Having a criminal record in Florida can affect your life in a number of ways. It can affect your job, your ability to live in a certain community, and even your ability to participate in your child’s school activities. I sometimes represent the 40-year old mother who was caught stealing a trinket back when she was 18 years old. She may not even have been arrested for it and just paid a fine for the one-time, stupid mistake. Now, more than two decades later, she is being told she can no longer serve on the PTA or attend her daughter’s after-school events!
This article outlines how to seal or expunge a criminal record here in Florida.* The process is not all that difficult, but there are several areas that can hold up the process along the way. A seal or expunction is not a right or guaranteed – and you can only do it once in your lifetime. So if you have a client who has a driving while license suspended charge from when they were 19-years old and with a petit theft charge from when they were 28-years old, you would most likely want to advise that they try to seal or expunge the crime of dishonesty (i.e., the petit theft).
Here is a basic outline on how to get it done.
Not all cases qualify for a seal or expunction. Two factors determine if you can move on to Step Two: (1) the nature of the offense; and (2) the adjudication. Certain offenses do not qualify because they are specifically prohibited by sections 943.0585 through 943.059, Florida Statutes and Chapter 11C-7 of the Florida Administrative Code. If the offense you are trying to seal or expunge is listed anywhere there, you are out of luck (unless you were found not guilty at trial or there is still time to undo your plea to the charge, which is usually 30 days). For those attorneys who do not regularly practice in criminal law, pleas of no contest or guilty to criminal charges can result in one of two manners of adjudication: a formal adjudication of guilt (aka an “adjudication”) or a withhold of adjudication (aka a “withhold”). A withhold is far more favorable because it means that the defendant was not formally adjudicated (or “convicted”) of the offense. Not only does that help with employment applications, but it also permits the person to apply for a seal or expunction of that criminal offense down the line.
Once you have determined that the client’s offense qualifies, they must apply for a certificate of eligibility with the Florida Department of Law Enforcement (FDLE). This will require sending the following to FDLE along with the application and a $75.00 fee: a certified copy of the disposition, and a completed fingerprint card. Note: If you are seeking an expunction, the State Attorney will have to complete a section on the application as well. Then you wait – about four to six months for Tallahassee to process the application. You will either receive a certificate of eligibility that is valid for one year or a letter explaining the deficiency or reason for denial.
If you have successfully obtained a certificate of eligibility, you should start by getting the position of the Office of the State Attorney to see if they oppose the relief sought. You then need to file (1) the petition, (2) an affidavit signed by your client outlining the reasons they are seeking the sealing or expunction, and (3) a proposed order specifying the agencies that should be included along with the clerk.
If the State Attorney’s Office does not object or they take no position on your petition, the court may grant it without the need for a hearing. In any event, the court may require a hearing on the matter to determine whether or not the record should be sealed or expunged. This is where the judge may exercise his or her discretion and deny your client’s petition even if they otherwise qualify. A good practice tip is to be prepared to make compelling argument to the court as to why your client’s petition should be granted. Do not just ask for it because the client is embarrassed by the record or because it may affect his or her ability to get a job in the future. Those are insufficient reasons to petition for a seal or expunction. If there have not been any direct adverse consequences to your client that can be shown to the court, you may have a difficult time convincing the judge as to why the information contained in the record should be hidden from the public.
Once you have the signed order to seal or expunge, you must pay the clerk of courts for their cost to accommodate your request. The fee is correlated to the size of the file and, in my experience, it usually runs somewhere around $100.00. Before getting to this point, however, you should advise your client to obtain certified copies of pertinent documents in the clerk’s system (e.g., the arrest affidavit, witness statements, and case disposition). Once the file is sealed, only a judicial order can open it. And once a file is expunged, it is destroyed and the documents may never be able to be recovered. Either way, it is always a good idea to have certified copies just in case there is any dispute as to what happened in the case later on.
There are other scenarios and possibilities that are not discussed in this article pertaining to sealing and expunging. For example, I have represented clients who were found not guilty at trial on very serious charges. Even though those charges are statutorily prohibited from being sealed or expunged, certain cases may be eligible. I have also represented clients with multiple arrests, all of which were sealed or expunged. Every case depends on the unique characteristics of the underlying charges. Like with most legal issues, the most important thing to remember is that no case is certain one way or the other.
* Important notes: Having a record successfully sealed or expunged applies to records in the possession of the arresting agency and the clerk of court. Any third-party websites that downloaded the information when it was a public record may still charge a fee to remove it from their databases. Furthermore, certain agencies and employers may still request and/or see the criminal record even if a judge ordered the record sealed or expunged (e.g., federal agencies, the military, educational and medical institutions).
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