’s
95 status as a victim of human trafficking.
96 (c) “Victim of human trafficking” means a person subjected
97 to coercion, as defined in s. 787.06, for the purpose of being
98 used in human trafficking, a child under 18 years of age
99 subjected to human trafficking, or an individual subjected to
100 human trafficking as defined by federal law.
101 (2) Notwithstanding any other provision of law, the court
102 of original jurisdiction over the crime sought to be expunged
103 may order a criminal justice agency to expunge the criminal
104 history record of a victim of human trafficking who complies
105 with the requirements of this section. This section does not
106 confer any right to the expunction of any criminal history
107 record, and any request for expunction of a criminal history
108 record may be denied at the sole discretion of the court.
109 (3) A person who is a victim of human trafficking may
110 petition for the expunction of any conviction for an offense
111 committed while he or she was a victim of human trafficking,
112 which offense was committed as a part of the human trafficking
113 scheme of which he or she was a victim or at the direction of an
114 operator of the scheme, including, but not limited to,
115 violations under chapters 796 and 847. However, this section
116 does not apply to any offense listed in s. 775.084(1)(b)1.
117 Determination of the petition under this section should be by a
118 preponderance of the evidence. A conviction expunged under this
119 section is deemed to have been vacated due to a substantive
120 defect in the underlying criminal proceedings.
121 (4) A petition under this section must be initiated by the
122 petitioner with due diligence after the victim has ceased to be
123 a victim of human trafficking or has sought services for victims
124 of human trafficking, subject to reasonable concerns for the
125 safety of the victim, family members of the victim, or other
126 victims of human trafficking that may be jeopardized by the
127 bringing of such petition or for other reasons consistent with
128 the purpose of this section.
129 (5) Official documentation of the victim’s status creates a
130 presumption that his or her participation in the offense was a
131 result of having been a victim of human trafficking but is not
132 required for granting a petition under this section. A
133 determination made without such official documentation must be
134 made by a showing of clear and convincing evidence.
135 (6) Each petition to a court to expunge a criminal history
136 record is complete only when accompanied by:
137 (a) The petitioner’s sworn statement attesting that the
138 petitioner is eligible for such an expunction to the best of his
139 or her knowledge or belief and does not have any other petition
140 to expunge or any petition to seal pending before any court.
141 (b) Official documentation of the petitioner’s status as a
142 victim of human trafficking, if any exists.
143
144 Any person who knowingly provides false information on such
145 sworn statement to the court commits a felony of the third
146 degree, punishable as provided in s. 775.082, s. 775.083, or s.
147 775.084.
148 (7)(a) In judicial proceedings under this section, a copy
149 of the completed petition to expunge shall be served upon the
150 appropriate state attorney or the statewide prosecutor and upon
151 the arresting agency; however, it is not necessary to make any
152 agency other than the state a party. The appropriate state
153 attorney or the statewide prosecutor and the arresting agency
154 may respond to the court regarding the completed petition to
155 expunge.
156 (b) The petitioner or the petitioner’s attorney may appear
157 at any hearing under this section telephonically, via video
158 conference, or by other electronic means.
159 (c) If relief is granted by the court, the clerk of the
160 court shall certify copies of the order to the appropriate state
161 attorney or the statewide prosecutor and the arresting agency.
162 The arresting agency is responsible for forwarding the order to
163 any other agency listed in the court order to which the
164 arresting agency disseminated the criminal history record
165 information to which the order pertains. The department shall
166 forward the order to expunge to the Federal Bureau of
167 Investigation. The clerk of the court shall certify a copy of
168 the order to any other agency that the records of the court
169 reflect has received the criminal history record from the court.
170 (8)(a) Any criminal history record of a minor or an adult
171 that is ordered expunged by the court of original jurisdiction
172 over the crime sought to be expunged pursuant to this section
173 must be physically destroyed or obliterated by any criminal
174 justice agency having custody of such record, except that any
175 criminal history record in the custody of the department must be
176 retained in all cases.
177 (b) The person who is the subject of a criminal history
178 record that is expunged under this section may lawfully deny or
179 fail to acknowledge the arrests covered by the expunged record.
180 (c) A person who has been granted an expunction under this
181 section may not be held under any law of this state to commit
182 perjury or to be otherwise liable for giving a false statement
183 by reason of such person’s failure to recite or acknowledge an
184 expunged criminal history record.
185 (9) Any reference to any other chapter, section, or
186 subdivision of the Florida Statutes in this section constitutes
187 a general reference under the doctrine of incorporation by
188 reference.
189 Section 3. Subsection (6) of section 943.0582, Florida
190 Statutes, is amended to read:
191 943.0582 Prearrest, postarrest, or teen court diversion
192 program expunction.—
193 (6) Expunction or sealing granted under this section does
194 not prevent the minor who receives such relief from petitioning
195 for the expunction or sealing of a later criminal history record
196 as provided for in ss. 943.0583, 943.0585, and 943.059, if the
197 minor is otherwise eligible under those sections.
198 Section 4. Paragraph (a) of subsection (4) of section
199 943.0585, Florida Statutes, is amended to read:
200 943.0585 Court-ordered expunction of criminal history
201 records.—The courts of this state have jurisdiction over their
202 own procedures, including the maintenance, expunction, and
203 correction of judicial records containing criminal history
204 information to the extent such procedures are not inconsistent
205 with the conditions, responsibilities, and duties established by
206 this section. Any court of competent jurisdiction may order a
207 criminal justice agency to expunge the criminal history record
208 of a minor or an adult who complies with the requirements of
209 this section. The court shall not order a criminal justice
210 agency to expunge a criminal history record until the person
211 seeking to expunge a criminal history record has applied for and
212 received a certificate of eligibility for expunction pursuant to
213 subsection (2). A criminal history record that relates to a
214 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
215 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
216 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
217 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
218 any violation specified as a predicate offense for registration
219 as a sexual predator pursuant to s. 775.21, without regard to
220 whether that offense alone is sufficient to require such
221 registration, or for registration as a sexual offender pursuant
222 to s. 943.0435, may not be expunged, without regard to whether
223 adjudication was withheld, if the defendant was found guilty of
224 or pled guilty or nolo contendere to the offense, or if the
225 defendant, as a minor, was found to have committed, or pled
226 guilty or nolo contendere to committing, the offense as a
227 delinquent act. The court may only order expunction of a
228 criminal history record pertaining to one arrest or one incident
229 of alleged criminal activity, except as provided in this
230 section. The court may, at its sole discretion, order the
231 expunction of a criminal history record pertaining to more than
232 one arrest if the additional arrests directly relate to the
233 original arrest. If the court intends to order the expunction of
234 records pertaining to such additional arrests, such intent must
235 be specified in the order. A criminal justice agency may not
236 expunge any record pertaining to such additional arrests if the
237 order to expunge does not articulate the intention of the court
238 to expunge a record pertaining to more than one arrest. This
239 section does not prevent the court from ordering the expunction
240 of only a portion of a criminal history record pertaining to one
241 arrest or one incident of alleged criminal activity.
242 Notwithstanding any law to the contrary, a criminal justice
243 agency may comply with laws, court orders, and official requests
244 of other jurisdictions relating to expunction, correction, or
245 confidential handling of criminal history records or information
246 derived therefrom. This section does not confer any right to the
247 expunction of any criminal history record, and any request for
248 expunction of a criminal history record may be denied at the
249 sole discretion of the court.
250 (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
251 criminal history record of a minor or an adult which is ordered
252 expunged by a court of competent jurisdiction pursuant to this
253 section must be physically destroyed or obliterated by any
254 criminal justice agency having custody of such record; except
255 that any criminal history record in the custody of the
256 department must be retained in all cases. A criminal history
257 record ordered expunged that is retained by the department is
258 confidential and exempt from the provisions of s. 119.07(1) and
259 s. 24(a), Art. I of the State Constitution and not available to
260 any person or entity except upon order of a court of competent
261 jurisdiction. A criminal justice agency may retain a notation
262 indicating compliance with an order to expunge.
263 (a) The person who is the subject of a criminal history
264 record that is expunged under this section or under other
265 provisions of law, including former s. 893.14, former s. 901.33,
266 and former s. 943.058, may lawfully deny or fail to acknowledge
267 the arrests covered by the expunged record, except when the
268 subject of the record:
269 1. Is a candidate for employment with a criminal justice
270 agency;
271 2. Is a defendant in a criminal prosecution;
272 3. Concurrently or subsequently petitions for relief under
273 this section, s. 943.0583, or s. 943.059;
274 4. Is a candidate for admission to The Florida Bar;
275 5. Is seeking to be employed or licensed by or to contract
276 with the Department of Children and Family Services, the
277 Division of Vocational Rehabilitation within the Department of
278 Education, the Agency for Health Care Administration, the Agency
279 for Persons with Disabilities, the Department of Health, the
280 Department of Elderly Affairs, or the Department of Juvenile
281 Justice or to be employed or used by such contractor or licensee
282 in a sensitive position having direct contact with children, the
283 disabled, or the elderly;
284 6. Is seeking to be employed or licensed by the Department
285 of Education, any district school board, any university
286 laboratory school, any charter school, any private or parochial
287 school, or any local governmental entity that licenses child
288 care facilities; or
289 7. Is seeking authorization from a seaport listed in s.
290 311.09 for employment within or access to one or more of such
291 seaports pursuant to s. 311.12.
292 Section 5. Paragraph (a) of subsection (4) of section
293 943.059, Florida Statutes, is amended to read:
294 943.059 Court-ordered sealing of criminal history records.
295 The courts of this state shall continue to have jurisdiction
296 over their own procedures, including the maintenance, sealing,
297 and correction of judicial records containing criminal history
298 information to the extent such procedures are not inconsistent
299 with the conditions, responsibilities, and duties established by
300 this section. Any court of competent jurisdiction may order a
301 criminal justice agency to seal the criminal history record of a
302 minor or an adult who complies with the requirements of this
303 section. The court shall not order a criminal justice agency to
304 seal a criminal history record until the person seeking to seal
305 a criminal history record has applied for and received a
306 certificate of eligibility for sealing pursuant to subsection
307 (2). A criminal history record that relates to a violation of s.
308 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
309 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
310 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
311 916.1075, a violation enumerated in s. 907.041, or any violation
312 specified as a predicate offense for registration as a sexual
313 predator pursuant to s. 775.21, without regard to whether that
314 offense alone is sufficient to require such registration, or for
315 registration as a sexual offender pursuant to s. 943.0435, may
316 not be sealed, without regard to whether adjudication was
317 withheld, if the defendant was found guilty of or pled guilty or
318 nolo contendere to the offense, or if the defendant, as a minor,
319 was found to have committed or pled guilty or nolo contendere to
320 committing the offense as a delinquent act. The court may only
321 order sealing of a criminal history record pertaining to one
322 arrest or one incident of alleged criminal activity, except as
323 provided in this section. The court may, at its sole discretion,
324 order the sealing of a criminal history record pertaining to
325 more than one arrest if the additional arrests directly relate
326 to the original arrest. If the court intends to order the
327 sealing of records pertaining to such additional arrests, such
328 intent must be specified in the order. A criminal justice agency
329 may not seal any record pertaining to such additional arrests if
330 the order to seal does not articulate the intention of the court
331 to seal records pertaining to more than one arrest. This section
332 does not prevent the court from ordering the sealing of only a
333 portion of a criminal history record pertaining to one arrest or
334 one incident of alleged criminal activity. Notwithstanding any
335 law to the contrary, a criminal justice agency may comply with
336 laws, court orders, and official requests of other jurisdictions
337 relating to sealing, correction, or confidential handling of
338 criminal history records or information derived therefrom. This
339 section does not confer any right to the sealing of any criminal
340 history record, and any request for sealing a criminal history
341 record may be denied at the sole discretion of the court.
342 (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
343 history record of a minor or an adult which is ordered sealed by
344 a court of competent jurisdiction pursuant to this section is
345 confidential and exempt from the provisions of s. 119.07(1) and
346 s. 24(a), Art. I of the State Constitution and is available only
347 to the person who is the subject of the record, to the subject’s
348 attorney, to criminal justice agencies for their respective
349 criminal justice purposes, which include conducting a criminal
350 history background check for approval of firearms purchases or
351 transfers as authorized by state or federal law, to judges in
352 the state courts system for the purpose of assisting them in
353 their case-related decisionmaking responsibilities, as set forth
354 in s. 943.053(5), or to those entities set forth in
355 subparagraphs (a)1., 4., 5., 6., and 8. for their respective
356 licensing, access authorization, and employment purposes.
357 (a) The subject of a criminal history record sealed under
358 this section or under other provisions of law, including former
359 s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
360 deny or fail to acknowledge the arrests covered by the sealed
361 record, except when the subject of the record:
362 1. Is a candidate for employment with a criminal justice
363 agency;
364 2. Is a defendant in a criminal prosecution;
365 3. Concurrently or subsequently petitions for relief under
366 this section, s. 943.0583, or s. 943.0585;
367 4. Is a candidate for admission to The Florida Bar;
368 5. Is seeking to be employed or licensed by or to contract
369 with the Department of Children and Family Services, the
370 Division of Vocational Rehabilitation within the Department of
371 Education, the Agency for Health Care Administration, the Agency
372 for Persons with Disabilities, the Department of Health, the
373 Department of Elderly Affairs, or the Department of Juvenile
374 Justice or to be employed or used by such contractor or licensee
375 in a sensitive position having direct contact with children, the
376 disabled, or the elderly;
377 6. Is seeking to be employed or licensed by the Department
378 of Education, any district school board, any university
379 laboratory school, any charter school, any private or parochial
380 school, or any local governmental entity that licenses child
381 care facilities;
382 7. Is attempting to purchase a firearm from a licensed
383 importer, licensed manufacturer, or licensed dealer and is
384 subject to a criminal history check under state or federal law;
385 or
386 8. Is seeking authorization from a Florida seaport
387 identified in s. 311.09 for employment within or access to one
388 or more of such seaports pursuant to s. 311.12.
389 Section 6. Paragraph (e) of subsection (1) of section
390 961.06, Florida Statutes, is amended to read:
391 961.06 Compensation for wrongful incarceration.—
392 (1) Except as otherwise provided in this act and subject to
393 the limitations and procedures prescribed in this section, a
394 person who is found to be entitled to compensation under the
395 provisions of this act is entitled to:
396 (e) Notwithstanding any provision to the contrary in s.
397 943.0583 or s. 943.0585, immediate administrative expunction of
398 the person’s criminal record resulting from his or her wrongful
399 arrest, wrongful conviction, and wrongful incarceration. The
400 Department of Legal Affairs and the Department of Law
401 Enforcement shall, upon a determination that a claimant is
402 entitled to compensation, immediately take all action necessary
403 to administratively expunge the claimant’s criminal record
404 arising from his or her wrongful arrest, wrongful conviction,
405 and wrongful incarceration. All fees for this process shall be
406 waived.
407
408 The total compensation awarded under paragraphs (a), (c), and
409 (d) may not exceed $2 million. No further award for attorney’s
410 fees, lobbying fees, costs, or other similar expenses shall be
411 made by the state.
412 Section 7. This act shall take effect July 1, 2013.