11C-7.006: Amending rule to remove an obsolete form, deleting the verbiage incorporating forms, updating the effective date of forms and the website link, and clarifying language for the certification of the application. 11C-7.007: Amending rule ...

 

DEPARTMENT OF LAW ENFORCEMENT

Division of Criminal Justice Information Systems

RULE NOS.:RULE TITLES:

11C-7.006Procedures on Court-Ordered Expunctions

11C-7.007Procedures on Court-Ordered Sealings

11C-7.009Procedures on Juvenile Diversion Expunctions

11C-7.010Procedures on Early Juvenile Expunction

PURPOSE AND EFFECT: Rule 11C-7.006, F.A.C.: Amending rule to remove an obsolete form, deleting the verbiage incorporating forms, updating the effective date of forms and the website link, and clarifying language for the certification of the application.

Rule 11C-7.007, F.A.C.: Amending rule to remove an obsolete form and reference current forms.

Rule 11C-7.009, F.A.C.: Revising rule due to statutory changes, correcting website link and clarifying language for the certification of the application.

Rule 11C-7.010, F.A.C.: Revising rule to correct the website link and clarifying language for the certification of the application.

SUMMARY: Amending rules to remove an obsolete form, deleting the verbiage incorporating forms, updating the effective date of forms and the website link, providing a revision date for the Federal Bureau of Investigation (FBI) fingerprint card, and clarifying language for the certification of the application.

Rule 11C-7.006, F.A.C.: The rule change is requested to reflect changes to existing forms, reflect the correct website link, provide a revision date for the FBI fingerprint card, and clarify language related to the certification of the application.

Rule 11C-7.007, F.A.C.: The rule change is requested to reflect changes to existing forms, provide the correct website link, and include the revision date for the FBI fingerprint card.

Rule 11C-7.009, F.A.C.: The rule change is requested to be consistent with statutory language, reflect changes to existing forms, update the website link, provide a revision date for the FBI fingerprint card, and to clarify language for the certification of the application.

Rule 11C-7.010, F.A.C.: The rule change is requested to reflect the correct website link, provide a revision date for the Federal Bureau of Investigation fingerprint card, and the clarify language for the certification of the application.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 943.03(4), 943.0515(1), 943.058(2), 943.0582, 943.059(2), FS.

LAW IMPLEMENTED: 943.0515(1), 943.0582, 943.0585, 943.059, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Rachel Truxell at [phone], or [e-mail], or write to Florida Department of Law Enforcement, Criminal Justice Information Services, 2331 Phillips Road, Tallahassee, Florida 32308.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

11C-7.006 Procedures on Court-Ordered Expunctions.

(1) Prior to petitioning the court to expunge a criminal history record, the subject must apply to the Department for a certificate of eligibility for expunction. The application for the certificate of eligibility must include:

(a) A money order, cashier’s check, or certified check for $75.00 made payable to the Florida Department of Law Enforcement. This processing fee is non-refundable, regardless of the results of the certification review. A fee waiver may be granted by the Executive Director of the Department upon submission of a written request and in his determination that the waiver is in the best interests of criminal justice.

(b) A completed Application for Certification of Eligibility. The subject must complete section A of the application. The Application for Certification of Eligibility (form number FDLE 40-021, rev. October 2018 December 2009), or for Lawful Self-Defense Expunction under Section 943.0585(5), F.S. (form number FDLE 40-026, rev. May 2017 created. April 2014, effective date July 2015), both of which are hereby incorporated by reference, may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/expunge

(c) The appropriate state attorney or statewide prosecutor should may provide the required written certified statement by completing complete section B of the Application for Certification of Eligibility and have it certified.

(d) A legible set of fingerprints recorded on an FBI Applicant Fingerprint Card (FD-258, rev. 03/10). or Fingerprint form 40-024, (rev. February 2008) and incorporated here by reference. The fingerprinting must be done by a law enforcement agency. The law enforcement agency fingerprinting the subject should place the following statement in the “Reason Fingerprinted” section on the card or Fingerprint form “Application For Certification Of Eligibility For Expunction.” The subject must pay any fees required by the law enforcement agency for providing this service. If a copy of the Applicant Fingerprint Card is needed, it may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/expunge

(e) A certified copy of the disposition of the charge or charges to which the petition to expunge pertains. The subject should obtain this document from the Clerk of the Court in the appropriate jurisdiction. The subject must pay any fees required by the Clerk of the Court for providing this service.

(2) The complete application packet should be mailed or delivered to Florida Department of Law Enforcement, ATTN: Expunge/Seal Section, Post Office Box 1489, Tallahassee, Florida 32302-1489.

(3) through (4) No change.

(5) The Department will send the subject a Certificate of Eligibility (form number FDLE 40-023, 40-022, rev. July 2006 created October 2017, effective December 2017), or (form number FDLE 40-027, created October 2014, effective date July 2015 rev. October 2017), or (form number FDLE 40-030, created October 2017, effective December 2017), both of which are incorporated here by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-05634, if the specified criminal history record meets the requirements for expunction. If the specified criminal history record does not meet the requirements for expunction, the Department will send the subject a letter stating the reason for ineligibility with an explanation of appeal rights.

(6) No change.

Rulemaking Authority 943.03(4), 943.058(2) FS. Law Implemented 943.0585 FS. History–New 8-5-92, Amended 7-7-99, 8-22-00, 6-9-08, 6-3-10, 7-29-15, ____________.

 

11C-7.007 Procedures on Court-Ordered Sealings.

(1) Prior to petitioning the court to seal a criminal history record, the subject must apply to the Department for a certificate of eligibility for sealing. The application for the certificate of eligibility must include:

(a) A money order, cashier’s check, or certified check for $75.00 made payable to the Florida Department of Law Enforcement. This processing fee is non-refundable, regardless of the results of the certification review. A fee waiver may be granted by the Executive Director of the Department upon submission of a written request and in his determination that the waiver is in the best interests of criminal justice.

(b) A completed Application for Certification of Eligibility. The subject should complete section A of the application. The Application for Certification of Eligibility (form number FDLE 40-021, rev. October 2018 December 2009 and incorporated by reference) may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/expunge

(c) A legible set of fingerprints recorded on an FBI Applicant Fingerprint Card (FD-258, rev. 03/10). or Fingerprint form (40-024, rev. February 2008). The fingerprinting must be done by a law enforcement agency. The law enforcement agency fingerprinting the subject should place the following statement in the “Reason Fingerprinted” section on the card or Fingerprint form: “Application For Certification of Eligibility For Sealing.” The subject must pay any fees required by the law enforcement agency for providing this service. If a copy of the Applicant Fingerprint Card is needed, it may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/expunge

(d) A certified copy of the disposition of the charge or charges to which the petition to seal pertains. The subject should obtain this document from the Clerk of the Court in the appropriate jurisdiction. The subject must pay any fees required by the Clerk of the Court for providing this service.

(2) The complete application packet should be mailed or delivered to Florida Department of Law Enforcement, ATTN: Expunge/Seal Section, Post Office Box 1489, Tallahassee, Florida 32302-1489.

(3) through (4) No change.

(5) The Department will send the subject a Certificate of Eligibility (form number FDLE 40-022, rev. October 2017 July 2006), or (form number FDLE 40-029, created October 2017, effective December 2017), if the specified criminal history record meets the requirements for sealing. If the specified criminal history record does not meet the requirements for sealing, the Department will send the subject a letter stating the reason for ineligibility with an explanation of appeal rights.

(6) No change.

Rulemaking Authority 943.03(4), 943.059(2) FS. Law Implemented 943.059 FS. History–New 8-5-92, Amended 7-7-99, 8-22-00, 6-9-08, 6-3-10, _____________.

 

11C-7.009 Procedures on Juvenile Diversion Expunctions.

(1) A minor who has successfully completed a prearrest or postarrest diversion program as authorized by Section 985.3065985.125, F.S., which program satisfies the requirements found at Section 943.0582, F.S., may apply directly to the Department for expunction of the minor’s juvenile nonjudicial arrest record. The application for the Juvenile Diversion Expunction must include:

(a) A completed Application for Juvenile Diversion Expunction. The subject must complete section A of the application. The Application for Juvenile Diversion Expunction, form number FDLE 40-025 (rev. 10/2018 July 2013, effective 5/2014), hereby incorporated by reference https://web.fdle.state.fl.us/intakeweb/formrenderer.xhtml?pageId=se http://www.fdle.state.fl.us/cms/Seal-and-Expunge-Process/Documents/JuvenileDiversionExpunctionApplication(Final2013).aspx , may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/expunge .

(b) The state attorney may provide the required written certification statement by completing should complete section B of the Application for Juvenile Diversion Expunction and have it certified.

(c) A legible set of fingerprints recorded on an FBI Applicant Fingerprint Card (FD-258) (rev. 03/10). The fingerprinting must be done by a law enforcement agency. The law enforcement agency fingerprinting the subject should place the following statement in the “Reason Fingerprinted” section on the card or Fingerprint form: “Application For Juvenile Diversion Expunction.” The subject must pay any fees required by the law enforcement agency for providing this service. If a copy of the Applicant Fingerprint Card is needed, it may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/expunge

(2) The complete application packet should be mailed or delivered to Florida Department of Law Enforcement, ATTN: Expunge/Seal Section, Post Office Box 1489, Tallahassee, Florida 32302-1489.

(3) If the application packet is incomplete the Department will not process it. The incomplete packet, along with the processing fee, will be returned to the subject with an indication as to the reason for non-acceptance. It will be the subject’s responsibility to obtain the missing information and return the complete packet to the Department.

(4) No change.

(5) The Department will expunge the minor subject’s juvenile diversion arrest record if the application and the specified criminal history record meet the requirements for Juvenile Diversion Expunction, and will notify the minor subject or his or her parent or legal guardian and the arresting agency of this action. Such expunction shall be as defined at Section 943.0582(2), F.S. If the application and the specified criminal history record do not meet the requirements for Juvenile Diversion Expunction, the Department will send the subject or his or her parent or legal guardian a letter stating the reason for ineligibility with an explanation of appeal rights.

(6) No change.

Rulemaking Authority 943.0582 FS. Law Implemented 943.0582 FS. History–New 11-5-02, Amended 6-9-08, 5-29-14, 7-20-17, ___________.

 

11C-7.010 Procedures on Early Juvenile Expunction.

(1) A person who has not been committed to a juvenile correctional facility or juvenile prison under Chapter 985, F.S., may apply directly to the Department to have his or her juvenile criminal history record expunged, provided he or she is at least 18 years of age but less than 21 years of age. To be eligible for this form of expunction, the applicant must not have been charged by the state attorney with or found to have committed any criminal offense within the 5-year period before the application date. The application for the Early Juvenile Expunction must include:

(a) A money order, cashier’s check, or certified check for $75.00 made payable to the Florida Department of Law Enforcement. This processing fee is non-refundable, regardless of whether the application for expunction is granted. A fee waiver may be granted by the Executive Director of the Department, upon submission of a written request, and in his or her determination that the waiver is in the best interests of criminal justice.

(b) A completed Application for Early Juvenile Expunction. The subject must complete section A of the application. The Application for Early Juvenile Expunction, form number FDLE 40-028, hereby incorporated by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-08462, may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/cms/Seal-and-Expunge-Process/Seal-and-Expunge-Home

(c) The state attorney for the circuit having jurisdiction over the arrest should may provide the required written certified statement by completing complete section B of the Application for  Early Juvenile Expunction and have it certified.

(d) A legible set of fingerprints recorded on an FBI Applicant Fingerprint Card (FD-258, rev. 03/10). The fingerprinting must be done by a law enforcement agency. The law enforcement agency fingerprinting the subject should place the following statement in the “Reason Fingerprinted” section on the card or Fingerprint form: “Application For Early Juvenile Expunction.” The subject must pay any fees required by the law enforcement agency for providing this service. If a copy of the Applicant Fingerprint Card is needed, it may be obtained from:

1. The Clerk of the Court, or

2. Florida Department of Law Enforcement

Expunge Section

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

Website: http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home.aspx http://www.fdle.state.fl.us/cms/Seal-and-Expunge-Process/Seal-and-Expunge-Home

(e) A sworn, written statement from the applicant that he or she is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the application pertains, and that he or she has not been charged with or found to have committed a criminal offense, in any jurisdiction of the state or within the United States, within the 5-year period before the application date.

(2) The complete application packet should be mailed or delivered, within the time frame prescribed by Section 943.0515(1)(b)2., F.S., to Florida Department of Law Enforcement, ATTN: Expunge/Seal Section, Post Office Box 1489, Tallahassee, Florida 32302-1489.

(3) through (4) No change.

(5) The Department will expunge the subject’s juvenile criminal history record if the application and the specified criminal history record meet the requirements for Early Juvenile Expunction, and will notify the subject or his or her parent or legal guardian. If the application and the specified criminal history record do not meet the requirements for Early Juvenile Expunction, the Department will send the subject a letter stating the reason for ineligibility with an explanation of appeal rights.

Rulemaking Authority 943.0515(1) FS. Law Implemented 943.0515(1) FS. History–New 7-20-17, Amended ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Director Charles Schaeffer

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 26, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 30, 2018