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.