The Differences Between Expungement vs. Sealing in Florida

Understanding the Legal Distinctions Between Expungement and Record Sealing in Florida

Many find it challenging to differentiate between the expungement and sealing processes in Florida, and understandably so. At first glance, these procedures seem more alike than different. Both restrict or prevent public access to a criminal history record and grant individuals the legal right to deny or not acknowledge the record’s existence. However, the devil is in the details. While they largely mirror each other in purpose and function, the distinctions between expungement and sealing in Florida emerge in areas such as their application and eligibility requirements, mandatory disclosure requirements, and the level of privacy and security they provide.

To delve deeper, let’s start by defining these terms. Section 943.045(16), Florida Statutes (2022), defines expungement as “the court-ordered physical destruction or obliteration of a record or portion of a record by any criminal justice agency having custody thereof.” The term ‘physically destroyed’ means the complete removal of records from the databases that would typically contain such information.¹ The expungement process is enumerated in section 943.0585, Florida Statutes.

On the other hand, section 943.059, Florida Statutes, outlines the court-ordered sealing of criminal history records, a process where the record is not eliminated but is hidden from public view. Section 943.045(19) defines sealing as “the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.”²

Eligibility Criteria: How Florida’s Expungement and Sealing Laws Differ

The qualifications for sealing and expunging a criminal record in Florida are not identical; your eligibility for each largely hinges on the resolution of the criminal case you’re looking to have either sealed or expunged.

Florida Expungement Eligibility: To qualify for expungement, typically, the charges against an individual should either have been dismissed, dropped, not pursued, or resulted in an acquittal following a trial.
Florida Record Sealing Eligibility: In situations where charges were not dismissed or dropped, sealing is the appropriate course of action where adjudication was withheld by the court. This is typically the case when an individual, unable to secure a dismissal of their charges, enters a plea of either ‘guilty’ or ‘no contest,’ and the court agrees to withhold adjudication. Thus, even if an individual falls short of the standards for expungement, sealing remains a viable alternative, provided all other qualifications are met.

Eligibility Requirements for Both Processes

Limitation on Prior Convictions: If you have ever been adjudicated guilty or convicted of a criminal offense in Florida, you are ineligible for both expungement and sealing. A background check conducted by the Florida Department of Law Enforcement (FDLE) will reveal any prior convictions. However, as per a legal amendment effective from October 1, 2019, only convictions within Florida will disqualify you. Convictions outside Florida are generally not a barrier.
One-Time Opportunity: Florida law offers only one chance to either expunge or seal a criminal record. If you have availed yourself of either option previously in Florida, you are automatically disqualified from doing it again. However, prior actions in other states do not affect your eligibility in Florida.
Current Legal Obligations: If you have pending criminal charges or are currently under any form of court supervision—such as probation or community control—you are ineligible for either procedure.

Contrasting the Application Processes for Expungement vs. Sealing in Florida

While the initial application processes for sealing and expunging criminal records in Florida are largely identical, there’s a crucial additional step required for expungement. For expungement, the application must first be submitted to the State Attorney’s Office. This preliminary step is critical, as it ensures that the necessary written certified statement on page two of the application is properly completed by the State Attorney’s Office before being sent to the FDLE for review.

Once the State Attorney’s Office has dutifully completed this portion, it’s then up to the applicant to promptly retrieve the application. Only after retrieval can the application be submitted to the FDLE for their review and final approval.

This extra procedural requirement can, understandably, extend the duration of the expungement process. The additional time is contingent upon the efficiency of the State Attorney’s Office in completing their portion and the applicant’s diligence in retrieving the application. Depending on these factors, this phase could lengthen the overall process by a few weeks or, in rare instances, a few months.

Disclosure Requirements: How Expungement and Sealing Differ in Florida

Finally, while both processes allow you to lawfully deny or fail to acknowledge the existence of the expunged or sealed record in most circumstances, it’s crucial to be aware that exceptions exist for both processes. However, sealed records have a few additional disclosure requirements that are not applicable to expunged records. Specifically, if you have a sealed record, you must disclose it when purchasing a firearm or applying for a concealed carry permit. Conversely, if your record has been expunged, you are not obliged to reveal it under these same circumstances.

When Must You Disclose: Exceptions in Florida for Expunged vs. Sealed Records

Both sealed and expunged records must be disclosed in the following circumstances:

You are seeking employment with a criminal justice agency.
You are a defendant in a criminal case.
You are seeking further expungement or sealing under Florida law.
You are applying for membership with the Florida Bar
You are seeking employment with government health and welfare agencies.
You are seeking government employment in education.
You are seeking insurance licensure from the Division of Insurance Agent and Agency Services in the Department of Financial Services.
You are seeking to become a legal guardian.

Special Disclosure Rules for Sealed Records in Florida

Sealed records (but not expunged records) must be disclosed in two additional circumstances:

You are attempting to purchase a firearm.
You are applying for a concealed weapons permit.

It’s essential to note that while sealed records carry additional disclosure requirements, they do not automatically preclude individuals from purchasing firearms or obtaining a concealed carry permit in Florida.

What Happens to the Records? Contrasting Sealed vs. Expunged Records in Florida

One of the most pivotal differences between expungement and sealing in Florida lies in the ultimate fate of the criminal records in question. In comparing the expungement of criminal records with the process of sealing them, it’s crucial to note that each method has its own distinct impact on the accessibility of those records.

A. Sealed Records in Florida: Confidential but Intact

Sealing a criminal record in Florida doesn’t result in its destruction. Instead, the record becomes highly restricted from general public access. According to section 943.059, Florida Statutes, sealed records remain in existence but become confidential. In other words, while the records are still technically “there,” they are far less accessible than they would be otherwise.

B. Expunged Records in Florida: Erased from Public View

When a criminal record is expunged in Florida, it is effectively destroyed and removed from public access. All agencies involved are obligated to physically destroy or obliterate the records. The only exception is a confidential copy retained by the Florida Department of Law Enforcement (FDLE). Unlike sealed records, which remain but are less accessible, expunged records are eradicated entirely.

Florida Law: Who Can Access Your Sealed vs. Expunged Criminal Records

While both sealing and expungement serve to limit public access to your criminal history, it’s important to note that specific rules for access differ considerably between the two. Different entities hold legal authority to view these restricted records, depending on whether the records have been sealed or expunged.

A. Entities Authorized to Access Sealed Criminal Records in Florida

While the primary purpose of sealing a record is to restrict its general accessibility, it’s crucial to understand that some entities still have the legal authority to view these sealed records. These exceptions can be found in Section 943.059(6), Florida Statutes, and fall into three main categories: agencies screening for employment, agencies conducting licensing reviews, and exceptions for other general reasons.

Florida Agencies Granted Access to Sealed Records for Job Screening

Criminal Justice Agencies: Access granted if you’re seeking employment with a criminal justice agency.
Department of Children and Families, Division of Vocational Rehabilitation within the Department of Education, Agency for Health Care Administration, Agency for Persons with Disabilities, Department of Health, Department of Elderly Affairs, Department of Juvenile Justice: Access granted if you’re seeking employment or a contract in a sensitive position involving direct contact with children, the disabled, or the elderly.
Department of Education, District School Boards, Charter Schools, Private or Parochial Schools, Local Governmental Entities Licensing Child Care Facilities: Access granted if you’re seeking employment with these educational institutions or entities that license childcare facilities.

Florida Agencies Permitted to View Sealed Records for Licensing

The Florida Bar: Access granted if you’re a candidate for admission to The Florida Bar.
Division of Insurance Agent and Agency Services within the Department of Financial Services: Access granted if you’re seeking a license from this division.
Division of Licensing within the Department of Agriculture and Consumer Services: Access granted if you’re seeking a license to carry a concealed weapon or concealed firearm.

Other Scenarios Where Sealed Records May Be Accessed in Florida

Criminal Justice Agencies: Access granted for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law.
Judges in State Courts: Access granted to assist them in their case-related decision-making responsibilities.
Guardianship Appointments: Access granted if you’re seeking to be appointed as a guardian.

B. Entities Authorized to Access Expunged Criminal Records in Florida

While the primary goal of expunging a record is to eliminate it completely, there are specific instances where certain agencies or entities are alerted to the existence of an expunged record. These exceptions are outlined in section 943.0585(6) of the Florida Statutes.³ It’s important to note that being alerted does not grant these agencies full access to the record; instead, additional permission, usually in the form of a court order, is needed to view the content of an expunged record.

Florida Agencies Granted Access to Expunged Records for Job Screening

Criminal Justice Agencies: Access granted if you’re seeking employment with a criminal justice agency.
Department of Children and Families, Division of Vocational Rehabilitation within the Department of Education, Agency for Health Care Administration, Agency for Persons with Disabilities, Department of Health, Department of Elderly Affairs, Department of Juvenile Justice: Access granted if you’re seeking employment or a contract in a sensitive position involving direct contact with children, the disabled, or the elderly.
Department of Education, District School Boards, Charter Schools, Private or Parochial Schools, Local Governmental Entities Licensing Child Care Facilities: Access granted if you’re seeking employment with these educational institutions or entities that license childcare facilities.

Florida Agencies Permitted to View Expunged Records for Licensing

The Florida Bar: Access granted if you’re a candidate for admission to The Florida Bar.
Division of Insurance Agent and Agency Services within the Department of Financial Services: Access granted if you’re seeking a license from this division.

Other Scenarios Where Expunged Records May Be Accessed in Florida

Guardianship Appointments: Access granted if you’re seeking to be appointed as a guardian.

In summation, specific entities in Florida retain the authority to access sealed records, primarily for purposes such as employment screening, licensing, and certain legal proceedings. In contrast, with expunged records, certain agencies can only be alerted to their existence but accessing the content directly typically requires a court order. Expungement offers a higher degree of protection since it largely ‘erases’ the record from public view, whereas sealing simply restricts access. Thus, for individuals seeking the maximum protection of their privacy and limited exposure of their past, expungement would be the more robust option.

Final Thoughts: Navigating the Maze of Expungement and Sealing in Florida

Understanding the intricate distinctions between expungement and sealing under Florida law is crucial for individuals seeking to navigate the complexities of the state’s criminal justice system. While both processes aim to offer a form of relief from the stigmatizing effects of a criminal record, they are not the same. From eligibility requirements and application procedures to the level of privacy and security that is conferred upon completion, expungement and sealing, each have their own set of rules and consequences.

If you’re considering either of these legal avenues, it’s essential to consult with an experienced Florida sealing and expungement attorney, to evaluate your individual circumstances and guide you through the multifaceted legal terrain. Call us today at 813-532-5057 for a free consultation.