Restoration of Rights & Record Relief
Last updated: August 27, 2023
I. Loss & restoration of civil/firearms rights
A. Civil Rights
Vote: Under the Florida Constitution, the right to vote and hold office are suspended upon conviction of a felony “until restoration of civil rights or removal of disability.” Fla. Const. art. VI, § 4; Fla. Stat. § 944.292(1). Pursuant to a 2018 ballot initiative, this constitutional provision was amended to provide that “the disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence, including parole and probation.”1 Persons convicted of murder or a felony sexual offense are excepted from this restoration provision and may vote only upon obtaining a formal restoration of rights. In June, 2019, Florida passed a law defining “completion of all terms of sentence” to include “full payment” of any restitution ordered by the court, and “full payment of fines or fees ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision . . . .” Fla. Stat. § 98.0751(2)(a)(5), enacted by S7066. It includes only financial obligations “contained in the four corners of the sentencing document,” and not amounts “that accrue after the date the obligation is ordered as a part of the sentence.” Id. § 98.0751(2)(a)(5)(c). The law explicitly requires that the payment requirement “is not deemed completed upon conversion to a civil lien.” Id.
The governor’s signature on the bill triggered a legal challenge in federal district court based upon several constitutional theories, including that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not. The United States Court of Appeals for the Eleventh Circuit ruled, in affirming the district court’s preliminary injunction, that Florida cannot condition voting on payment of an amount a person is genuinely unable to pay. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). After a full trial on the merits, the district court held that the State may condition voting on payment of fines and restitution imposed by the court at sentencing that a person is able to pay, but may not, consistent with the Equal Protection Clause, condition voting on payment of amounts a person is unable to pay. Further, at least some of the financial obligations are taxes that cannot block access to voting consistent with the Twenty-fourth Amendment, whether a person is able to pay or not. See Jones v. DeSantis, Case 4:19-cv-00300-RH-MJF (May 24, 2020).2
Office: It appears that the right to hold office was not restored by the ballot initiative, so that an individual must obtain a formal restoration of rights through the clemency process.
Jury: The right to serve on a jury is also lost upon conviction of a felony, or if felony or misdemeanor criminal charges are pending. See Fla. Stat. § 40.013(1).3 In March 2021, Florida changed its executive clemency rules, such that a person with a past felony conviction, other than a conviction for murder or a sexual offense, regains their right to serve on a jury after completing the terms of their sentence, including the payment of legal financial obligations.
Aside from the 2018 ballot initiative on voting rights, the process for restoration of voting rights is controlled entirely by the governor, subject to the recommendations of the Clemency Board (on which the governor sits). See https://www.fcor.state.fl.us/restoration.shtml. 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. People with more serious offenses must wait seven years and have a hearing. See Rule 10A.4 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.5
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 of Executive Clemency, Rules 9C and 10B.
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 IV.
II. Pardon policy & practice
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 Board.6 As of April 2016, the attorney general, the State’s chief financial officer, and its 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 civil rights (RCR)
Rules 9 and 10 of the Clemency Rules provide two levels of eligibility, depending upon whether a person qualifies for automatic restoration of rights under Amendment 4 (see above). Those who are eligible for automatic restoration under Amendment 4 may regain other civil rights under Rule 9 without a hearing, and those who are ineligible because of outstanding court debt (“legal financial obligations”) may regain their rights after a hearing under Rule 10. 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). Until March 2021, persons were required to wait five years to regain civil rights under Rule 9, and seven years to have a hearing before the board under Rule 10. On March 10, 2021, Governor DeSantis announced amendments to Rules 9, 10 and 5E deleting these waiting periods.[note]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. [/note] 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 civil 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 civil 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.7 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.
“Clemency action reports” documenting restoration of rights grants for the previous two years are issued annually by the Florida Commission on Offender Review (the umbrella agency that houses the Office of Executive Clemency). https://www.fcor.state.fl.us/reports.shtml. The two-year numbers from the 2019 report are below:
Pardons and firearms restorations
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.
Clemency to Restore Firearms Rights: 2006 – 2014
|Applications received – firearms||Firearms restored||Applications received – pardon||Pardon granted|
Coordinator, Office of Exec. Clemency
(850) 488-2952 / FAX (850) 488-0695
III. Expungement, sealing & other record relief
A. Withholding adjudication of guilt, followed by sealing
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), but the record may be sealed or expunged only if all other eligibility requirements for sealing are met, which include no other conviction record. See § 948.01(2) and discussion of sealing and expungement of non-conviction records below.
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.
While there are no other categorical limits on which defendants may be eligible for a “withheld” disposition, sealing (limited access) is available only where a defendant has no prior conviction or adjudication, and has not previously had a record sealed or expunged. Fla Stat. § 943.059(1)(b)(3); § 943.059(1)(b)(3). Certain serious crimes, including crimes involving sex offender registration and violence, are ineligible for sealing in “withheld” cases. § 943.059(2)(a)(3); § 943.0585(2)(a)(3). Records in “withheld” cases that have been sealed may be expunged after ten years. § 943.0585 (2)(h). Expunction and sealing are defined § 943.045(16) and (19), quoted in note 9 below.
B. Sealing and expungement of non-conviction records
1. Court-ordered expungement and sealing for first offenders
In 2019, H7125 reorganized the provisions relating to sealing and expunction of non-conviction records, but with a few minor exceptions the eligibility criteria were not substantively changed (and are as described below).
Sealing is available immediately upon dismissal of charges or completion of any court-ordered supervision. Expungement is available only 10 years after sealing, “unless a plea was not entered or all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were dismissed before trial or a judgment of acquittal was rendered by a judge or a verdict of not guilty was rendered by a judge or jury.” § 943.0585(1)(h). Charges for specified serious violent crimes are ineligible for either sealing or expungement. § 943.0584.
Prior conviction disqualification: A prior conviction in a Florida court for any felony or a list of specified violent misdemeanors, including as a minor, disqualifies a person from either form of relief for non-conviction records § 943.0585(d). (Prior to 2019 the disqualifying prior could have been from any jurisdiction.) A prior sealing or expungement is also disqualifying unless the expungement is sought for a record sealed 10 years before. § 943.0585(g), (h).
The primary difference between the two forms of relief is that sealing is available immediately upon dismissal of charges or completion of any court-ordered supervision, while expungement is available only 10 years after sealing, “unless a plea was not entered or all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were dismissed before trial or a judgment of acquittal was rendered by a judge or a verdict of not guilty was rendered by a judge or jury.” § 943.0585(1)(h).
Eligibility criteria and applicable procedures for sealing and expunging police and court records are set forth in Fla. Stat. §§ 943.0585 (expunction) and 943.059 (sealing) as well as Florida Rules of Criminal Procedure 3.692 and 3.989. § 943.058 identifies the crimes that are disqualifying The effect of each form of relief is described in § 943.045(16) and (19).10
A person may not apply for sealing or expungement unless they first obtain a Certificate of Eligibility from the Department of Law Enforcement. See Fla. Stat. §§ 943.0585(4)(a) and 943.059(4)(a). Only one court-ordered sealing under these statutes is available in a lifetime. Records that have been expunged are destroyed except for one copy retained by the Department of Law Enforcement and by the court. Records that have been sealed are available only to the subject of the record or the subject’s attorney. A person whose record has been sealed or expunged may lawfully deny the record except in certain specified contexts, and the records remain available 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. Both sealed and expunged records also remain available to certain entities for licensing and employment purposes, including law enforcement, law, agencies serving vulnerable populations such as children and the disabled, and schools.
Sealing is available in cases where there has been no adjudication of guilt, as well as in cases where adjudication has been withheld – except that certain serious sexual and violent offenses are not eligible for sealing in withheld cases. Expungement is available in cases where no charges were filed, or where all charges were dismissed prior to trial, and in withheld cases after a record has been sealed for 10 years. § 943.0585(2)(h). Sealing and expungement are available only if a person has no prior record. § 943.059(1)(b)(3); § 943.059(1)(b)(3). However, notwithstanding other eligibility requirements, a person may have their record expunged if they were found to have acted in lawful self-defense. § 943.0578.
In 2023 the legislature approved a slight expansion of eligiility to exclude prior juvenile adjudications from disqualification, but the bil was vetoed by the governor. See SB 605.
Effective October 1, 2018, a person charged with otherwise eligible crimes may apply immediately for expungement in the event of a judgment of acquittal rendered by a judge, or a verdict of not guilty rendered by a judge or jury, without the record first being sealed for 10 years.
The court is generally limited to sealing or expunging only one non-conviction record. §§ 943.0585(1) & 943.059. However, the court may, “at its sole discretion” order the sealing or expungement “of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.” Id. “This section does not confer any right to the sealing of any criminal history record, and any request for sealing a criminal history record may be denied at the sole discretion of the court.” § 943.059.
Courts may order sealing or expungement of only a portion of a person’s criminal history record, pertaining to one arrest or incident, except that such partial sealing is prohibited if the defendant “has been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains.” Fla. Stat. §§ 943.0585(1)(b)(2); 943.059(1)(c)(as amended). Thus, redaction is prohibited.
2. Automatic sealing
The 2019 law also authorized the Florida Department of Law Enforcement to create an automated process for sealing eligible non-conviction records in its possession (not court records). The law did not establish a timetable for implementation. See Fla. Stat. § 943.0595. Automatic sealing of a criminal history record by the repository “does not require sealing by the court or other criminal justice agencies.” Records appear to be eligible for automatic sealing under this provision even if the person has previously been convicted or had records previously expunged, and “there is no limitation on the number of times a person may obtain an automatic sealing.” § 943.0595(2)(b).
C. Victims of human trafficking
Expungement of the criminal records of victims of human trafficking, including convictions related to the trafficking, is available pursuant to Fla. Stat. § 943.0583:
A person who is a victim of human trafficking may petition for the expunction of a criminal history record resulting from the arrest or filing of charges for one or more offenses committed or reported to have been committed while the person was a victim of human trafficking, which offense was committed or reported to have been committed as a part of the human trafficking scheme of which the person was a victim or at the direction of an operator of the scheme, including, but not limited to, violations under chapters 796 and 847, without regard to the disposition of the arrest or of any charges.
§ 943.0583(3). Serious violent offenses and repeat offenders are not eligible for relief. Id. A conviction expunged under this section “is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.” Id. In 2021 this section was amended to permit expungement of more than one offense (“one or more offenses”) and to prohibit the charging of any fee for expungement of these records.
D. Juvenile records
Juvenile diversion records: In 2022, the FDLE was directed to expunge the “nonjudicial records” of juveniles charged with midemeanors and non-violent felonies who successfully completed diversion, expanding this relief from those with first-time misdemeanor convictions. and excluding only specified violent offenses. Fla. Stat. § 943.0582 (as amended by HR 195 and HR 197). Such a record is confidential and exempt from public disclosure, except that the record must be made available to criminal justice agencies only for the purpose of:
determining eligibility for diversion programs; a criminal investigation; or making a prosecutorial decision. These bills were vetoed in 2021 by the Governor, but approved after violent offenses were excluded.
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. Records may be “destroyed” by the court as early as age 24:
The court shall preserve the records pertaining to a child charged with committing a delinquent act or violation of law until the child reaches 24 years of age or reaches 26 years of age if he or she is a serious or habitual delinquent child, until 5 years after the last entry was made, or until 3 years after the death of the child, whichever is earlier, and may then destroy them, except that records made of traffic offenses in which there is no allegation of delinquency may be destroyed as soon as this can be reasonably accomplished.
§ 985.045. This provision appears to relate solely to administrative record retention, however, and there is no statutory mechanism through which a person may request destruction.
§ 943.0515. Retention of criminal history records of “serious or habitual juvenile offender[s]”: “The Criminal Justice Information Program shall retain the criminal history record of a minor who is classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison under chapter 985 for 5 years after the date the offender reaches 21 years of age, at which time the record shall be expunged unless it meets the criteria of paragraph (2)(a) or paragraph (2)(b).” Those paragraphs specify serious violent offenses.
IV. Criminal record in employment & licensing
A. Public employment and licensing – in general
The general standard is stated in Fla. Stat. § 112.011(1)(a):
A person may not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person may be denied employment by the state, any of its agencies or political subdivisions, or any municipality by reason of the prior conviction for a crime if the crime was a felony or first-degree misdemeanor and directly related to the position of employment sought.
These protections do not apply to law enforcement, firefighting, and “positions deemed to be critical to security or public safety.” § 112.011(2). People with drug offenses 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 people with drug offenses may satisfy eligibility requirements for occupational licensure. Id.
B. 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.
C. Business, professional and occupational licensing
Businesses and professions regulated by the Department of Business and Professional Regulation (DBPR) are subject to the “relates to” standard by virtue of Fla. Stat. § 455.227(1)(c).
Barbering and construction trades: A new provision was added to this chapter in 2019 by H7125 to prohibit consideration of a conviction more than five years old for licensing of barbers and cosmetologists; plumbers, electricians and a variety of other building trades; and “any other profession for which the department issues a license, provided the profession is offered to inmates in any correctional institution or correctional facility as vocational training or through an industry certification program.” See § 455.213(3)(a)(2019)(“A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license”). Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.” Persons are permitted to apply for a license prior to their release from confinement or supervision. Starting on October 1, 2019, and updated quarterly thereafter, the boards must compile a list indicating each crime used as a basis for a license denial. For each crime listed, the board must identify the crime reported and for each license application the date of conviction or sentencing date, whichever is later; and the date adjudication was entered.
In addition, the DPBR is directed to compile a list of crimes that “do not relate to the practice of the profession or the ability to practice the profession and do not constitute grounds for denial of registration” for any contracting trade. Fla. Stat. § 489.553 (9). This list must be made available on the department’s website and updated annually. The DPBR must include on the list of crimes that “do not relate” any crimes that were reported by an applicant but not used to deny the license. Id. It must also separately list any reported crimes that were used to deny a license. § 489.553 (10).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).
- For a comprehensive examination of the way in which the inability to pay court-ordered economic sanctions—fines, fees, surcharges, and restitution—may prevent people with felony convictions from voting throughout the United States, see Beth Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (2019); see also Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007), available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf.
- “No person who is under prosecution for any crime, or who has been convicted in this state, any federal court, or any other state, territory, or country of bribery, forgery, perjury, larceny, or any other offense that is a felony in this state or which if it had been committed in this state would be a felony, unless restored to civil rights, shall be qualified to serve as a juror.” While this wording is somewhat ambiguous as to the four specified crimes, at least two of which may be charged as misdemeanors, most Florida court websites limit disqualification to felony offenses.
- 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 offenses 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 persons with offenses 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 was required; 2/3 requirement introduced by Revision No. 8 (1998), effective January 7, 2003).
- 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.
- Statistics on the number of RCR grants issued between 2004 and 2009 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.
- Fla. Stat. § 943.045(16) and (19) provide as follows:
(16) “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 . . . .
(19) “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.
- This new legislative initiative is reminiscent of the efforts begun under Florida Governor Jeb Bush to increase opportunities for individuals with a criminal record in licensed occupations. 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. 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. 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.