The following are some of the most commonly asked questions in Ft. Lauderdale regarding expungement and record sealing, and the steps that an experienced Ft. Lauderdale expungement lawyer can take to assist. For more specific information pertaining to your case, schedule a consultation today.
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 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.
When a criminal history record is sealed, the public will not have access to it. 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.
When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself without a court order. Such entities would receive only a caveat statement indicating that “Criminal Information has been Expunged from this Record“.
Once an order has been issued by the court of competent jurisdiction to seal or expunge your criminal history record and a certified copy of this order has been received by the FDLE, it will be complied with in accordance with state statutes. If the order is not in compliance with applicable law, however, it will be returned to the State Attorney to be set aside by the court. You or your attorney will be given notice of this action, if this occurs.
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 part of the record subject, is not considered a prior expunction or sealing for this purpose. By law, s. 943.0582(8), Florida Statutes, a juvenile diversion expunge does not prevent the record subject from seeking a judicial expunction or sealing under s. 943.0585 or s. 943.059, Florida Statutes.
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 or expunction and the application will be denied.
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.
Unless the pardon indicates on its face that it entitles the record subject to seal or expunge his or her criminal history record, the granting of a full pardon does not remove any condition of ineligibility for sealing or expunging a criminal history record imposed by the disposition of the pardoned offense. See R.V.L.V.
Juvenile criminal history records may be sealed or expunged in the same manner as adult criminal history records, by applying for a certificate of eligibility and, if eligible, petitioning a court for sealing or expunction. However, the following considerations are relevant to the decision whether to seek the judicial sealing or expunction of a juvenile criminal history record. Prior to October 1, 1994 (for felonies), and July 1, 1996 (for specified misdemeanors), juvenile arrest records were not maintained by FDLE in the criminal history record system and would not be available to the general public unless the juvenile were treated as an adult. Juvenile records are subject to an abbreviated retention schedule, if certain qualifications are met, which results in the automatic expunction of the record after a specified period, under s. 943.0515, Florida Statutes. Juvenile defendants who successfully complete a qualified diversion program, as set out in s. 943.0582, Florida Statutes, may be eligible for expunction of their record as the term is defined therein. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedure, which are similar to those for adults, are found in s. 943.059 and s. 943.0585, Florida Statutes. The treatment of juvenile criminal history records maintained by other agencies and by the courts is a matter on which the applicant may wish to seek legal advice.
If the other record 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.
If the record is eligible and the court grants relief, FDLE will comply with the certified court order and seal or expunge the appropriate criminal history record. Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency or agencies involved with your case. The notification letter is to inform the agencies that FDLE has received and has complied with the order in accordance with the seal or expunge statutes.
FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV). These databases are searched to determine the eligibility of an individual to have a criminal history record sealed or expunged.
A criminal offense such as DUI, Driving While License Suspended/canceled/revoked, or reckless driving may appear in the DHSMV database even though it may not be entered in the criminal history record system maintained by FDLE. Although non-criminal traffic offenses (such as careless driving) have no effect on eligibility to seal or expunge a criminal history record, an adjudication of guilty for any criminal offense renders the record ineligible for either form of relief.
If the record is eligible and the court grants relief, the Clerk of the Court by statute is responsible to certify a copy of the court order to the State Attorney’s Office or the Statewide Prosecutors Office and the arresting agency or agencies. The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, these agencies may include the Department of Corrections, Teen Courts, and Department of Juvenile Justice.
Disqualifying Charges for Expunction/Sealing
A request for a certificate of eligibility for an expunction or sealing of a criminal history record will be denied if the defendant was found guilty or pled guilty or nolo contendere, even if the adjudication of guilt was withheld, on any violation of the following:
Offenses listed in S.907.041, F.S.
All references are from Florida Statutes
Reasons an Application for Certification of Eligibility to Seal or Expunge a Criminal History Record will be Denied
Pursuant to Sections s.943.0585 and s.943.059, Florida Statutes, a Certificate of Eligibility to expunge or seal a criminal history record cannot be issued under any of the following circumstances:
Entities That Get Sealed And Expunged Records
The subject of a criminal history record sealed or expunged under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed or expunged record, except when the subject of the record:
When the record is expunged the agency will only receive the subject’s demographic information and a caveat statement stating that criminal history information has been expunged, but will be unable to receive the details.
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