A. Civil Rights
All civil rights of felony offenders are suspended upon conviction until restored by pardon or restoration of civil rights. Fla. Const. art. VI, § 4; Fla. Stat. § 944.292(1). The Governor controls both pardon and restoration of rights, subject to the recommendations of the Clemency Board.1 Under the Rules of Executive Clemency, as revised in March 2011, persons convicted of certain minor felony offenses may apply for restoration of civil rights five years after completion of sentence. See Rule 9A of the Rules, https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf. More serious offenders must wait seven years and have a hearing. See Rule 10A. The voting rights of individuals convicted of federal offenses or in other states must also apply to the Board under the same terms as persons with Florida convictions. See Rules 9C and 10B.2 However, restoration of rights by another state will be given effect under the Full Faith and Credit Clause. See Schlenther v. Depart. of State, Div. Of Licensing, 743 So.2d 536, 537 (Fla. 2d DCA 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point. The matter is simply at an end.”). Restoration does not include firearms rights and, as of 2011, does not affect licensing eligibility.3
Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm. Fla. Stat. §§ 790.001(6), 790.23(1). The governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period. See Rule 5D of the Rules of Executive Clemency of Florida, supra. Firearms relief granted by another jurisdiction will be given effect by Florida. See Schlenter, 743 So.2d 536. In addition, Florida may not deny a concealed weapons permit to an individual with an out-of-state conviction whose firearms rights were never lost. See Doyle v. Depart. of State, Div. of Licensing, 748 So. 2d 353, 356 (Fla. 1st DCA 2000).
C. Inventory of Licensing Restrictions
See Fla. Stat. § 112.0111, discussed in Part III.
II. Discretionary Restoration Mechanisms
A. Executive pardon
The power to grant a pardon and/or to restore civil rights (except in cases of treason or impeachment) is vested in the governor, who may, “by executive order filed with the Secretary of State, suspend collection of fines and forfeitures, grant reprieves not exceeding 60 days, and, with the approval of two members of the Cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.” Fla. Const. art. IV, §8 (a); Fla. Stat. §§ 940.01, 940.05. The governor and three members of his Cabinet are constituted as a Clemency Board4 As of April 2016, the Attorney General, the Chief Financial Officer, and the Agriculture Commissioner join the Governor on the Board. See Office of Executive Clemency, https://www.fcor.state.fl.us/clemency.shtml. The Governor may deny, for any reason, any request for clemency. The Governor must report to the legislature each restoration and pardon granted at the beginning of each legislative session. Fla. Stat. § 940.01.
The Office of Executive Clemency (OEC), established in 1975, administers the day-to-day business of the Clemency Board, and interprets the Rules of Executive Clemency of Florida. The rules are available at https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf. The OEC is a constituent part of the state Parole Commission, which provides investigative support. Fla. Stat. § 947.01 – 947.27. See also Office of Executive Clemency Overview, https://www.fcor.state.fl.us/clemencyOverview.shtml; and Frequently Asked Questions, https://www.fcor.state.fl.us/faq-clemency.shtml.
Restoration of rights (RCR)
Rules 9 and 10 of the Clemency Rules provide two levels of eligibility, depending upon the seriousness of an offense. Sentence must be completed, including fines and court costs (latter may be waived), supervision (e.g., probation or community control), and restitution to victims, and no new charges can be pending. See Rule 5E (all restitution must be paid before rights will be restored, though waiver of this and other eligibility requirements may be sought under Rule 8). Persons convicted of specified serious offenses must wait seven years after completion of sentence to apply, and have a hearing before the board. Others may apply after five years and a hearing may be waived with the approval of governor and two Board members.5 Persons residing in Florida with federal and out-of-state convictions are eligible for restoration of rights but not for pardon. Rule 9D.
Ten years following completion of sentence, plus no outstanding financial obligations resulting from convictions, including traffic fines. See Rule 5E. Persons whose guilty pleas are set aside pursuant to Fla. Stat. § 948.01(2) (see infra), may also apply. Eight years for firearms restoration (see infra).
Restoration of rights (RCR)
Restores “the basic civil rights” (the right to vote, the right to serve on a jury, and the right to hold public office). In addition, restoration of rights “may allow you to be considered for certain types of employment licenses.” Rule 4F. By statute, a person who has had rights restored may not be denied a license based solely on conviction, requiring a case-by-case inquiry in each case into whether the crime is “directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.” Fla. Stat. § 112.011(1)(b). Florida law independently prohibits disqualification from most public employment, even without a restoration, solely because of a prior conviction for a crime. A convicted person may be denied such public employment “if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.” § 112.011(1)(a). The law does not apply to law enforcement, firefighting, and county “positions deemed to be critical to security or public safety.” § 112.011(2).
Full Pardon “unconditionally releases the person from punishment and forgives guilt. It entitles an applicant to all of the rights of citizenship enjoyed by the person before his or her conviction, including the right to own, possess, or use firearms.” Rule 4A. Pardon may also be made conditional, and breach of conditions results in revocation of pardon.
A different process applies for each of two different categories of offenses, identified in Clemency Rules 9A (without a hearing) and 10A (with a hearing). Application forms and instructions can be downloaded at https://www.fcor.state.fl.us/restoration.shtml. Separate procedures and eligibility periods apply for restoration of firearms (see infra).
To be eligible for restoration without a hearing, a person cannot have been convicted of a long list of serious crimes, must have been crime- and arrest-free for a period of five years from the end of supervision, and must have paid restitution and costs. If an application for restoration without a hearing is denied, a person may apply for restoration with a hearing. To be eligible for restoration with a hearing, a person must have been off supervision for seven years, and have paid all restitution and costs.
In cases where a hearing is required, provisions of Rule 6 apply. Notification to the prosecutor and victims is required, and the Parole Commission conducts an extensive investigation to determine whether the person is crime-free and rehabilitated (e.g., must have no outstanding traffic fines). When the investigation is complete, examiners put their recommendations into confidential files given to the Clemency Board before the hearing. Applicants may wait years for a hearing.
Hearings are held on a quarterly basis, and the agenda is posted on the Board’s website. Applicants are not required to attend the hearing, but they have a right to make an oral presentation if they do. Rule 11. At the hearing in person, each applicant may be questioned directly by members of the Board on matters relating to his character, rehabilitation, etc.. Strict time limits in Rule 11C apply for presentations (5 minutes, 10 minutes for all witnesses). Applicants who are denied must wait two years to reapply. Rule 14.
Between 1975 and 1991, restoration of rights in Florida was automatic upon completion of sentence, though it was still necessary to apply and demonstrate eligibility. See Gallie v. Wainwright, 362 So.2d 936, 938 (Fla. 1978). The practice of requiring a hearing before restoration began in 1991, and the list of qualifying offenses was lengthened in 1999 to include about 200 crimes. The list of qualifying offenses was shortened by Governor Bush in 2004 after a series of investigative reports in the Miami Herald revealed lengthy delays and other shortcomings in the clemency process.6 In April 2007, in accordance with a campaign promise, Governor Charlie Crist persuaded the Board to approve new rules making restoration automatic in many cases. In 2011, Governor Crist’s reforms were rolled back by Governor Scott, and eligibility periods lengthened and standards toughened. See notes 1 and 2, supra.
Frequency of Restoration of Rights Grants
See Clemency Action Reports, https://www.fcor.state.fl.us/reports.shtml.7 In December of 2014, 11,638 RCR applications were pending. Source: Commission on Offender Review. Pardons and firearms restorations have been fewer since Governor Scott took office. 8
Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm. Fla. Stat. §§ 790.001(6), 790.23(1). The Governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period. Rule 5D.
Pardons to Restore Firearms Authority: 2006 – 2014
Applications received – firearms
Applications received – pardon
Coordinator, Office of Exec. Clemency
(850) 488-2952 / FAX (850) 488-0695
B. Judicial sealing or expungement
Withholding adjudication of guilt
Under Fla. Stat. § 948.01(2), trial courts may withhold adjudication of guilt after a plea has been accepted or after a verdict of guilty has been rendered and place the defendant on probation if it appears “that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law . . . .” See also Fla. R. Crim. P. Rule 3.670 (“where allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation”). Upon successful completion of probation, charges may be dismissed. Id. Where adjudication has been withheld, there is no conviction for purposes of impeachment. See State v. McFadden, 772 So.2d 1209, 1213 (Fla. 2000). Records may be expunged if they have been sealed for at least ten years. Fla. Stat. § 943.0585 (2)(h). Expunction is defined as the physical destruction of records. See § 943.045(13).
Under legislation adopted in 2004, trial courts no longer have authority to withhold adjudication in first degree felony cases. They may withhold adjudication in second and third degree felony cases upon request of the prosecutor, or if “the court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in [Fla. Stat. § 921.0026, ‘mitigating circumstances’].” In second degree felony cases no authority exists if adjudication has been previously withheld. Fla. Stat. § 775.08435.
Expungement and sealing of non-conviction records
Sealing and “expunction” are available for non-conviction records that do not involve specified sexual, violent and/or otherwise serious misdemeanors. Expunction is defined as the physical destruction of records, while sealing is defined as limiting access to anyone who has no specific legal right of access.9 Eligibility criteria and applicable procedures are set forth in § 943.0585 (expunction) and § 943.059 (sealing). In general, sealing is available in cases where there’s been no adjudication of guilt, including withheld adjudication, while expunction is available only in cases where no charges are filed or charges are dismissed prior to trial. In both cases relief is available only if a person has no prior record. Records that have been expunged are destroyed except for one copy retained by the Department of Law Enforcement. Records that have been sealed are available only to the subject of the record or the subject’s attorney; to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law; or to certain entities for their respective licensing and employment purposes. § 943.059(4).
In general, records of juvenile adjudications are confidential, Fla. Stat. § 985.04(1), subject to substantial exceptions. Under Fla. Stat. § 985.04(2), juvenile records are available if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors; or transferred to the adult system. See also § 985.04(1) (juvenile records may be disclosed to authorized personnel of the court, law enforcement and corrections, school superintendents and their designees, and any licensed treatment professional). Expungement is available for any non-judicial record of a minor’s arrest (non-violent misdemeanor, first offense) after successful completion of a pre-arrest or post-arrest diversion program. § 943.0582.
Victims of Human Trafficking
Expungement available pursuant to Fla. Stat. § 943.0583.
III. Nondiscrimination in Licensing and Employment
Public employment may not be denied “solely because of” a conviction record, but only if the crime of conviction is “directly related” to the job. Fla. Stat. § 112.011(1)(a). These restrictions do not apply to law enforcement, firefighting, and “positions deemed to be critical to security or public safety.” § 112.011(2). Drug offenders must comply with certain additional treatment and rehabilitation requirements before they may qualify for public employment or licensing. § 775.16. Successful completion of Correctional Education Program by drug offenders may satisfy eligibility requirements for occupational licensure. Id. See also Op. Att’y. Gen. Fl., 1973-355 (1973) (licensing authorities may not deny licenses to individuals whose civil rights have been restored, nor may they revoke such persons’ licenses which have been granted, unless the licensing authority determines and finds, after due investigation, that the offense directly relates to the license sought or held and the crime was a felony or first degree misdemeanor).
Health care employment and licensing:
Conviction may be the basis for disqualification from employment or contracting with state agencies in connection with various health care and related professions, including care for children, and developmentally disabled or vulnerable adults. See e.g., Fla. Stat. § 110.1127 (state employee positions for which screening required); § 409.175 (foster care); § 400.953. (home medical equipment providers); § 400.215 (nursing homes); § 393.0655 (developmental disability direct service providers); § 397.451 (substance abuse services); § 489.129(1)(b) (construction contractor).
Case-by-case exemptions may be granted by licensing agencies, state-regulated facilities, and state agencies in cases where an individual would otherwise be disqualified as a result of a criminal record, pursuant to Fla. Stat. § 435.07(1). This exemption procedure applies to some but not all types of conviction, and is available three years after completion of sentence. In order to qualify for exemption an applicant must demonstrate “by clear and convincing evidence” that he or she “should not be disqualified from employment.” § 435.07(3). Applicants for an exemption
have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.
Id. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in Fla. Stat. chapter 120. See Fla. Stat. § 120.51 et seq. (Administrative Procedure Act). No exemption may be granted to persons who have been convicted of any offense enumerated in § 435.03, even if they have been pardoned. § 435.07(4). These offenses include specified sex offenses; abuse of a child or vulnerable adult; assault or any other violence, including domestic violence; sale of controlled substances; felony theft or robbery.
A convicted person may not be denied a license based on criminal record unless convicted of a felony or first-degree misdemeanor that is “directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare for the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.” Fla. Stat. § 112.011(1)(b).10 In June 2011 a law was enacted requiring each state agency responsible for professional and occupational regulatory boards to report to the governor and legislature all laws and rules governing the ability of professional licensing boards to deny employment or licensure based upon an individual’s criminal history, and to identify alternatives to any disqualifying statutes or rules. See Fla. Stat. § 112.0111.11
- In 1976, the Florida Supreme Court overturned a legislative enactment purporting to automatically restore civil rights to convicted persons, opining that the Governor’s power to grant clemency and restoration of civil rights cannot be exercised or regulated by the legislature. See In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla. 1976).
- In 2011, the Clemency Board modified the clemency rules to roll back changes dating from 2007 that had been intended to make certain less serious offenders eligible for “automatic” restoration of all civil rights by the Board upon determination of eligibility by the Parole Commission. See Erika Wood,Turning Back the Clock in Florida, March 10, 2011, http://www.huffingtonpost.com/erika-wood/turning-back-the-clock-in_b_834239.html. See also Voting Rights Restoration Efforts in Florida, Brennan Center for Justice, http://www.brennancenter.org/content/pages/voting_rights_restoration_efforts_in_florida (March 2014). The 2011 changes stiffened eligibility requirements for all offenders beyond those in effect prior to 2007. See Part II, infra.
- In 2011, the Florida legislature passed the “decoupling bill,” which prohibits licensing boards from denying any license based solely on the fact that the applicant has not had civil rights restored. See Fla. Stat. § 112.011(1)(c). There are exceptions for law enforcement agencies, and agencies are not precluded from taking into account the fact that civil rights have not been restored. See § 112.011(2) (listing exceptions). See also § 112.0111, also enacted in 2011, which requires agencies to inventory and analyze laws allowing agencies to restrict licenses based upon criminal history. The full text of this law is reprinted at note 11, infra.
- Prior to 2003 approval of all three Cabinet members required; 2/3 requirement introduced by Revision No. 8 (1998), effective January 7, 2003).
- A provision restoring rights automatically without a hearing 15 years after completion of sentence was deleted in the March 2011 amendments to the rules. See note 2, supra.
- See Debbie Cenziper & Jason Grotto, Clemency Proving Elusive for Florida’s Ex-Cons, Miami Herald, October 31, 2004; The Long Road to Clemency, Miami Herald, November 7, 2004.
- The statistics on the number of RCR grants issued from 2004 onward are contained in Proviso Report to the Legislature, A Report on the Status of the Processing of Civil Rights Clemency Cases for FY 2008-2009, https://www.fcor.state.fl.us/docs/reports/FCORprovisoreport0809.pdf. In the 18 months after April 5, 2007, the Commission processed 271,000 applications for restoration of rights, and granted 146,549 of them, with about 60,000 cases still pending. Proviso Report at pp. 6, 9. According to an investigative series by the Miami Herald the fall of 2004, see note 4 supra, 48,000 requests for restoration of rights were granted between 1999 and 2004, compared with 200,000 rejected during that period. No specific information available on the number of pardons granted during this period.
- See Michael Bender, Citrus County Electrician Gets Gov. Rick Scott’s First Pardon, Tampa Times/Herald, June 2, 2011, available at http://www.tampabay.com/news/politics/gubernatorial/citrus-county-electrician-gets-gov-rick-scotts-first-full-pardon/1173320.
See Fla. Stat. § 943.045(13) and (14):
(13) “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, except that criminal history records in the custody of the department [of law enforcement] 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.
(14) “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.
- A provision making eligibility for licenses dependent on a person’s having had their rights restored was repealed in 2011. See note 3, supra.
- § 112.0111. Restrictions on the employment of ex-offenders; legislative intent; state agency reporting requirements
(1) The Legislature declares that a goal of this state is to clearly identify the occupations from which ex-offenders are disqualified based on the nature of their offenses. The Legislature seeks to make employment opportunities available to ex-offenders in a manner that serves to preserve and protect the health, safety, and welfare of the general public, yet encourages them to become productive members of society. To this end, state agencies that exercise regulatory authority are in the best position to identify all restrictions on employment imposed by the agencies or by boards that regulate professions and occupations and are obligated to protect the health, safety, and welfare of the general public by clearly setting forth those restrictions in keeping with standards and protections determined by the agencies to be in the least restrictive manner.
(2) Each state agency, including, but not limited to, those state agencies responsible for professional and occupational regulatory boards, shall ensure the appropriate restrictions necessary to protect the overall health, safety, and welfare of the general public are in place, and by December 31, 2011, and every 4 years thereafter, submit to the Governor, the President of the Senate, and the Speaker of the House of Representatives a report that includes:
(a) A list of all agency or board statutes or rules that disqualify from employment or licensure persons who have been convicted of a crime and have completed any incarceration and restitution to which they have been sentenced for such crime.
(b) A determination of whether the disqualifying statutes or rules are readily available to prospective employers and licensees.
(c) The identification and evaluation of alternatives to the disqualifying statutes or rules which protect the health, safety, and welfare of the general public without impeding the gainful employment of ex-offenders.
In January 2012, the Florida Department of Business and Professional Regulation submitted a report to the Governor pursuant to this law, which included a list of laws and regulations that govern the ability of the DBPR and various licensing boards to deny licensure based upon criminal record and a “list of crimes for each profession that do not relate to an applicant’s ability to practice that profession,” and that are considered not “substantially related” to an individual’s ability to practice that profession. See Letter from Ken Lawson, DBPR, to Governor Rick Scott, January 4, 2012 (on file with author).
This letter reported that “very few of our statutes and rules automatically disqualify applicants,” but that in most cases statutes and rules authorize denial of professional license for lack of good moral character when there is a “substantial connection between the prior criminal conviction and the practice of the profession.” In addition, the DBPR also applies a “substantial connection” standard to deny business licensure. Executive Order No. 06-89: On April 25, 2006, Governor Jeb Bush issued Executive Order No. 06-89, directing each state agency 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) report to him the reasons for any automatic disqualifications and any available procedures for waiver; and 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and 4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment. The Governor asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.” The Governor also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.” The text of the order is at http://edocs.dlis.state.fl.us/fldocs/governor/orders/2006/06-89-exoftf.pdf. The order emerged from the work of the Governor’s Ex-Offender Task Force, which found “many state laws and policies that impose restrictions on the employment of people who have been to prison,” affecting “more than one-third of Florida’s 7.9 million non-farm jobs, including state and local government jobs, jobs in state-licensed, regulated and funded entities, and jobs requiring state certification.” See Final Report of the Florida Ex-Offender Task Force (2006), available at http://www.pdmiami.com/governors_ex-offender_task_force.pdf
Copyright © 2017