certain charges are ineligible when adjudication is withheld

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1 Filing # Electronically Filed 02/10/ :06:54 PM RECEIVED, 2/10/ :08:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO.: SC IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE (HUMAN TRAFFICKING EXPUNCTION) COMMENTS OF THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT The Florida Department o f Law Enf orcement (FDLE) of f ers the following comments on the proposed amendments to Florida Rules of Criminal Procedure and FDLE is by law given the responsibility to issue or deny certificates of eligibility to expunge or seal criminal history records, pursuant to Sections and , Fla. Stat. (2013). 2. Before petitioning a court for the expunction of nonjudicial records under Section , a person must apply for and receive a certificate of eligibility to expunge criminal history records from FDLE, by showing that he or she is able to meet certain requirements, the eligibility criteria specified in the statute (e.g., no convictions for any adult criminal offense, no previous Florida court orders to seal or expunge, certain charges are ineligible when adjudication is withheld even if the record has been sealed for at least 10 years, eligibility must be acknowledged in writing by the prosecuting attorney, etc.).

2 3. By and large, the assessment and determination of whether or not these statutory prerequisites have been met is a ministerial (not a discretionary) act which can be performed by FDLE, based on information in the applicant's records, in the course of issuing or denying a certificate of eligibility to expunge criminal history records. If the applicant believes FDLE's denial is erroneous, he or she can ask the court which would hear the petition to expunge to review the denial. See Rowell v. State, 700 So.2d 1242 (Fla. 2d DCA 1997). The issuance of a certificate of eligibility to expunge by FDLE does not limit the court's discretion to deny a petition to expunge under section ("any request for expunction of a criminal history record may be denied at the sole discretion of the court"), but is rather a precondition to the filing, for the court's consideration, of a petition ta expunge non-judicial criminal history records. 4. Rule 3.692, Petition to Seal or Expunge, is amended solely by including a reference to section , enacted by section 2 of chapter , and section 1 of chapter , Laws of Florida, which took effect January 1, 2014, except that criminal justice agencies, including FDLE, are not required to comply with an order to expunge a criminal history record under this section before March 1, This amendment has the effect of implying, necessarily, that a certificate of 2

3 eligibility to expunge from FDLE is, as with traditional expunction under Section , required before someone may petition a court for relief under the new law. 5. However, the new law differs significantly from expunction authorized under Section In particular, it does not mention, contemplate, or require the application for or the issuance of a certificate of eligibility to expunge from FDLE, or from any other agency. 6. In contrast to traditional expunction, the new remedy of expunction for victims of human trafficking (hereafter referred to as "human trafficking expunction"), authorized at Section , does not lend itself to a ministerial determination of eligibility by an agency and thus is not suitable for the imposition of a gatekeeping function by FDLE, as by issuing or denying a "certificate of eligibility" to would-be petitioners. For that reason, no such requirement is to be found (or even implied) in the human trafficking expunction statute. The "eligibility criteria" for this form of expunction, may best be summarized by quoting excerpts from the statute itself: (a) Applicant must be a "victim of human trafficking" as defined. (b) Expunction is authorized for the record of any conviction for an offense committed while [the 3

4 petitioner] was a victim of human trafficking, which offense was committed as a part of the human trafficking scheme of which he or she was a victim or at the direction of an operator of the scheme." (c) The offense to be expunged must not be listed in s (1) (b)1." (Admittedly, this criterion is ministerial.) (d) Filing of a petition must be made with "due diligence after the victim has ceased to be a victim of human trafficking or has sought services for victims of human trafficking, subject to reasonable concerns for the safety of the victim, family members of the victim, or other victims of human traffi.cking that may be jeopardized by the bringing of such petition or for other reasons consistent with the purpose of this section." 7. The procedural and pleading requirements for human trafficking expunction under Section are likewise quite different from those prescribed for traditional expunction. Pertinent portions of the new statute are copied below: (5) Official documentation of the victim's status creates a presumption that his or her participation in the offense was a result of having been a victim of human trafficking but is not required for granting a petition under this section. A determination made without such official documentation must be made by a showing of clear and convincing evidence. 4

5 (6) Each petition to a court to expunge a criminal history record is complete only when accompanied by: (a) The petitioner's sworn statement attesting that the petitioner is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court. (b) Official documentation of the petitioner's status as a victim of human trafficking, if any exists. 8. Adapting Rule for purposes of this category of expunction, simply by inserting a single reference to the new statute, with no other revisions, yields irrelevant, inapplicable (and potentially confusing and misleading) references to a certificate of eligibility to expunge, as well as to an "affidavit [which] shall state with particularity the statutory grounds and the facts in support of the motion." The new law does not require such an affidavit; rather it refers to a "sworn statement attesting that the petitioner is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court." Rule 3.692, as proposed to be amended, does not mention the further requirement, unique to human trafficking expunction, for "[o]fficial documentation of the petitioner's status as a victim of human trafficking, if any exists." 5

6 9. The proposed amendments to the sample forms suffer from some of the same problems: Subsection (e) of Rule 3.989, Affidavit, Petition, and Order to Expunge or Seal Forms, presents a sample "Petition to Expunge" which contains an erroneous reference to a certificate of eligibility to expunge from FDLE. 10. Subsection (g), Order to Expunge, of the same Rule, contains another erroneous reference to a certificate of eligibility to expunge from FDLE. It does not indicate whether "official documentation" of victim status, which "creates a presumption that [the petitioner's] participation in the offense was a result of having been a victim of human trafficking," was or was not introduced in evidence, or whether (in the absence of such documentation) "a showing of [victim status was made by] clear and convincing evidence." Perhaps intentionally, because it is a new law in several senses, the sample Order does not acknowledge or recite that: "A conviction expunged under this section is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings." 11. In view of these discrepancies, which result from the disparities between the two forms of expunction, FDLE respectfully asks that all references to human trafficking expunction as authorized by Section , Fla. Stat. (2013), be deleted from the proposed amendments to Rules and 6

7 3.989, which will of course remove any need to amend either of them at this time. 12. To whatever extent it may be helpful and appropriate, FDLE offers to work with and assist the Criminal Procedure Rules Committee in revising and re-issuing the proposed amendments to Rules and 3.989, to accommodate the implementation of this new remedy by way of expunction for the victims of human trafficking in Florida. From initial review, however, FDLE would suggest that the drafting of new rules (or parts of rules) may be needed rather than the amendment of the text of existing rules. Respectfully submitted, Thomas Kirwin General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida (850) thomaskirwinefdle.state.fl.us Florida Bar No John P. Booth Assistant General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida (850) Florida Bar No

8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by on Melanie L. Casper, Chair, Criminal Procedure Rules Committee, 401 S. Dixie Highway, West Palm Beach, Florida , mcasperbrc-4.com; and on _Heather S. Telfer, Florida Bar Staff Liaison to the Committee, 651 E. Jefferson Street, Tallahassee, Florida , htelfer@flabar.org; this (9% day of February, John P. Booth CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Comments of the Florida Department of Law Enforcement were prepared in compliance with the font requirements of Rule 9.210(a) (2) of the Florida Rules of Appellate Procedure. Jo P. Booth 8