Amendments to Florida Rules

Full title: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.133, 3.692, 3.986…

Court: Supreme Court of Florida

Date published: Jun 16, 1994

639 So. 2d 15 (Fla. 1994)

Opinion

No. 81545.

June 16, 1994.

Original Proceeding — Florida Rules of Criminal Procedure.

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, and William Pierce White, III, Chair, Crim. Procedure Rules Committee, Jacksonville, for petitioner.

Robert A. Butterworth, Atty. Gen., and James W. Rogers, Chief, Tallahassee Bureau of Crim. Appeals, Michael P. Spellman of Douglass and Powell, and William Paul Huey of Roberts Egan, P.A., James T. Moore, Executive Director, Michael Ramage, Gen. Counsel, and John P. Booth, Asst. Gen. Counsel, Florida Dept. of Law Enforcement, Tallahassee, and Arthur I. Jacobs, Florida Pros. Attys. Ass'n, Fernandina Beach, for other interested parties.

PER CURIAM.

In our prior opinion in this case, we adopted amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.986, 3.987, and 3.989. Amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.986, and 3.989, 630 So.2d 552 (Fla. 1993). We rejected the Criminal Rules Committee's proposed amendments to rules 3.692, Petition to Seal and Expunge, and 3.989, Seal and Expunge Forms, and adopted our own amendments to those rules. These amendments were designed to ensure that the Florida Department of Law Enforcement (FDLE) received sufficient information to enable it to notify the appropriate state attorney of the existence of circumstances that would prohibit expunging or sealing of records. To this end, they provide that 1) a copy of the petition to expunge or seal be served on the prosecuting attorney, the arresting police agency, and FDLE and 2) the hearing on the petition be delayed thirty days from service of the copies. We postponed the effective date of these amendments until the Rules Committee could review them and file comments for our further consideration. 630 So.2d at 553. We have jurisdiction. Art. V, § 2(a), Fla. Const.

The Rules Committee offers two suggested changes to rules 3.692 and 3.989 as amended in our prior opinion. The first is a rewording of the sentence in rule 3.692(a) providing for a 30-day delay between the filing of a petition and the hearing. The sentence as reworded takes into consideration the fact that there may be instances in which no hearing is necessary. The second is a stylistic change to rule 3.989 that was inadvertently omitted from the Rules Committee's original petition.

We also have considered comments submitted by other interested parties but adopt only those changes suggested by the Rules Committee. The attached amendments reflect those changes.

Accordingly, rules 3.692 and 3.989 are amended as reflected in the appendix to this opinion. The new language is indicated by underscoring; deletions are indicated by strike-through type. The amendments shall become effective immediately upon the filing of this opinion.

It is so ordered.

SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

GRIMES, C.J., dissents with an opinion.

PER CURIAM.

RULE 3.692 . PETITION TO SEAL OR EXPUNGE (a) Requirements of Petition. S s s 5- 943.059 (1981) Such The up , such the completed up , and upon , and the Florida Department of Law Enforcement. Unless the state indicates that it has no objection to the requested relief, no petition may be granted until at least 30 days after service of the copies of the petition and affidavit. R r (b) State's Response; Evidence. S s such the (c) Written Order. (d) Copies of Order. Upo O such the (e) Clerk's Duties. R r such the such the , names means such the . ; S s such the . S s : 336 So.2d 93 . ; I i , the clerk shall which that subsection subdivision (f) Costs. he be the movant is Committee Note s 1984 Amendment. section division since because S s , of the RULE 3.989 . AFFIDAVIT, PETITION , AND ORDER TO EXPUNGE OR SEAL AND AFFIDAVIT FORMS (a) IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT, IN AND FOR _________________ COUNTY, FLORIDA CASE NUMBER: _______________ DIVISION ___________________ STATE OF FLORIDA ) In the Circuit Court of the Judicial Circuit, in and for County, Florida Case No.: Division State of Florida ) . /Petitioner STATE OF FLORIDA COUNTY OF State of Florida County of (name of defendant/petitioner), D d petitioner and or : I have never been adjudicated guilty of a criminal offense or a comparable ordinance violation and I have frankly discussed this with my counsel in depth and he has explained to me the meaning of all of the terms in this Affidavit. 1. I fully understand the meaning of all of the terms of this affidavit. 2. I have never been adjudicated guilty of a criminal offense or a comparable ordinance violation. 1. 3. That _______ (arresting agency), 4. I am eligible for the relief requested, to the best of my knowledge and belief, and do not have any other petition to expunge or seal pending before any court. 2. 5. That 3. 6. expungement expunction P p That m M at least ten ( ) ; ; or an indictment or information filed against me was dismissed by the prosecutor or the court. Defendant/ , or other person authorized to administer an oath Printed, typed, or stamped commissioned name of Notary Public Personally known ________ or produced identification ________ Type of identification produced ________ C c E e (b) Order to Expunge. IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT, IN AND FOR _____________________ COUNTY, FLORIDA CASE NUMBER: _______________ DIVISION ________________________ In the Circuit Court of the Judicial Circuit, in and for County, Florida Case Number: Division State of Florida, ) ) Plaintiff, ) ) v. ) ) ) ) ) Defendant/Petitioner ) ) FLORIDA STATUTE SECTION 5, FLORIDA STATUTES FRCP FLORIDA RULE OF CRIMINAL PROCEDURE the Defendant's a P p E e Defendant's petitioner's C c the court the following: That t T Defendant petitioner That t T Defendant petitioner P p That t T Defendant petitioner That t T ten ( ) ; Defendant petitioner w hereupon it is thereby said the P p E e C c expunged sealed Florida Statute 943.058 and FRCP Florida Rule of Criminal Procedure C c C c O o State Attorney (check one) state attorney, special prosecutor, statewide prosecutor, Florida Statute section 5, Florida Statutes, O o reference regarding Defendant petitioner Florida Statute section 5, Florida Statutes, FRCP Florida Rule of Criminal Procedure Petitioner (c) Order to Seal. IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT, IN AND FOR _____________________ COUNTY, FLORIDA CASE NUMBER: ______________ DIVISION _______________________ In the Circuit Court of the Judicial Circuit, in and for County, Florida Case No.: Division State of Florida, ) ) Plaintiff, ) ) ) ) ) Defendant/Petitioner ) ) FLORIDA STATUTE SECTION 943.059, FLORIDA STATUTES, FRCP FLORIDA RULE OF CRIMINAL PROCEDURE Defendant's petitioner's P p S s R r petitioner's (arresting agency), C c the court That t T Defendant petitioner That t T Defendant petitioner P p That t T Defendant petitioner thereby P p S s R r C c Florida Statute 943.058, and FRCP Florida Rule of Criminal Procedure C c C c O o State Attorney (check one) state attorney, special prosecutor, statewide prosecutor, Florida Statute section 943.058 9, Florida Statutes, O o reference regarding Defendant petitioner Florida Statute section 943.058 9, Florida Statutes, FRCP Florida Rule of Criminal Procedure Petitioner (d) Petition to Expunge or Seal. IN THE CIRCUIT COURT OF THE ___________ JUDICIAL CIRCUIT, IN AND FOR _____________________ COUNTY, FLORIDA CASE NUMBER: ______________ DIVISION ___________________ STATE OF FLORIDA, ) In the Circuit Court of the Judicial Circuit, in and for County, Florida Case Number: Division State of Florida, ) s . Petitioner ) COMES NOW t T Defendant petitioner, his the and H h C c Florida Statute section 5, or section 943.59 Florida Statutes, in the custody of any criminal justice agency and the official records of the court his the petitioner's would s That o O Defendant petitioner, ____(date of birth), (arresting agency), ____ (charges). That t T Defendant petitioner 3. The petitioner has not been previously adjudicated guilty of a criminal offense or a comparable ordinance violation. 3. 4. That t T Defendant petitioner this S s 943.0585, or 943.059, Florida Statutes, former section 943.058, Florida Statutes, S s , Florida Statutes, S s , Florida Statutes, or any other law, rule, or authority. 4. 5. this S s 943.059, Florida Statutes, former section 943.058, Florida Statutes, S s , Florida Statutes, S s , Florida Statutes, ten ( ) ; Defendant petitioner ; or an indictment or information filed against the petitioner who is the subject of this criminal history information was dismissed by the prosecutor or the court. Defendant petitioner , ________, this Honorable Court and any official court records reference regarding her ____ (arresting agency), (charges), up (name of prosecuting authority), (check one) ___ Spe Prosecutor, Statewide Prosecutor); , ; and C c D d ; and the Florida Department of Law Enforcement, Fla.Bar No.: s 1984 Adoption. S s P p E e S s O o S s O o E e A a O o

APPENDIX All relief sought by reason of ection 943.058, Florida Statutes, shall be by petition in writing, filed with the clerk. petition shall state the grounds on which it is based and the official records to which it is directed and shall be supported by an affidavit of the party seeking relief which affidavit shall state with particularity the statutory grounds and the facts in support of motion. A copy of the petition and affidavit shall be served on the prosecuting attorney the arresting authority Notice and hearing shall be as provided in ule 3.590(c). The tate may traverse or demur to petition and affidavit. The court may receive evidence on any issue of fact necessary to the decision of the petition. If the petition is granted the court shall enter its order in writing so stating and further setting forth the records and agencies or departments to which it is directed. n the receipt of order the clerk shall furnish a certified copy thereof to each agency or department named therein excepting the court. In regard to the official records of the court including the court file of the cause, the clerk shall: (1) emove from the official records of the court, excepting the court file, all entries and records subject to order; provided that if it shall not be practical to remove entries and records then to make certified copies thereof and thereafter expunge by appropriate original entries and records (2) eal entries and records, or certified copies thereof, together with the court file and retain the same in a non-public index subject to further order of the court (ee Johnson v. State, (Fla. 1976)) (3) n multi-defendant cases make a certified copy of the contents of the court file shall be sealed pursuant to (2). Thereafter all references to the petitioner shall be expunged from the original court file. All costs of certified copies involved herein shall be borne by the movant, unless indigent. Substantially the same as the former rule. The statutory reference in (1) was changed to cite the current statute and terminology was changed accordingly. Sub (f) of the former rule was deleted it dealt with substantive matters covered by ection 943.058 Florida Statutes (1981). Affidavit in Support of Petition. ____________ _________ __________________ ___________________ ) Plaintiff, ) ) vs. ) ) ____________________________________ ) ) Defendant ) ____________________________________ ) AFFIDAVIT _____________ I, , am the efendant/ in the above-styled cause and I do hereby swear affirm that I was arrested on the ____ day of ___________, 19__, by and I have not been adjudicated guilty of the charges stemming from that arrest or the alleged criminal activity surrounding my arrest. I have never secured a prior records expunction or sealing under any law. (For use in etitions only.) y record of arrest for this date has been sealed for 10 years or an indictment or information was not filed against me for the above criminal transaction _______________________________ Petitioner Sworn to and subscribed before me this ____ day of __________, 19__. _________________________________ NOTARY PUBLIC My ommission xpires: ________________ _____________________ ______________ __________________ __________, _____________________________ ORDER TO EXPUNGE PURSUANT TO 943.058 AND 3.692 THIS CAUSE having come on to be heard before me this date upon etition to xpunge certain records of the arrest on the ____ day of _________, 19__, by ________ (arresting agency), for ________ (charges), and the ourt having heard argument of counsel and being otherwise fully advised in the premises, hereby finds 1. he has never previously been adjudicated guilty of a criminal offense or a comparable ordinance violation. 2. he was not adjudicated guilty of charges stemming from the arrest or criminal activity to which this expunction etition pertains. 3. he has not secured a prior records expunction or sealing. 4. his record has either been sealed for at least 10 years or no indictment or information was ever filed in this case against the ; or an indictment or information filed against the defendant was dismissed by the prosecutor or the court.W ORDERED AND ADJUDGED that etition to xpunge is hereby granted. All ourt records pertaining to the above-styled case shall be in accordance with the procedures set forth in 3.692; and it is further ORDERED AND ADJUDGED that the lerk of this ourt shall forward a certified copy of this rder to the ____ ____ ____ __________ (arresting agency), and the Sheriff of ________ County, who will comply with the procedures set forth in 943.058 and appropriate regulations of the Department of Law Enforcement, and who will further forward a copy of this rder to any agency that their records reflect has received the instant criminal history record information; and it is further ORDERED AND ADJUDGED that ___________ (arresting agency) shall expunge all information concerning indicia of arrest or criminal history record information this in accordance with the procedures set forth in 943.058 and 3.692. All costs of certified copies involved herein are to be borne by the ____________. DONE AND ORDERED in Chambers at _________ County, Florida, this ________ day of __________, 19__. ______________________________ Circuit Court Judge ___________________ _________________________ _________________ __________________ v. ___________, _______________________________ ORDER TO SEAL RECORDS PURSUANT TO AND 3.692 THIS CAUSE having come on to be heard before me this date upon etition to eal ecords concerning the arrest on the ____ day of __________, 19__, by the and the ourt having heard argument of counsel and being otherwise advised in the premises, hereby finds: 1. he has never been previously adjudicated guilty of a criminal offense or comparable ordinance violation. 2. he was not adjudicated guilty of charges stemming from the arrest or criminal activity to which the instant etition pertains. 3. he has not secured a prior records expunction or sealing; whereupon it is ORDERED AND ADJUDGED that the etition to eal ecords be and the same hereby is granted. All ourt records pertaining to the above-styled case shall be sealed in accordance with the procedures set forth in 3.692; and it is further ORDERED AND ADJUDGED that the lerk of this ourt shall forward a certified copy of this rder to the ____ ____ ____ ________ (arresting agency), and the Sheriff of ________ County, who will comply with the procedures set forth in and appropriate regulations of the Department of Law Enforcement, and who will further forward a copy of this rder to any agency that their records reflect has received the instant criminal history record information; and it is further ORDERED AND ADJUDGED that _________ (arresting agency) shall seal all information concerning indicia of arrest or criminal history record information this in accordance with the procedures set forth in and 3.692. All costs of certified copies involved herein are to be borne by the ___________. DONE AND ORDERED in Chambers at ________ County, Florida, this ____ day of __________, 19__. ________________________________ Circuit Court Judge X _________________ ___________________ ______________ __________________ ) Plaintiff, ) ) v. ) ) ___________________________________, ) ) Defendant ___________________________________ ) PETITION TO EXPUNGE OR SEAL he __________, by and through undersigned attorney, petitions this onorable ourt, pursuant to Florida Rule of Criminal Procedure 3.692, and ____ 943.058 ____ to ____ expunge/seal ____ all criminal history record information concerning arrest on the ____ day of __________, 19__, by ________ (arresting agency), for ________ (charges), and as grounds therefor show: 1. n the ____ day of __________, 19__, the _________, a __________ (race/sex), whose date of birth is was arrested by and charged with 2. he has not been adjudicated guilty of any of the charges stemming from this arrest or alleged criminal activity. he has not secured a prior records expunction or sealing under ection former ection 893.14 or former ection 901.33 (To be used only when requesting expunction.) Such record has been sealed under ection former ection 893.14 or former ection 901.33 for at least 10 years or there has not been an indictment or information filed against the who is the subject of this criminal history record information WHEREFORE, the moves to ____ expunge/seal ____ any criminal history record information his/ arrest by for on the ____ day of __________, 19__. I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been served on State Attorney for the _______ Judicial Circuit, in and for ________ County, cial ____ ________ (arresting agency) ________ (Sheriff of ounty where efendant was arrested, if different) this ____ day of __________, 19__. _________________________________ Name: Address: City/State: Telephone Number: Committee Note In order to have uniformity throughout the tate, the committee proposes these forms for etition to xpunge or eal, rder to eal, and rder to xpunge and ffidavit. These also should be a great asset to counsel and an invaluable asset to the clerks and FDLE, etc., who will be receiving rders in the future. The subcommittee working on these proposed forms has contacted law enforcement agencies, clerks, etc., for their input as to these proposed forms.

OVERTON, Justice, concurring in part and dissenting in part.

I concur and dissent in accordance with my statement in Amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.987 and 3.989, 630 So.2d 552, 553 (Fla. 1993).

GRIMES, Chief Justice, dissenting.

I dissent for the reasons expressed in my dissenting opinion in Amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.986, and 3.989, 630 So.2d 552 (Fla. 1993).