EXPUNGEMENT IN FLORIDA
EXPUNGEMENT IN FLORIDA
One of my favorite particular areas of practice, is expungement in Florida. There is something special about making that final phone call, to tell a client that his or her case has been officially expunged, that the long waiting process is finally over. And, sharing in their celebration, experiencing the weight falling off their shoulders. Perhaps, second only to securing an acquittal for a client, after a long trial, when the belief in their innocence is unwavering. It’s a rewarding experience, it provides them with a lifelong benefit, and it is very affordable.
The bottom line, is that expungement in Florida is a complicated process. I once knew an attorney, an old colleague of mine, that expunged an old high school arrest off his record during his third year of law school. Confident in his legal knowledge, and being a law student, he did it himself. And he still made a mistake! The moral of the story is that expunging and sealing a record is a tricky, complex process. So, while it is possible to do it yourself, without a lawyer, most legal professionals will advise against that. And I promise, they’re not saying that just to get your money.
Since I started my practice, I’ve done over 200 expungements/sealings, throughout counties all over Florida. From up in the panhandle near Alabama to Duval County in Jacksonville, and all the way down to Miami-Dade, Broward, and even Key West. Since I am a small one-lawyer firm, I don’t have the same expenses and overhead as other firms, and I’m therefore able to offer a competitive price.I don’t charge for initial consultations or phone calls, so please, feel free to give me a call. I’d be happy to help you clear your record.
THE PROCESS OF EXPUNGEMENT-SEALING
Do you qualify?
The first question asked invariably by roughly 95% of my clients, is whether they qualify for expungement in Florida. Indeed, this is the first thing you need to consider. I’d estimate that roughly about 80% of the clients that call my office to inquire about expungement or sealing are not eligible.
While determining eligibility is sometimes simple, it can also be ambiguous, and sometimes complex. An accurate assessment of eligibility requires legal research skills, legal knowledge, and familiarity with court records and other legal documents.
- No prior convictions. You cannot have been previously convicted (adjudicated guilty) for any criminal offense anywhere. This means that even if you were found guilty of a petty offense over thirty years ago, you will not be allowed to expunge or seal your record
- No prior Sealing or Expungement in Florida. You cannot have previously had your records sealed or expunged in Florida. (Other states are okay.) In Florida, this is a one shot deal. You may have your record sealed or expunged only once.
- You cannot be currently under court supervision, community control, probation, etc.
- Certain offenses cannot be Sealed. If you received a withhold of adjudication for your offense, your offense isn’t one of the crimes listed below. (See the list of crimes at the bottom of this page.) However, keep in mind, that if the charges were dismissed, or never filed, you can expunge the record even if the crime appears on the list below.
- Only Florida criminal records can be Sealed or Expunged. The Law Office of William B. Wynne, P.L.L.C. can only expunge or seal criminal arrest records that originated in Florida. Each state has its own laws pertaining to the expungement/sealing process. If your arrest record pertains to charges that occurred in another state, you will need to contact an attorney licensed in that state
Despite popular opinion, a criminal arrest record does not simply disappear over time. It doesn’t matter if the charges were dismissed against you, or if you were acquitted at trial. The fact that you were arrested or charged with a criminal law violation will remain public record permanently unless and until you apply for expungement in Florida. Even without a conviction, a criminal case can cause people serious problems with employment, housing and other important areas. In today’s modern age of high-speed information, it is becoming increasingly popular and economically viable for both public and private parties to conduct background checks.
A criminal record can be expunged (Florida Statute 943.0585) when it was dismissed or dropped, or if charges were never officially filed—known as a “no information.” On the other hand, a criminal record can be sealed (943.059), if adjudication was withheld, and if it is not included in a list of crimes forbidden under Florida Law—another trap to look out for. There is quite a long list of crimes that cannot be sealed, even if adjudication is withheld. In addition, an applicant can only expunge/seal once in their lifetime within the State, and only one arrested record can be sealed/expunged. Multiple cases can sometimes be sealed or expunged, but only if they arose out of the same set of facts or criminal conduct, or otherwise have a temporal or causal connection. This can be somewhat of a grey area and requires discretion.
Having your record sealed or expunged means that the court will order your criminal record to be sealed or expunged, and therefore confidential from the public, future employers, or a public background search, with certain limitations. And, what’s more, the law allows the applicant to lawfully deny the existence of the expunged or sealed record. In theory, it’s as if it never happened. However, the existence—but not necessarily the specific contents—of a criminal record must still be disclosed, under a few exceptional circumstances outlined under Florida Statutes sections 943.0585 and 943.059.
Exceptions to the Rule of Disclosure
The following is a list of exceptions. These are known as exceptions to the rule of disclosure. You will still be required to disclose the existence of a sealed or expunged record under these circumstances:
- Is a candidate for employment with a criminal justice agency;
- Is a defendant in a criminal prosecution;
- Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.059;
- Is a candidate for admission to The Florida Bar;
- Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
- Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses childcare facilities;
- Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services; or
- Is seeking to be appointed as a guardian pursuant to s. 744.3125.
A sealed record (as opposed to an expunged record) has two more exceptions:
- Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;
- Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.
If you are eligible, expungement in Florida will prevent others from discriminating against you based on your criminal history. What exactly does this entail? We start by reviewing your criminal history and then applying for eligibility through the Florida Department of Law Enforcement. After receiving a certificate of eligibility from the F.D.L.E., we then petition the Court to seal or expunge your arrest record. Once this process is complete, and your record is officially expunged, you may lawfully deny or fail to acknowledge anything having to do with the criminal case.
There are 4 to 5 steps in the process depending on whether you are seeking an expungement or a sealing. An expungement involves 5 steps, while a sealing involves 4 steps. Thus, a sealing can be concluded a little faster than an expungement—having one less step.
First, the application must be properly assembled, including notarized documents, fingerprints, specific charges and correct dates, complete demographic information, and certified copies of correct court documents.
Second, for expungement applications only, State Attorney approval must be obtained. Sealing applications can skip this step and go straight to the next.
Third, once State Attorney approval is obtained—if seeking expungement—the application must be submitted to the Florida Department of Law Enforcement. This is the longest stage of the process, and depending on the wait time, it can take anywhere from six months to nearly a year to get a certificate of eligibility from the FDLE. Unfortunately, there is not expedited option available, and applications are taken and reviewed on a first-come, first-served basis.Fourth, once the certificate of eligibility is received, the final court pleadings must be assembled and filed with the correct court, using the correct language, and properly noticing all interested parties. Further, local court procedures must be followed which can include setting a hearing, filing a notice of hearing, organizing the calendar with opposing counsel, and ensuring everything is done properly.
Finally, a proposed order must be submitted to the judge, and must be filled out in detail, completely and correctly, to be forwarded to all the relevant agencies for completion of the expungement or sealing.
Crimes that cannot be sealed even if adjudication was withheld:
- 93.135 Sexual misconduct prohibited; reporting required
- 394.4593 Sexual misconduct prohibited; reporting required
- 787.025 Kidnapping; Custody Offenses; Human Trafficking; And Related Offenses
- 800.04 Lewdness; Indecent Exposure
- 810.14 Burglary and Trespass
- 817.034 Florida Communications Fraud Act; Scheme to Defraud; Organized Fraud
- 825.1025 Abuse, Neglect, And Exploitation Of Elderly Persons And Disabled Adults
- 827.071 Sexual performance by a child
- 847.0133 Protection of minors; prohibition of certain acts in connection with obscenity;
- 847.0135 Computer pornography; traveling to meet a minor
- 847.0145 Selling or buying of minors
- 893.135 Drug Trafficking
- 916.1075 Sexual misconduct prohibited; reporting required
- 775.21 The Florida Sexual Predators Act.
- 943.0435 Sexual offenders required to register with the department
And Also Violations enumerated in Section 907.041:
- Aggravated assault
- Aggravated battery
- Illegal use of explosives
- Child abuse or aggravated child abuse
- Abuse or Aggravated Abuse of an elderly person or disabled adult
- Aircraft piracy
- Sexual battery
- Lewd, lascivious, or indecent assault or act upon or in presence of a child under 16.
- Sexual activity with a child, 12-17 years, by person in familial or custodial authority.
- Burglary of a dwelling;
- Stalking and aggravated stalking;
- Act of domestic violence as defined in s. 741.28;
- Home invasion robbery;
- Act of terrorism as defined in s. 775.30;
- Manufacturing any substances in violation of chapter 893;
- Attempting or conspiring to commit any such crime; and
- Human trafficking.
So, unfortunately, if you were charged with one of the above offenses, you will not be able to have it sealed, even if adjudication was withheld. Now, keep in mind, if the case was dismissed, dropped, or if charges were never filed, you can have it expunged, regardless of what it was. You could be charged with premeditated murder, but if the charges are dropped, you can petition to have it expunged. The list above applies only to cases one is seeking to have sealed.