Expungement Qualifications, Rule of Disclosure

Florida Expungement and Sealing 101: A Guide to Rewriting Your Story

Understanding Expungement and Sealing in Florida

For those that were arrested or charged with a crime, the permanent repercussions can linger like a shadow. Fortunately, there is a way to ‘erase’ or ‘conceal’ that shadow, providing you with a new lease on life. Expungement and sealing laws in Florida are designed to offer just that—an opportunity to move forward unburdened.

Yet, navigating the legal maze to successfully expunge or seal your Florida criminal history can be challenging and fraught with legal complexities, even for those familiar with the justice system. Mistakes in the application process or failure to adequately substantiate your petition can lead to delays or outright denial. While it is technically possible to go through the process of sealing or expunging a criminal record in Florida without an attorney, the complexity and potential pitfalls make legal representation highly advisable.

Contrary to prevailing beliefs, criminal arrest records do not vanish with the passage of time. This holds true even if charges against you were dismissed or you were acquitted following a trial. The mere existence of a criminal record can still create substantial hurdles in securing employment, obtaining housing, and in other critical aspects of life. In our digital age, where information is easily accessible with unprecedented speed, background checks have become both increasingly accessible and economically feasible for public and private entities alike. Given this reality, consulting with a Florida expungement or sealing attorney has become indispensable.

Behind Closed Doors: How Florida Manages Criminal Records

In Florida, criminal history information is collected and stored in two databases managed by the Florida Department of Law Enforcement (FDLE): the Florida Crime Information Center (FCIC) and the Criminal Justice Information Services (CJIS). FCIC is primarily a state-level database containing criminal records, outstanding warrants, stolen property, and missing persons information specific to Florida. It is generally designed for internal use by law enforcement agencies within the state. CJIS, on the other hand, is a more comprehensive repository. It holds a wide range of criminal justice information, including but not limited to criminal history, fingerprint data, and sex offender registry information. CJIS serves a broad range of users, including law enforcement agencies, the legal community, and various sectors that conduct background checks.

Importantly, both the FCIC and CJIS periodically transmit this stored information to a federal-level database known as the National Crime Information Center (NCIC). Managed by the FBI, NCIC serves as a central database for criminal records and other law enforcement-related information from all states, making it a key source for national background checks. Thus, if you’re a Florida resident, your criminal history can and will become part of the NCIC database, where it becomes accessible at a national level.

Fortunately, once a record is successfully expunged or sealed in Florida, the data related to that record in both the FCIC and CJIS becomes restricted from public access. This information is then disseminated via the FDLE to the NCIC at the federal level, resulting in the removal of the record from national databases.

Expungement and Sealing Definitions

At its core, expungement means that your criminal record is not just sealed, but entirely destroyed. Expungement, as defined in section 943.045(16), Florida Statutes, is “the court-ordered physical destruction or obliteration of a record or portion of a record by any criminal justice agency having custody thereof.” § 943.045(16), Fla. Stat. (2022). Expungement is governed by section 943.0585. Any criminal record—regardless of how severe—can be expunged if it was dropped, dismissed, not pursued, or resulted in an acquittal following a trial. § 943.0585, Fla. Stat. (2022).

Conversely, court-ordered sealing of records involves a more nuanced form of concealment. While it doesn’t destroy your criminal record, it puts it under heavy lock and key. As defined in section 943.045(19), sealing is “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.” § 943.045(19), Fla. Stat. (2022). The process of sealing criminal history records is governed by section 943.059. A criminal record can be sealed when adjudication was withheld. § 943.059, Fla. Stat. (2022).

Benefits of Expungement and Sealing

When a court mandates the sealing or expungement of your criminal history, it’s not just a clerical modification—it’s a gateway to a fresh start. Achieving expungement or sealing liberates you to move forward unencumbered by prior missteps.

The Removal and Destruction of Records

Expungement and Sealing will restrict the public’s ability to access your criminal history. This action ensures that your prior criminal history is either destroyed or shielded from the general public, safeguarding you against inquiries by potential employers, inquisitive neighbors, or even prospective romantic partners. Further an expunged or sealed record will give you a substantial layer of protection against conventional background checks.

Once a court approves your request for expungement or sealing, the certified copies of the judicial order are forwarded to all pertinent authorities. This typically includes the county sheriff, State Attorney’s Office, the arresting agency, and the Florida Department of Law Enforcement, among others. These agencies are mandated by law to act in accordance with the sealing or expungement orders. However, it’s worth noting that private entities can’t be legally forced to erase or conceal records they have lawfully acquired, a subject that merits its own discussion.

Non-Disclosure: The Legal Art of Omission

One of the most liberating aspects of having your record sealed or expunged is the lawful right to deny or fail to acknowledge the arrest and criminal history record that was sealed or expunged. This offers an unparalleled level of freedom, allowing you to seek employment opportunities, restore your standing in the community, and enhance your overall quality of life. However, this freedom isn’t absolute. Certain situations—like applying to become a member of the Florida Bar or seeking employment within the criminal justice system, among others—will still require you to disclose your criminal history, despite its sealed or expunged status. These are recognized as exceptions to the general rule of non-disclosure. This topic along with all the enumerated exceptions are explored in the subsequent sections that follow.

Additional Benefits

Apart from the primary legal benefits above, sealing or expunging your criminal record offers a host of other advantages that can positively impact multiple facets of your life. For instance, it can ease the way when you’re seeking rental housing or applying to educational programs, both of which often require background checks. An expunged or sealed record also improve your eligibility for professional certifications and licenses, a necessity in fields like healthcare and real estate. Moreover, having a clean slate can simplify international travel and visa application processes, although it’s always advisable to consult with immigration experts for specific advice. In essence, choosing to seal or expunge your criminal record opens a myriad of doors that extend far beyond the immediate legal realm, enriching your overall quality of life.

The Fine Print: Differentiating the Rules

Both expungement and sealing are remarkably similar in that they both achieve the same general outcome of removing your record from public view and granting you the ability to lawfully deny its existence. However, while these two procedures share many similarities, there are some important differences.

Different Application and Eligibility Requirements

Expungement typically takes a little longer due to the additional step in the application process of obtaining approval from the state attorney before the initial application can be sent to the FDLE for processing. Sealing can often be expedited as it doesn’t require this additional step. These two procedures also differ in their eligibility requirements. To qualify for expungement, your criminal case must have been dropped, dismissed, not pursued by the prosecutor, or resulted in an acquittal after a trial. Sealing, on the other hand, is an option for individuals who may not have had their charges dismissed or dropped but did have adjudication withheld by the court. This typically happens when an individual tenders a plea of either “guilty” or “no-contest” and the court agrees to withhold adjudication.

Vanished or Vaulted: What Happens to the Records

Perhaps the biggest difference between these two legal mechanisms involves what happens to criminal records after they have been expunged or sealed. When a record is sealed, it is essentially made invisible to the general public but still exists within the legal system. It’s like putting your criminal history in a locked vault: while it’s out of sight, it’s not entirely out of reach. In the eyes of the law, these records are still accessible for certain governmental or judicial purposes. This is crucial because, in some exceptional circumstances, a sealed record could be “unsealed” if a court orders it, although such instances are rare.

Expungement, on the other hand, is akin to wiping the slate clean—almost. Your criminal records are physically destroyed, making them inaccessible to virtually all searches. One solitary copy is retained by the Florida Department of Law Enforcement, and it’s sealed tightly under extensive security measures. This archival copy can only be accessed by specific law enforcement agencies under extraordinary conditions. The finality of expungement means that the records are obliterated from most databases, affording you an even higher level of privacy and assurance.

In essence, while sealing is like putting your records in a high-security vault, expungement is akin to shredding them, albeit with a single, heavily guarded copy retained. Despite these nuances in privacy and protection levels, for the vast majority of prospective clients, both processes achieve the primary goal—hiding your criminal record from public inspection and most typical background checks.

Differences Pertaining to Mandatory Disclosure

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. § 943.059(6)(b), Fla. Stat. (2022). Conversely, if your record has been expunged, you are not obliged to reveal it under these same circumstances.

Assessing Your Eligibility

Eligibility is the cornerstone for anyone considering expungement or sealing in Florida. Indeed, the first and most pivotal question to answer is: “Do you qualify?” Unfortunately, many individuals who consult our office find that they do not meet the state’s eligibility criteria. Given that eligibility can be straightforward in some cases and complex in others, it’s crucial to understand the requirements thoroughly. Moreover, interpreting and determining your legal eligibility often demands a nuanced understanding of law and a careful review of court records, which makes consulting a Tampa expungement lawyer highly advisable.

Qualifications for Expungement vs. Sealing

The eligibility criteria for expunging your criminal record in Florida differ from those for sealing it, and your qualification for either option is largely dependent on the specific outcome of the criminal case you wish to have sealed or expunged. Expungement is a legal avenue generally available to individuals for whom criminal charges were either dropped, dismissed, not pursued by the prosecutor, or resulted in an acquittal after a trial. In contrast, record sealing may be an appropriate remedy for those who did not secure a dismissal but instead received a withhold of adjudication from the court. This withhold of adjudication typically arises in situations where the accused enters a plea of “guilty” or “no contest,” and the court agrees to withhold adjudication.

  1. Florida Expungement Eligibility: Your criminal case must have been dropped, dismissed, not pursued by the prosecutor, or resulted in an acquittal after a trial.
  2. Florida Record Sealing Eligibility: Charges might not have been dismissed but adjudication was withheld by the court.

Requirements and Disqualifying Factors

It is essential to understand that eligibility for expungement or sealing criminal records in Florida is by no means a guarantee; there are several qualifications (and disqualifications) under the law that one must meet.

The following is a list of factors that can disqualify you from being eligible to expunge or seal your Florida criminal history:

  • No Prior Florida Convictions: If you have ever been adjudicated guilty or convicted of any criminal offense, regardless of how long ago, you are ineligible for expungement or sealing. When you apply for a certificate of eligibility, the Florida Department of Law Enforcement will conduct a background check. The FDLE background check will uncover any prior convictions in the state of Florida. To put it simply, you cannot have any prior criminal convictions. Notably, as of October 1, 2019, an amendment to the law specifies that only convictions that took place within Florida will disqualify you. Convictions that occurred outside of Florida are not a problem. Juvenile criminal records usually don’t have an impact on eligibility, but there are some exceptions.
  • No Prior Florida Sealing or Expungement: Florida law is stringent in that it allows only one opportunity for an individual to either seal or expunge their criminal. If you have previously expunged or sealed your record in Florida, you are automatically ineligible from doing so a second time. Notably, actions related to expungement or sealing in other states won’t affect your status here. Accordingly, a record expunged or sealed in another state won’t prevent you from seeking relief in Florida. Under certain limited circumstances, it is possible to seal or expunge multiple cases in Florida, however this is a very rare exception.
  • No Pending Criminal Charges or Court Supervision: If you have pending criminal charges or are currently under any form of court supervision—be it probation, community control, or similar legal restrictions—you are disqualified from pursuing expungement or sealing in Florida.
  • Certain Offenses Cannot be Sealed: Certain offenses are categorically non-sealable, even if adjudication has been withheld. These are explicitly listed under section 943.0584, Florida Statutes. § 943.0584, Fla. Stat. (2022). However, it’s crucial to note that if the charges against you were dismissed or never filed, your record may still be expunged even if it pertains to an offense enumerated in the aforementioned statute. This is covered in detail in the next section.
  • Only Florida Criminal Records Can Be Sealed or Expunged: Our firm is limited to the practice of law within the State of Florida. Each state has its own laws pertaining to expungement and sealing of criminal history information emanating within its jurisdictional boundaries. Accordingly, if you are seeking to expunge or seal a criminal record pertaining to charges that occurred outside the state of Florida, you will have to consult an attorney licensed in that jurisdiction.

Florida Crimes That Cannot Be Sealed

The State of Florida has explicitly outlined a list of offenses that are ineligible for sealing, irrespective of whether adjudication was withheld. These offenses are listed in section 943.0584, Florida Statutes. Below is an illustrative list of such offenses, but it is advisable to consult the statute for the most comprehensive and updated information.

  • Certain sexual misconduct offenses
  • Illegal use of explosives
  • Terrorism
  • Murder
  • Manslaughter or homicide
  • Domestic assault or domestic battery
  • Aggravated assault
  • Felony battery, domestic battery by strangulation, or aggravated battery
  • Stalking or aggravated stalking
  • Luring or enticing a child
  • Human trafficking
  • Kidnapping or false imprisonment
  • Sexual Battery and related offenses
  • Procuring a person less than 18 years of age for prostitution
  • Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
  • Arson
  • Burglary of a dwelling
  • Voyeurism or video voyeurism
  • Robbery or robbery by sudden snatching
  • Carjacking
  • Home-invasion robbery
  • A violation of the Florida Communications Fraud Act
  • Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
  • Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person
  • Child abuse or aggravated child abuse
  • Sexual performance by a child
  • Offenses committed by public officers and employees in chapter 839
  • Certain acts in connection with obscenity
  • Computer pornography and related offenses in chapter 847.0135
  • Selling or buying of minors
  • Aircraft piracy
  • Manufacturing a controlled substance
  • Drug trafficking
  • Any violation specified as a predicate offense for registration as a sexual predator or sexual offender, without regard to whether that offense alone is sufficient to require such registration.

See § 943.0584(2)(a)-(hh), Fla. Stat. (2022). This means that even if adjudication was withheld regarding one of the offenses listed above, an individual will not be permitted to seal the criminal record. But remember, if your charges were dropped, dismissed, not pursued by the prosecutor, or resulted in an acquittal following a trial, the record may still be expunged even if the offense is listed above—provided you otherwise qualify.

It’s important to note a unique exclusion that is not explicitly listed under the ineligible offenses but is nonetheless unavailable for sealing: Florida DUI charges. The inability to seal a DUI record arises not because sealing is expressly prohibited for DUI offenses, but because Florida law does not permit the withholding of adjudication for DUI charges. § 316.656, Fla. Stat. (2022).

Expungement and Sealing Application Process

In Florida, the journey of sealing or expunging a criminal record begins with the Florida Department of Law Enforcement’s (FDLE) Application for Certificate of Eligibility. This application must include a set of fingerprints, a certified copy of the final disposition for each individual case you’re seeking to expunge or seal, a non-refundable application fee of $75.00, and a letter of representation on letterhead, if represented by an attorney.

It’s crucial to note that if you’re looking to have your record expunged rather than sealed, there is an additional step: your application must first be approved by the State Attorney’s Office before being sent to the FDLE for review.

Once the application is received by the FDLE, they review it meticulously. Based on their evaluation, the FDLE will either issue what is known as a “Certificate of Eligibility” or deny the application. It’s worth noting that the issuance of a Certificate of Eligibility is not a guarantee but rather a prerequisite for the next steps. If the FDLE denies the application, it’s often a sign that the applicant didn’t meet the statutory requirements, which can range from the nature of the criminal offense to the applicant’s prior record.

If you’re granted the Certificate of Eligibility, your next action involves filing a Petition to Expunge or Seal within the jurisdiction of the court where the original charge was initiated. This petition should be supported by a sworn and notarized affidavit that verifies your eligibility for the process, along with a carefully drafted proposed order for the judge to sign. While some jurisdictions may grant the petition simply based on the documentation provided, others may require a formal hearing. Such hearings are scheduled at the discretion of the court and must be attended by the applicant. At these hearings, judges typically verify the paperwork is in order, consider objections, if any, from the State Attorney’s Office or other interested parties, and either grant or deny the petition. The court does possess the discretionary authority to deny the petition, although outright denials are exceedingly rare, as are objections.

Assuming the court grants the petition to seal or expunge, a final order is issued, directing all relevant authorities to either seal or expunge the records.

Steps in the Application Process

  • Eligibility Determination: Regardless of whether you are aiming for sealing or expungement, the process invariably begins with an eligibility check. You need to ascertain if you meet the specific criteria outlined for sealing or expungement.
  • Completing the FDLE Application: Once you’ve verified your eligibility, the next course of action involves completing the Application for Certificate of Eligibility. Make sure that this form is notarized, signed in the presence of a certified notary.
  • Acquiring Fingerprints: The applicant must be fingerprinted by an authorized member of law enforcement or other criminal justice agency. The FDLE provides a printable fingerprint card for this purpose.
  • Submission to the State Attorney’s Office (Expungement Only): For those seeking expungement, the application must first be sent to the State Attorney’s Office for completion of the certified statement on page two of the application. This additional step (not required for sealing applicants) means that expungement can take a little longer than sealing.
  • Sending the Application to the FDLE: A completed application must be sent to the FDLE for processing and review, along with a set of fingerprints, a certified copy of the final disposition for each individual case you’re seeking to expunge or seal, a non-refundable application fee of $75.00, and a letter of representation on letterhead, if represented by a Florida expungement lawyer. The FDLE review process can span anywhere between 3-6 months depending on their backlog. If the FDLE confirms your eligibility for the procedure, they will issue the requisite Certificate of Eligibility. Obtaining a Certificate of Eligibility is a precondition to petitioning the court for the relief sought. State v. D.H.W., 686 So. 2d 1331 (Fla. 1997).
  • Filing the Petition with the Court: Once the Certificate of Eligibility is in your possession, you will need to carefully draft and file a legal petition in the appropriate court. The petition must be carefully drafted with careful attention to details involving the case to be sealed or expunged and be accompanied by a sworn affidavit—duly notarized—testifying to the applicant’s eligibility for the process. Additionally, you are required to send copies of the petition to all parties that might have an interest in the case—this includes the State Attorney’s Office, the FDLE, and any pertinent law enforcement agencies.
  • Attend the Hearing: Some courts will require you to attend a court hearing. At this hearing, the judge will review all the paperwork, consider objections from the State Attorney or any other parties, and make a final decision on your petition.
  • Obtaining a Final Order: If the court concurs with your petition, a final order will be issued, directing all relevant agencies to either seal or expunge the criminal records in question.

Can the Court Deny a Petition To Expunge?

It is important to note that the court retains a level of judicial discretion in deciding whether to grant or deny the petition. However, Florida courts have consistently held that such discretion is not unfettered. Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009). Upon obtaining a certificate of eligibility from the Florida Department of Law Enforcement, a defendant is entitled to have his nonjudicial criminal record sealed. Anderson v. State, 692 So.2d 250 (Fla. 3rd DCA 1997). However, the trial court has discretion to deny a request for sealing based on the particular circumstances of the case. Id. In practice, petitions to seal or expunge are rarely challenged or denied in practice.

Exceptions to the Rule of Non-Disclosure

As discussed above, one of the most significant advantages of having a criminal record sealed or expunged is the ability to lawfully deny or fail to acknowledge the arrests covered by the sealed or expunged record. However, there are specific circumstances where you’re nevertheless obligated to disclose such records. The exceptions to the rule of non-disclosure are as follows:

  1. Criminal Justice Employment: If you’re applying for a job within a criminal justice agency.
  2. Legal Defense: When you are a defendant in a criminal case.
  3. Further Relief: If you’re applying for additional sealing or expungement under certain sections of the law.
  4. Florida Bar Admission: When applying to become a member of The Florida Bar.
  5. Health & Welfare Employment: If you aim to work or contract with specific state agencies focused on children, the elderly, or disabled individuals, such as the Department of Children and Families, or the Agency for Persons with Disabilities, among others.
  6. Education Sector Employment: Applying for work or contracts within the Department of Education, district educational units, special educational units, or specific types of schools like charter schools and private schools. If you’re a contractor or an employee under any educational institution as mentioned above. If you undergo screening under specific educational statutes.
  7. Insurance Licensure: If you’re applying for a license within the Division of Insurance Agent and Agency Services in the Department of Financial Services.
  8. Guardianship: When seeking to become a legal guardian under specific sections of the law.
  9. Firearm Purchase and Concealed Weapons Permits (Sealing Only): When you’re trying to buy a firearm or apply for a concealed weapon permit, disclosure is required for sealed records but not for expunged records.

The full list of exceptions to the rule of non-disclosure can be found in section 943.0585(4)(a), Florida Statutes, for expungement, and section 943.059(4)(a), Florida Statutes, for sealing.

Final Thoughts and Key Insights

The advantages of sealing and expunging criminal records extend far beyond mere legal relief; they offer transformative benefits that touch on various dimensions of life. When it comes to job opportunities, a sealed or expunged record acts as a significant asset by largely removing the hurdle of employer background checks, thereby leveling the playing field in the competitive job market. This advantage is similarly impactful when applying for housing, as many landlords also perform background checks, making it less complicated to secure a lease. In professional contexts, sealing or expunging your record can simplify the complex process of acquiring industry-specific licenses or certifications. Moreover, the removal of a criminal record can mitigate social stigmas, offering a genuine opportunity for a fresh start in both personal and professional spheres.

The Law Office of William B. Wynne provides expungement and sealing services throughout the entire state of Florida. If you would like to expunge or seal your criminal record, contact us for a free consultation.

William Wynne, Esq.

William Wynne, Esq.

Attorney William B. Wynne practices criminal defense in the Tampa Bay area and surrounding counties. Contact us for a free consultation.

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