Expungement 101: The Basics, Qualifications, Exceptions To The Rule Of Disclosure
- William B. Wynne, Esq.
- July 12, 2020
- 9:52 am
- 0 comments
One of my favorite areas of practice is helping clients expunge or seal their prior criminal records. There is something special about making that final phone call, to tell a client that the wait is over, that their case has been officially expunged. It’s a rewarding experience, it provides them with a lifelong benefit, and it is very affordable.
The expungement and sealing process, however, is a complex legal process. Many years ago a friend of mine expunged his own record without an attorney. He was a recent law school graduate at the time so it made sense for him to do it on his own. And he still made a mistake! The moral of the story is that expunging or sealing a record is a tricky, complex process. While it is possible to do it yourself (without a lawyer), most legal professionals do not recommend it. And I promise, they’re not saying that just to get your money.
“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.”
I’ve done over 200 expungements and sealings throughout counties all over Florida. From up in the panhandle near Alabama to to Miami-Dade, Broward, and even Key West. 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.
Do I qualify for Expungement in Florida?
The first question asked by roughly 95% of my clients, is whether they qualify for expungement or sealing in Florida. Indeed, this is the first thing you need to consider. Unfortunately, roughly 75% of the people that call into my office to inquire about the process are not eligible. While determining eligibility is sometimes simple, it can also be a tricky business. It often requires research skills, legal knowledge, and familiarity with court records.
- No prior convictions. You cannot have been previously convicted (adjudicated guilty) for any criminal offense anywhere. Even a conviction from 30 years ago (for a petty offense) will disqualify you. Update: As of October 1, 2019, a change in the allow now allows for out-of-state convictions. So, under the current law, only Florida convictions will disqualify you.
- No prior sealing or expungement (in Florida). If you ever expunged or sealed a record in Florida, it’s a no go. In Florida, you only get one expungement or sealing. Keep in mind, other states are okay. So, if you previously expunged a record in a different state, that’s okay.
- 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.) Keep in mind, 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 regarding the expungement and 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.
The Basics of Expungement and Sealing
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.
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. Today more than ever, it is imperative to speak with an expungement or sealing attorney in Florida.
What crimes cannot be sealed?
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.
What does it mean to have your record expunged?
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.
“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.”
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; orIs seeking to be appointed as a guardian pursuant to s. 744.3125.
A SEALED 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.
- William B. Wynne, Esq.
- July 12, 2020
- 9:52 am
- 0 comments