The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/CS/SB 1302
INTRODUCER: Appropriations Committee; Regulated Industries Committee; and Senators Burgess and
Perry
SUBJECT: Criminal History Records
DATE: March 2, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Oxamendi Imhof RI Fav/CS
2. Kolich Harkness ACJ Recommend: Favorable
3. Kolich Sadberry AP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1302 amends section 943.0595, Florida Statutes, to expand provisions relating to the
eligibility of automatic sealing of criminal history records by providing that the court must seal
criminal history records that are eligible for automatic sealing. Currently, the Florida Department
of Law Enforcement (FDLE) is the only entity required to automatically seal certain criminal
history records under this section.
Additionally, the bill expands the process and effect of automatic sealing by directing the clerk of
court, upon the disposition of a criminal case resulting in a criminal history record eligible for
automatic sealing, to seal the criminal history record. Currently, the clerk of court transmits
certified copies of such dispositions to the FDLE, and the FDLE seals the criminal history
record.
The bill provides that the court may disclose a record it has automatically sealed in the same
manner as a record sealed pursuant to section 943.059, Florida Statutes, relating to court ordered
sealing.
The bill may have an indeterminate negative fiscal impact on the clerks of court and the courts.
See Section V. Fiscal Impact Statement.
The bill takes effect July 1, 2022.
REVISED: BILL: CS/CS/SB 1302 Page 2
II. Present Situation:
Sealing of Criminal History Records
A criminal history record is any nonjudicial record maintained by a criminal justice agency
1
containing criminal history information.
2
Criminal history information is information collected
by criminal justice agencies on persons, which consists of identifiable descriptions and notations
of arrests, detentions, indictments, information, or other formal criminal charges and disposition
thereof.
3
A criminal history record of an adult is generally a public record unless sealed or expunged.
4
The
“sealing of a criminal history record” means the preservation of a record under such
circumstances that it is secure and inaccessible to any person not having a legal right of access to
the record or the information contained and preserved therein.
5
Automatic Sealing of Criminal History Record
The FDLE must automatically seal a criminal history record that does not result from an
indictment, information, or other charging document for a forcible felony
6
or for other specified
offenses,
7
if:
An indictment, information, or other charging document was not filed or issued in the case
giving rise to the criminal history record;
An indictment, information, or other charging document was filed in the case giving rise to
the criminal history record, but was dismissed or nolle prosequi by the state attorney or
statewide prosecutor or was dismissed by a court of competent jurisdiction;
8
A not guilty verdict was rendered by a judge or jury;
9
or
1
Section 943.045(11), F.S., provides that “criminal justice agency” means: a court; the FDLE; the Department of Juvenile
Justice; the protective investigations component of the Department of Children and Families, which investigates the crimes of
abuse and neglect; any other governmental agency or subunit thereof that performs the administration of criminal justice
pursuant to a statute or rule of court and that allocates a substantial part of its annual budget to the administration of criminal
justice; or the investigations component of the Department of Financial Services which investigates the crimes of fraud and
official misconduct in all public assistance given to residents of this state or provided to others by this state.
2
Section 943.045(6), F.S.
3
Section 943.045(5), F.S. The term does not include identification information, such as biometric records, if the information
does not indicate involvement of the person in the criminal justice system.
4
Section 943.045(16), F.S. The “expunction of a criminal history record” means the court-ordered physical destruction or
obliteration of a record or portion of a record by any criminal justice agency having custody thereof, or as prescribed by the
court issuing the order. Criminal history records in the custody of the department must be retained in all cases for purposes of
evaluating subsequent requests by the subject of the record for sealing or expunction, or for purposes of recreating the record
in the event an order to expunge is vacated by a court of competent jurisdiction
5
Section 943.045(19), F.S.
6
Section 776.08, F.S., provides that a “forcible felony” means treason; murder; manslaughter; sexual battery; carjacking;
home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking;
aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which
involves the use or threat of physical force or violence against any individual.
7
Specified offenses include certain sexual offenses provided in s. 943.0435(1)(h)1.a.(I), F.S.
8
Section 943.0595(2)(a)2., F.S., provides a person is not eligible for automatic sealing if the dismissal was pursuant to
ss. 916.145 or 985.19, F.S., relating to adjudication of incompetency to proceed.
9
Section 943.059(2)(a)3., F.S., provides a person is not eligible for automatic sealing under this section if the defendant was
found not guilty by reason of insanity. BILL: CS/CS/SB 1302 Page 3
A judgment of acquittal was rendered by a judge.
10
There is no limitation on the number of times a person may obtain an automatic sealing for an
eligible criminal history record.
11
The clerk of court must transmit a certified copy of the
disposition of the criminal history record to the FDLE, which must seal the record. The
automatic sealing of such records does not require sealing by the court or other criminal justice
agencies, or that such record be surrendered to the court, and such record must continue to be
maintained by the department and other criminal justice agencies.
12
Records automatically sealed by the FDLE have the same effect, and the department may
disclose such record in the same manner as a record ordered sealed by the court under s. 943.059,
F.S.
13
Court Ordered Sealing
A person seeking the court ordered sealing of a record must first obtain a certificate of eligibility
from the FDLE, and file a petition with the court for an order to seal his or her criminal history
record.
14
The FDLE must issue a certificate of eligibility if the person meets the statutory
eligibility requirements,
15
submits a certified copy of the disposition of charge to which the
petition pertains, and remits a $75 processing fee to the FDLE.
16
The court, at its sole discretion, may deny a petition to seal a criminal history record.
17
If the
court grants the petition, the clerk of court must certify copies of the order to the appropriate
state attorney, statewide prosecutor and arresting agency, and any other agency that the records
of the court reflect has received the criminal history record from the court.
18
A criminal history record that is ordered sealed, is confidential and exempt from Florida’s public
records laws.
19
The following persons and entities may access a sealed criminal history record:
The subject of the record;
His or her attorney;
10
Section 943.0595(2), F.S.
11
Section 943.0595(2)(b), F.S.
12
Section 943.0595(3), F.S.
13
Section 943.0595(3)(c), F.S.
14
Section 943.059, F.S.
15
Section 943.059(1), F.S., provides that a person is eligible to petition a court to seal a criminal history record when: The
criminal history record is not ineligible for court-ordered sealing under s. 943.0584, F.S; the person has never, before the date
the application for a certificate of eligibility is filed, been adjudicated guilty in this state of a criminal offense or been
adjudicated delinquent in this state for committing any felony or any of the specified misdemeanor offenses, unless the record
of such adjudication for delinquency has been expunged pursuant to s. 943.0515, F.S.; the person has not been adjudicated
guilty or delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition
to seal pertains; the person is no longer under court supervision for the arrest or alleged criminal activity to which the petition
to seal pertains; or the person has never secured a prior sealing or expunction of a criminal history record under ss. 943.059
or 943.0585, F.S.
16
Section 943.059(2), F.S.
17
Section 943.059(5), F.S.
18
Section 943.059(5), F.S. The arresting agency is responsible for forwarding the order to any other agency to which the
arresting agency disseminated the criminal history record information. The FDLE must forward the order to seal to the
Federal Bureau of investigation.
19
Sections 943.059(6) and 119.07(1), F.S.; Art. I, s. 24(a), Fla. Const. BILL: CS/CS/SB 1302 Page 4
Criminal justice agencies for criminal justice purposes, which include conducting a criminal
history background check for approval of firearms purchases or transfers;
Judges in the state courts system for assisting in their case-related decision-making
responsibilities; and
Certain enumerated entities
20
for licensing, access authorization, and employment purposes.
21
If a criminal history record is sealed, the subject of the record may lawfully deny or fail to
acknowledge the arrests covered by the sealed record, with exceptions for certain state
employment positions, professional licensing purposes, purchasing a firearm, applying for a
concealed weapons permit, seeking expunction, or if the subject is a defendant in a criminal
prosecution.
22
III. Effect of Proposed Changes:
The bill amends s. 943.0595, F.S., to expand provisions relating to the eligibility of automatic
sealing of criminal history records by providing that the court must seal criminal history records
eligible for automatic sealing.
Additionally, the bill expands the process and effect of automatic sealing by directing the clerk of
court, upon the disposition of a criminal case resulting in a criminal history record eligible for
automatic sealing, to seal the criminal history record.
The bill provides that the court may disclose a record it has automatically sealed in the same
manner, as a record sealed pursuant to s. 943.059, F.S., relating to court ordered sealing.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
20
Enumerated entities include criminal justice agencies, The Florida Bar, Department of Children and Families, the Division
of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for
Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, Department of Juvenile Justice, the
Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial
school, a local governmental entity that licenses child care facilities, the Division of Insurance Agent and Agency Services
within the Department of Financial Services, and the Bureau of License Issuance of the Division of Licensing within the
Department of Agriculture and Consumer Services.
21
Section 943.059(6), F.S.
22
Id. BILL: CS/CS/SB 1302 Page 5
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill may have an indeterminate negative fiscal impact on the clerks of court and the
courts. The bill may result in an increased workload to the clerks of court by directing
them, upon the disposition of a criminal case resulting in a criminal history record
eligible for automatic sealing, to seal the criminal history record. The bill may also result
in an increased workload to the courts by requiring that they must seal criminal history
records eligible for automatic sealing.
VI. Technical Deficiencies:
None.
VII. Related Issues:
The bill directs the court and the clerk of court to automatically seal a criminal history record
eligible for automatic sealing under s. 943.0595, F.S. The Supreme Court of Florida has held that
legislation directing the court to expunge judicial records was unconstitutional, and stated that
“the judicial department of government has the inherent power and duty to keep records of its
proceedings.” Johnson v. State, 336 So. 2d 93 (1976). The definition of “criminal history
record,” is clear that it is a nonjudicial record. It is unclear what nonjudicial record the court, or
clerk of court as extension of the court, may have in its possession.
VIII. Statutes Affected:
This bill substantially amends section 943.0595 of the Florida Statutes. BILL: CS/CS/SB 1302 Page 6
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS by Appropriations on February 28, 2022:
The committee substitute:
Removes language related to general licensing and court ordered sealing.
Amends sections relating to automatic sealing of a criminal history record to specify
that the court and clerk of court must automatically seal a criminal history record that
is eligible for automatic sealing.
CS by Regulated Industries on January 18, 2022:
The committee substitute:
Extends the requirements in the bill to license applications submitted to the
Department of Business and Professional Regulation (DBPR). The effect of the bill is
limited to boards within the DBPR. Some professions are licensed by DBPR and not
boards.
Clarifies that the DBPR or its boards or agents may not use, distribute, or disseminate
the specified criminal history information by removing an incorrect reference to
“political subdivisions.”
Expands the license review process in the bill to include all of an applicant’s criminal
history that is not exempted by the bill. The bill limited the review process to
applicants with a felony criminal history.
Removes from the bill the requirement that the DBPR or board, when it denies a
license application solely or in part on the basis of the applicant’s prior criminal
record, give the applicant written notice of the applicant’s eligibility for other licenses
or professions and the earliest date the applicant may reapply for a license.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.