I’ve got several arrests and/or cases on my record. Can I expunge them all?
Many of the clients that walk through my door (or pick up the phone and call me) want to know if they can have more than one case (or arrest) expunged or sealed. Or better yet, if they can have their entire criminal record—consisting of multiple arrests spread across several years—expunged or sealed. Sadly, much to their chagrin, the answer to those questions is “not usually.” My answer usually provokes a bit of confusion—and understandably so.
In a nutshell, Florida law only allows for the expungement or sealing of one arrest or incident of alleged criminal activity. However, it is possible to expunge or seal more than one arrest or incident of criminal activity, if you can show that the episodes have a sufficient relationship or nexus. This is commonly known as the “nexus requirement.”
History and Purpose of Expungement
For starters, it helps to understand the underlying purpose and policy of Florida’s expungement and sealing laws. “From time immemorial courts have exercised their discretion, on their own initiative or upon motion of the parties, to seal their records from public view wherein the ends of justice may be served.” Johnson v. State, 336 So. 2d 93 (Fla. 1976). Indeed, the Florida Supreme Court has recognized the “value of the expungement statute to society and its innate fairness to people improperly accused.” Id. Florida law recognizes that the expungement and sealing statute grants a substantive right to a defendant and exists (among other reasons) to protect a defendant from having his or her record left open for public inspection in criminal court records. Id. at 95.
The process of expungement and sealing therefore was originally utilized as a means of attaining justice and fairness to those who may have been improperly accused of a criminal act. It was not intended to wipe clean a person’s entire criminal history, but rather to protect someone from the long-lasting consequences of having an open public criminal record pertaining to a crime he or she did not commit.
In Florida, section 943.0585 of the Florida Statutes controls the expunction of nonjudicial criminal history records. 943.0585, Fla. Stat. (2019). The statute creates certain requirements that must be met prior to the expungement process, most notably that the person seeking to have his or her records expunged must apply to the FDLE for a certificate of eligibility. Id. Though the law generally allows for the expunction of only one arrest or incident of criminal activity, an exception can be found in the following excerpt of the statute.
The court may order expunction of a criminal history record pertaining to one arrest or one incident of alleged criminal activity only, except that the court may order the expunction of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the expunction of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not expunge any record pertaining to such additional arrests if the order to expunge does not articulate the intention of the court to expunge a record pertaining to more than one arrest. This section does not prevent the court from ordering the expunction of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity.
943.0585, Fla. Stat. (2019). Thus, the statute does in fact allow the expunction of more than one arrest, but under some rather vague circumstances. Fortunately, this issue has been brought before appellate courts, so we are provided with at least some guidance.
It is possible to expunge or seal more than one arrest or incident of criminal activity, if you can show that the episodes have a sufficient relationship or nexus. This is commonly known as the “nexus requirement.”
The A.B.M. Standard
One of the first appellate courts to address the issue of sealing/expunging multiple arrests or cases, was the Second District Court of Appeals in State v. A.B.M., 742 So. 2d 818, (Fla. 2d DCA 1999). In A.B.M., the defendant had two separate cases. One from 1994 and one from 1995. A.B.M. resolved both of those cases together and received a withhold of adjudication and 4 years or probation—each case to run concurrently. A.B.M. later obtained a certificate of eligibility to seal the 1994 case, and then petitioned the court to seal that case. At a hearing on the petition, A.B.M. asked the court to also seal the 1995 case, despite not having obtained a certificate of eligibility as to that case. The trial court granted the request and the state appealed. Having been decided in 1999, the case fell under section 943.059, Florida Statutes (1997).
In support of his petition, A.B.M. argued the language in 943.059: “The court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.” 943.059, Fla. Stat. (1997). The court disagreed, noting that the two offenses were several months apart and not connected in any way. “We construe that sentence in section 943.059 to apply to additional arrests or charges that stem from one criminal activity or episode where the additional offenses are temporally related or there is some nexus between the offenses.” A.B.M., 742 So. 2d at 820.
So, while the court disagreed with A.B.M.’s argument that his criminal offenses were sufficiently related, what it did was set forth some legal precedent, giving us some insight into what exactly this relationship requires. The language used by the court called for a temporal relationship, or a nexus between the offenses. This has since become known as the A.B.M. standard.
The Dinkins Case
About a year later, in Dinkins v. State, 764 So.2d 693 (Fla. 1st DCA 2000), the First District Court of Appeals further supported the notion that expunging/sealing multiple arrests and charges was contemplated by the legislature. In Dinkins, the defendant was arrested twice in 1993 and charged with a total of twenty-three different offenses that occurred over twenty-one days. Dinkins’ record was otherwise clean, and he obtained a certificate of eligibility from the Florida Department of Law Enforcement for record expungement. Id. at 693. The trial court noted that appellant had been involved in multiple incidents over multiple days and concluded that it lacked jurisdiction to consider the petition. The case fell under section 943.059, Florida Statutes (1997), so once again the court focused on the language in 943.059, which stated that “the court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.” 943.059, Fla. Stat. (1997).
When the case went before the First District Court of Appeals, the appellate court disagree with the trial court’s reasoning that it lacked jurisdiction to review the petition involving multiple arrests over multiple days.
In our view, the statute does not contain a blanket prohibition against record expungement where a defendant has committed multiple criminal acts. The statute uses the phrase “any of the acts stemming from the arrest or alleged criminal activity,” suggesting that the Legislature contemplated multiple criminal acts. The statute also speaks to “additional arrests directly [related] to the original arrest.” Accordingly, the fact of multiple arrests does not foreclose a record expungement.
Dinkins, 764 So.2d at 693. The appellate court found that the trial court should have decided whether the multiple arrests/cases met the A.B.M. standard. Id. at 694. The action was vacated and remanded for further proceedings. Id.
In summation, under the precedent set forth above, multiple arrests or cases can be expunged or sealed together, only if a judge agrees that there is a sufficient nexus or temporal relationship (between the cases) so as to satisfy the A.B.M. standard. It is often not a black and white issue, and the deciding judge is given broad discretion in making this determination. Fortunately, this legal standard does leave the door open for arguing that multiple arrests or cases can be expunged or sealed in many different circumstances or scenarios.
If you have questions about this issue, or if you are seeking an attorney for expungement or sealing in Florida, please feel free to contact the Law Office of William B. Wynne. We offer free consultations.