Florida requires an application and a Certificate of Eligibility
Florida Statutes, s.943.0585 and s.943.059, set forth the criteria that must be met in order to be eligible to have a criminal history record sealed or expunged. In addition, these statutes also state that in order to have a criminal history record sealed or expunged within the State of Florida, an individual must first make application to the FDLE for a Certificate of Eligibility. Please note that the issuance of a Certificate of Eligibility does not mean that your criminal history record will be ordered sealed or expunged. It merely indicates that you are statutorily eligible for the type of relief that is being requested.
The FDLE provides applications for Certification of Eligibility to the Clerk of Courts in all sixty-seven (67) counties throughout the State of Florida. These application packages may be obtained from the criminal division within each county courthouse. If you live outside Florida it may be mailed to you.
Why do I even have a criminal history when the charges were dropped or dismissed?
The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Section 943.053(3), Florida Statutes, which provides for public access to criminal history records. The term "criminal history information" is defined, tracking the federal definition, at Section 943.045(4), Florida Statutes. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.
Consider obtaining a criminal history record before applying to the FDLE
Under Florida and federal law, an individual has the right to request a copy of his or her criminal history record for purposes of review, to ensure that it is both accurate and complete. This process is known as a Personal Review. The requestor may examine the record obtained through Personal Review for accuracy and to challenge any information contained within the criminal history record that the record subject believes is inaccurate or incomplete. No charge is assessed by FDLE for this service. See s.943.056, Florida Statutes. A Personal Review allows an individual to determine which, if any, date(s) of arrest the applicant will be eligible to have sealed or expunged. However, obtaining a personal review is not a prerequisite to applying for a certificate of eligibility to seal or expunge a criminal history record,
Sealing vs. Expungement
The same eligibility requirements which apply to sealing also apply to expunction, with certain additional requirements. Any charge, which resulted in a withholding of adjudication or in an acquittal (not guilty verdict) after trial, may not be expunged unless and until it has first been sealed for at least 10 years. See s. 943.0585(2)(h), Florida Statutes. A charge which was dismissed before trial (e.g., no information, nolle prosequi, no bill, etc.) may be expunged immediately provided all charges related to the arrest were so disposed of, and the record is otherwise eligible.
When a criminal history record is sealed, the public will not have access to it. However, certain governmental or related entities, primarily those listed in s. 943.059(4)(a), Florida Statutes, have access to sealed record information in its entirety, and if the record is expunged then those entities would not have access to the record without a court order,
Can I have more than one date of arrest sealed or expunged?
The eligibility criteria for an applicant to have a record sealed or expunged include the requirement that the applicant be able to attest that he or she has never previously had a record sealed or expunged in Florida or in another jurisdiction. This means, in effect, that a person may only seal or expunge one arrest record in one proceeding. More than one record may be sealed or expunged in the same proceeding if the court, in its sole discretion, finds the arrests to be directly related.
A record that is initially ineligible for expunction (e.g., where adjudication is withheld) may become eligible after it has been sealed for 10 years. However, a person may not seal or expunge one arrest record and then, later and in a different proceeding, ask to have a different arrest record sealed or expunged. An expunction or sealing which occurs automatically or by operation of law, without any action on the applicant's part, is not considered a prior expunction or sealing for this purpose.
What charges can not be sealed?
A list of charges that may not be sealed when adjudication is withheld is included with the application package, and is also enumerated in s. 943.059, Florida Statutes. (The same listing is found in s. 943.0585, because the specified offenses may not be expunged either.) In addition, if a person has been adjudicated guilty of any criminal offense in any jurisdiction (or adjudicated delinquent for any felony or for certain specified misdemeanors), whether or not related to the charge(s) that the person is applying for, the record is ineligible for sealing and the application will be denied.
What if I had a charge sealed or expunged in another state?
If the other records were sealed or expunged by operation of law (administratively or automatically, without intervention or action by the subject of the record), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged.
To get started you need the Certificate of Eligibility
In order to obtain a Certificate of Eligibility to petition the court to seal or expunge a criminal history record, the following requirements must be met pursuant to s.943.0585(2) and s.943.059(2), Florida Statutes:
A. Section A of the application must be completed and signed in the presence of a notary public.
B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant's name, race, sex, date of birth, social security number, and signature, prior to submission to FDLE.
C. The applicant must provide a certified disposition of the case that he/she is applying to have sealed or expunged.
D. A NONREFUNDABLE money order or cashier's check for $75.00 made payable to the FDLE must accompany the application.
E. If you are requesting an expunction of a criminal history record, the State Attorney with jurisdiction over your case must complete Section B of the application.
Once you have completed all the above steps all the above steps with your lawyer's assistance, your lawyer will then file the paperwork to the Court. The Court will then decide whether or not to grant the motion to seal or expunge your records. While it is usually granted the Court has discretion to deny the motion to seal or expunge. Therefore it is best advised to have an attorney go through this process with you so that you can achieve the best result.
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