Tips on how to determine whether you are eligible to have your criminal record sealed or expunged, and if so, details on how to get it done. The following is for informational purposes and does not constitute legal advice.
What is the Difference Between Sealing and Expunging a Record
In practical terms there are little differences between sealing or expunging a record. In fact, the procedures used to apply for sealing or expunging are almost identical. If your records are "sealed" they are unavailable to the public; however, they are viewable in their entirety by certain governmental/law enforcement agencies as well as the judiciary. Expunged records are destroyed; however, a record of the documents is maintained. The material cannot be viewed by anyone absent a court order.
Am I Eligible to Expunge or Seal My Record?
Florida Statutes Section 943.0585 (expunging) and 943.059 (sealing), detail a person's qualifications. 1. You must not have ANY adjudications of guilt for a criminal offense in your criminal history from any state. There is a distinction between an adjudication of guilt and a withhold of adjudication. If you received a withhold, you may be eligible. 2. You must have never sealed or expunged records in Florida previously. You may only seal or expunge ONE criminal record in the State. This rule applies even if the results of the multiple incidences involve dismissals or acquittals. 3. The underlying offense must not be otherwise statutorily prohibited from being sealed or expunged. 4. Court supervision for the underlying offense has completed. 5. If you are applying for expunction, the underlying offense must have either been dismissed or no filed unless the record has been sealed for 10 years or more.
What are the Disqualifying Offenses?
There are a large number of disqualifying offenses listed in the above statutes, the following are a sampling of the disqualifying offenses: 1. Sex offenses in 393.135, 394.4593, 787.025, 800.04, 810.14, 825.1025, 827.071. 2. Certain fraud offenses under 817.034. 3. Trafficking in controlled substances 893.135. In addition, the following offenses are prohibited as enumerated in 907.041: Arson, aggravated assault, aggravated battery, illegal use of explosives, child abuse or aggravated child abuse, abuse of an elderly person, aircraft piracy, kidnapping, homicide, manslaughter, sexual activity with a child, stalking and aggravated stalking, acts of domestic violence, sexual battery, robbery, burglary of a dwelling and carjacking. To determine whether your offense is prohibited, a thorough reading of 943.0585 and 943.059 is encouraged. Even if the offense was dismissed, did not involve formal charges by the State Attorney, or involved an acquittal, if the offense is a disqualified offense, you are ineligible for sealing or expunging your record.
What if there were Multiple Offenses?
If you have several individual offenses stemming from a single incident/arrest, you may be eligible to expunge/seal all of the offenses.
What is the Procedure?
1. Obtain a certificate of eligibility from FDLE. You must complete the affidavit and have it notarized. If you are applying for expunction, a section must be completed by the State Attorney's Office. As part of the application, you must be fingerprinted and submit the card to FDLE along with certified copies of the documents incident to the offense. 2. If you receive your certificate of eligibility, the process is not over. You must then file a petition/affidavit in the trial court and serve the State and the arresting agency with your petition along with a notice of hearing. 3. If your certificate was denied, and you believe it was in error, you may seek review at the Trial Court level through a petition for mandamus. 4. After you serve the State and the arresting agency you will be required to appear for a hearing at the Trial Court. 5. The Trial Court makes a final ruling, which may be appealable to the District Courts.
Can the Court Deny the Petition?
Yes, even if you are otherwise eligible. No one has the right to sealing or expunging, and the Court may, in its discretion deny your petition. There are varied reasons for the denial, and the denial is subject to appeal to the District Courts.
Are there Different Rules/Procedures for Juvenile Offenses?
Yes. Juvenile offenses are handled differently. If the minor was not classified as a habitual offender, or committed to juvenile prison, the records will be automatically expunged within 2 years of the person's 19th birthday. The individual may apply for expungement once he/she is 18 if he/she meets certain criteria as outlined in 943.0515.
How Much Does it Cost?
FDLE charges a $75.00 processing fee for its application. Most law enforcement agencies will also charge for the fingerprint fee, and will vary depending upon where the prints are done. The clerk of court will also charge for obtaining certified copies of documents, and for filing the petition. If you seek legal counsel, attorney fees will vary from attorney to attorney.
If the Records are Sealed/Expunged Can I Deny the Prior Arrest/Offense?
The answer to this depends upon the context of the denial. You must disclose the arrest/offense if: (1) you are applying for employment with a criminal justice agency, (2) you are applying for licensure or employment with Department of Children and Family Services, Department of Juvenile Justice, the Department of Education, and a variety of educational/child care facilities, (3) employment working directly with children, disabled or elderly, (4) employment at a seaport, (5) application to the Florida Bar, (6) application for any petitions for sealing or expunging.
Additional resources provided by the author
The above is only a brief outline of the sealing/expunging process and is not intended to provide the reader with all possible information related to the process. Florida Statutes 943.059, 943.0585, 943.0515, 943.0582, 943.0581 are essential to understanding sealing and expunging records. You may also review the procedures as detailed by the Florida Department of Law Enforcement, available online.
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