SEALING AND EXPUNGEMENT
SEALING AND EXPUNGEMENT
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Circuit and County Courts in Florida have continuing jurisdiction over criminal records which allows those courts to seal or expunge Florida criminal history information maintained by the court system and records maintained by Florida law enforcement agencies.
What is the difference between having a criminal history record sealed vs. expunged?
When a criminal history record is sealed, the public will not have access to it. Certain governmental or related entities, primarily those listed in s. 943.059(4)(a), Florida Statutes, have access to sealed record information in its entirety.
When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself. All they would receive is a caveat statement indicating that “Criminal Information has been Expunged from this Record”. Sealing or expunging a record has essentially the same practical effect: both cause a record to be unavailable to the public. The public will not have access to the record whether you seal or expunge the record. In a technical sense, sealing a record makes it non-public only with access to the record available by Court Order. When a record is expunged, an order is entered directing law enforcement and the courts to “expunge” the record and it is effectively deleted from their records. A person can legally deny they were ever arrested or charged with a criminal offense if it has been expunged whereas a person with a sealed record may, in certain circumstances, still have to disclose the matter or assert they were arrested and charged, but that the matter is now sealed.
Why do I have a criminal history record when the charges against me were dropped or dismissed?
The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Section 943.053(3), Florida Statutes, which provides for public access to criminal history records. The term “criminal history information” is defined, tracking the federal definition, at Section 943.045(4), Florida Statutes. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.
Do I qualify to have a case sealed or expunged?
The eligibility criteria for sealing or expungement include the requirement that the applicant be able to attest that he/she has never previously had a record sealed or expunged, under Section 943.059, Section 943.0585, or previous versions of those statutes, in Florida. With respect to the relief offered by these statutes, a person may only seal or expunge one arrest record in one proceeding. More than one arrest record may be sealed or expunged in a single proceeding if the court, in its sole discretion, finds the arrests in question to be directly related.
A record that is initially ineligible for expungement (because adjudication was withheld) may become eligible after it has been sealed for 10 years. However, a person may not seal or expunge one arrest record and then, later and in a different proceeding, ask to have a different arrest record sealed or expunged. NOTE: Other forms of expungement, such as expungement which occurs automatically (by operation of law), under Section 943.0515, administrative expungement under Section 943.0581, juvenile diversion expungement under Section 943.0582, human trafficking expungement under Section 943.0583, lawful self-defense expungement under Section 943.0578 and early juvenile expungement under Section 943.0515(1)(b)2, do not prevent the record subject of the record from seeking a judicial sealing or expungement under Section 943.0585 or Section 943.059, F.S.
If I believe I qualify, can I still be denied a sealing or expungement?
Pursuant to Sections 943.0585 and 943.059, Florida Statutes (F.S.), an application for a Certificate of Eligibility to seal or expunge a criminal history record will be denied under any of the following circumstances
- The criminal history record reflects you have been adjudicated guilty, as an adult, of a criminal offense or comparable ordinance violation. If applicable, the criminal history record reflects you have been adjudicated delinquent for committing any felony or a misdemeanor specified in Section 943.051(3)(b), F.S. Certain driving violations are classified as criminal, such as driving under the influence, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked.
- The criminal history record reflects you have been adjudicated guilty of or adjudicated delinquent for committing one or more of the acts stemming from the arrest or alleged criminal activity to which the application pertains.
- The criminal history record reflects you have received a prior sealing or expungement of a criminal history record under Section 943.0585, Section 943.059, former Section 893.14, former Section 901.33 or former Section 943.058, F.S. NOTE: A sealing or expungement obtained under any other parts of the law, not listed here, will not count as a “prior” order.
- The criminal history record to which the application pertains relates to a violation of Section 393.135, Section 394.4593, Section 787.025, Chapter 794, Section 796.03, Section 800.04, Section 810.14, Section 817.034, Section 825.1025, Section 827.071, Chapter 839, Statute 847.0133, Statute 847.0135, Statute 847.0145, Statute 893.135, Statute 916.1075, a violation enumerated pursuant to Statute 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to Statute 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense, or that the defendant as a minor, was found to have committed, or pled guilty or nolo contendere to committing, such an offense as a delinquent act, without regard to whether adjudication was withheld.
Disqualifying Charges for Sealings and Expungements
Except for certain specified offenses, the record of an arrest may be sealed when adjudication is withheld, if otherwise eligible. The offenses which may not be sealed (or expunged even if previously sealed for 10 years) when (i.e., even if) adjudication is withheld under current law are:
Offenses listed in Section 943.0584, Fl. Stat.
- Sexual misconduct, as defined in s. 393.135, s. 3457 394.4593, or s. 916.1075;
- Illegal use of explosives, as defined in chapter 552;
- Terrorism, as defined in s. 775.30;
- Murder, as defined in s. 782.04, s. 782.065, or s. 782.09;
- Manslaughter or homicide, as defined in s. 782.07, s. 3463 782.071, or s. 782.072;
- Assault or battery, as defined in ss. 784.011 and 784.03, respectively, of one family or household member by another family or household member, as defined in s. 741.28(3);
- Aggravated assault, as defined in s. 784.021;
- Felony battery, domestic battery by strangulation, or aggravated battery, as defined in s. 784.03, s. 784.041, and s. 784.045, respectively;
- Stalking or aggravated stalking, as defined in s. 784.048;
- Luring or enticing a child, as defined in s. 787.025;
- Human trafficking, as defined in s. 787.06;
- Kidnapping or false imprisonment, as defined in s. 787.01 or s. 787.02;
- Any offense defined in chapter 794;
- Procuring a person less than 18 years of age for prostitution, as defined in former s. 796.03;
- Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, as defined in s. 800.04;
- Arson, as defined in s. 806.01;
- Burglary of a dwelling, as defined in s. 810.02;
- Voyeurism or video voyeurism, as defined in s. 810.14 and s. 810.145, respectively;
- Robbery or robbery by sudden snatching, as defined in s. 812.13 and s. 812.131, respectively;
- Carjacking, as defined in s. 812.133;
- Home-invasion robbery, as defined in s. 812.135;
- A violation of the Florida Communications Fraud Act, as provided in s. 817.034;
- Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult, as defined in s. 825.102;
- Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, as defined in s. 825.1025;
- Child abuse or aggravated child abuse, as defined in s. 827.03;
- Sexual performance by a child, as defined in s. 827.071;
- Any offense defined in chapter 839;
- Certain acts in connection with obscenity, as defined in s. 847.0133;
- Any offense defined in s. 847.0135;
- Selling or buying of minors, as defined in s. 847.0145;
- Aircraft piracy, as defined in s. 860.16;
- Manufacturing a controlled substance in violation of chapter 893;
- Drug trafficking, as defined in s. 893.135; or
- Any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, or sexual offender pursuant to s. 943.0435, without regard to whether that offense alone is sufficient to require such registration.
The Process to Seal or Expunge
A sealing or expungement is not done automatically. Even if your charges were dropped outright, or adjudication was withheld, your arrest or notice to appear is still public record. A sealing or expungement is a separate post-conviction civil remedy done through application with the Florida Department of Law Enforcement in Tallahassee and is typically a 3-6 month process. The short version of that process is as follows:
- Complete an application to Expunge or Seal in the Circuit your case originated in. IF requesting an expungement, the State Attorney’s Office will have to also fill out a notarized section of your application before submitting to FDLE.
- You must get fingerprinted at a local law enforcement office. The fingerprints must be original ink prints and must be done by law enforcement. Prints done through a private enterprise (for example, a UPS Store) will be rejected.
- Obtain a Certified Disposition of your former case from the Clerk of Court in the jurisdiction of record.
- Submit the fingerprints, certified disposition, and the application to seal/expunge to FDLE, along with a $75 fee (as of 2022). This entire process is done to obtain a Certificate of Eligibility to Seal or Expunge (usually a 2-4 month delay after submitting application). This certificate is your “golden ticket” that you will submit with your Motion and Order to seal/expunge and is proof to the Court that you are eligible to have your record status changed.
- Once the Certificate of Eligibility is issued, file a motion, along with an appropriate affidavit and a proposed order, with the Court, police department, Sherriff’s Office, and any other involved government entity, in the jurisdiction your case originated in to seal or expunge the case as appropriate.
- The Court will issue an order to seal or expunge and provide copies to you or your lawyer, the appropriate State Attorney’s Office, the appropriate arresting law enforcement agency(s) and FDLE. The case will then be removed from public databases and all records will only be available by court order or be deleted based on whether the case is sealed or expunged.
Please understand these applications, motions, and orders are very meticulous and must be precise. If you have an arrest date off by a day or cite to the wrong subsection of a statute, your entire application can be rejected requiring you to either refile or start over.
Types of Relief Available to Seal or Expunge
An arrest (adult or juvenile) made contrary to law or by mistake may be expunged by applying to FDLE, in one of the ways provided in statute and rule.
(Per Section 943.0581, Florida Statutes, and Rule 11C-7.008, Florida Administrative Code)
Court-Ordered Sealing or Expungement
A person may apply to FDLE for a Certificate of Eligibility to Seal or Expunge his/her criminal history record. This is the required first step toward obtaining the court-ordered sealing or expungement of that record. Before issuing a Certificate of Eligibility, FDLE determines if the applicant is statutorily eligible to petition the court to have his/her Florida criminal history record sealed or expunged.
(Per Sections 943.059, and 943.0585, Florida Statutes, and Rules 11C-7.006 and 11C-7.007, Florida Administrative Code)
Juvenile Diversion Expungement
A person who has completed an authorized juvenile diversion program for a misdemeanor, may apply for a juvenile diversion expungement, as defined.
(Per Section 943.0582, Florida Statutes, and Rule 11C-7.009, Florida Administrative Code)
Lawful Self-Defense Expungement
A person may apply for a Lawful Self-Defense Certificate of Eligibility if the appropriate state attorney or statewide prosecutor certifies that the subject acted in lawful self-defense pursuant to the provisions related to justifiable use of force in Chapter 776, Florida Statutes, and the charge(s) were not filed on, or were dismissed by the state attorney or the court.
(Per Section 943.0578, Florida Statutes)
Human Trafficking Expungement
A person who is a victim of human trafficking (as defined in Sections 943.0583(1)(c) and 787.06, Florida Statutes) may petition for the expungement of a criminal history record resulting from the arrest or filing of charges for an offense committed or reported to have been committed as a part of the human trafficking scheme of which he/she was a victim.
(Per Section 943.0583, Florida Statutes)
Automatic Juvenile Expungement
The criminal history record of a minor maintained by FDLE will automatically be expunged (by operation of law) at the age of 21, or (if the minor was committed to a juvenile correctional facility or juvenile prison) age 26, provided certain conditions are satisfied (i.e., not having been charged with or convicted of a forcible felony as an adult or when treated as an adult). A list of charges designated as forcible felonies can be found in Section 776.08, Florida Statutes.
(Per Section 943.0515, Florida Statutes)
Early Juvenile Expungement
a person between the ages of 18 and 21 may, under certain conditions, apply to have their juvenile criminal history record expunged by FDLE. A person may apply to the appropriate prosecuting attorney to approve the expungement of his/her FDLE juvenile criminal history record if the subject has not been charged with or found to have committed any criminal offense (including the one that you are seeking to expunge) within the preceding 5 years.
(Per Section 943.0515(1)(b)2, Florida Statutes)
The criminal history record maintained by FDLE will automatically be sealed (by operation of law) when the Clerk of the Court submits a qualifying certified disposition to FDLE, via electronic means. A list of qualifying dispositions can be found in Section 943.0595, Florida Statutes. A list of disqualifying offenses can be found in Section 943.0595(2)(a), Florida Statutes.
*Note- this process does not seal records at the local level.
(Per Section 943.0595, Florida Statutes)