The ability to seal or expunge your criminal record will depend on many factors. Firstly, no one is entitled to a seal or expunction. You have to qualify. Then you must petition and go before a Judge to see if he or she will allow it. It is within their discretion. Technically, you don’t need to have an attorney to accomplish this process – but it is preferable as the process can be frustrating.
The first step in getting your record sealed or expunged is determining whether or not you qualify for one. If you have ever been convicted of any criminal offense, you are ineligible for a seal or expunction.
Example: When you were 18, you were caught stealing a CD from a music store. You went to court and resolved it with some probation and a withhold of adjudication. At this point, you probably qualify for a seal. However, if you get a DUI or are convicted of any other offense, you cannot have any part of your record sealed or expunged – ever.
Certain offenses are ineligible for sealing or expunction. Requests for sealing or expunging of such a criminal history record will be denied even if the adjudication of guilt was withheld. Examples of such offenses are child abuse, arson, manslaughter, home invasion robbery and certain domestic violence offenses.
If you believe you (and the offense) qualify, your next step would be to apply to the Florida Department of Law Enforcement (FDLE) for a certificate of eligibility. The application fee is $75.00. FDLE will review your application and, if you qualify, they will mail you back the certificate of eligibility, which is valid for one year from the date on the certificate. If you do not qualify, FDLE will mail you a letter explaining the reason for denial.
Once you receive your certificate of eligibility, you must draft and file a petition to the court. This petition must be served to the Office of the State Attorneys, Clerk of Courts, and the Judge’s chambers. The Court will want to see the position of the State, which is represented by an Assistant State Attorneys of your local State Attorneys’s Office. If your petition is properly drafted and the State does not object, you will have an easier time convincing the Judge to grant it. If the State objects, which is often the case, you will have to convince the Judge why he or she should grant your petition over the objection of the State. Most of the time, you will have to appear personally in court to explain why the Judge should seal or expunge your record. Having an attorneys with you can help you navigate the process.
If the Judge in your case grants your petition, your record will either be sealed or expunged. A seal is actually just what it seems – the clerk of courts will physically “seal” (i.e., put tape all around) your file that cannot be broken without a court order. No one other than the exempted entities will be able to see the contents of your file.
Even if you are successful in having your record sealed or expunged, certain agencies will always be able to access that information. For a list of these agencies, please visit the FDLE website.
Any charge can be expunged if the State filed a “no information” on the case. However, once charges have been formally filed the rules change. Some charges never qualify and some cases must be sealed for 10 years prior to being eligible to be expunged.
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