Florida Criminal Record Expungement & Sealing
There’s a lot of confusion about sealing criminal records and expungement in Florida. Unfortunately, this can lead to false assumptions, missed opportunities, and mistakes which get in the way of clearing your record and moving forward. Educating yourself about the differences between sealing records and expungement and when each may be available is the first step. This overview will help you take that initial step. But, there’s no substitute for the guidance of a criminal defense attorney who is experienced in handling sealing and expungement of criminal record cases.
At Johnson and Lufrano, P.A., we are dedicated to helping people in and around Jacksonville with all phases of the criminal defense process, including expungement and sealing of records. We can help you determine whether you might be eligible for sealing or expungement, and which type fits your situation. Then, we can manage the process for you to ensure that you submit the strongest possible application and petition.
To learn more about your options, you can schedule a free consultation with one of our lawyers. Just call 904-513-3905 or contact us online.
What is Expungement?
Expungement of a criminal history record–called “expunction” in the Florida statute–deletes that entry. Meaning that the formal record is physically destroyed. However, the Florida Department of Law Enforcement (FDLE) still keeps a record, but that record is confidential. Florida law allows disclosure for very limited purposes.
The practical result is that with a few exceptions, expunged records are treated as if they never happened. That means the person whose record was expunged need not disclose the arrest or conviction, even under oath. However, this protection doesn’t apply to individuals in circumstances described in Florida Statute 943.0585(6)(b), including but not limited to when the person whose record was expunged is:
- A candidate under consideration for employment with a criminal justice agency,
- A defendant in a criminal prosecution,
- A candidate for admission to the Florida Bar, or
- A candidate for employment or licensure through DCF, DJJ, APD, the Florida Department of Health, and various other state agencies.
Expungement is also typically preferred to a sealing because an expungement more completely erases the records of the conduct in question. That said, while expungements are generally preferred, the eligibility requirements for obtaining an expungement are more stringent than they would be for a sealing.
In Florida, there are several different types of expungement, and the processes and requirements vary. Some occur automatically at a certain point in time, while others require an application to the FDLE followed by a petition to the court.
How is Sealing Different from Expungement?
The main difference between sealing a record and expungement in Florida is the extent of information available in the limited circumstances when those records can be reviewed. If the record has been expunged, the only information available in most circumstances will be that a record has been expunged. A sealed record may be available in full to certain parties under certain circumstances. Also as mentioned before the eligibility requirements for a sealing are less stringent than for an Expungement.
Types of Florida Expungement
Some types of expungement were designed to help people clean up their records, while others were developed to protect people who were in some way not legally responsible for their actions. Such circumstances might include scenarios where a person did not commit the crime they were arrested for, had a legal justification for their actions, or acted under coercion. These include:
Lawful Self Defense Expungement:
Allows for expungement of the record of an arrest when the prosecutor or judge dismisses the charges because a person was found to have acted in self defense as is justified under Florida law. The requirements of such an expungement are laid out in Florida Statute 943.0578.
Florida Statute 943.0581 allows for expungement of the record of an arrest that was made in error or was unlawful. This removal may be requested by a law enforcement agency at its own discretion. Further, in order to apply for such an expungement, any application for administrative expungement must be accompanied by an endorsement of the expungement by the State Attorney, the head of the arresting agency, or a designee of the head of the arresting agency. It is also worth noting that the arrested person (or parent or guardian of a minor) may also apply for administrative expungement.
Human Trafficking Expungement:
A more unique form of expungement relates to individuals who were the victims of human trafficking, the details of which are spelled out in Florida Statute 943.0583. Thsi section allows for the expungement of a record of arrest or charges relating to certain offenses alleged to have been committed by a victim of human trafficking, while being trafficked, committed as a part of the trafficking scheme or at the direction of th trafficker. What sets this form of expungement apart from virtually all others is that the disposition of the offense for which one is seeking expungement is not a factor which impacts eligibility.
Court Ordered Expungement
This form of expungement is the most common and is typically what people think about when discussing expungement. Securing a court-ordered expungement is a two-step process. The person seeking to expunge a record must first obtain a Certificate of Eligibility from the Florida Department of Law Enforcement and then they may petition the court to expunge the record. Eligibility for court-ordered expungement can be complicated, and depends on factors such as:
- The nature of the crime
- The disposition of the case
- The petitioner’s other criminal history
A criminal defense attorney who handles expungements can be the best source of information about whether or not you and your record is eligible for expungement.
Sealing of Criminal Records in Florida
As mentioned earlier sealing is another legal avenue that can be pursued to clean up a person’s criminal record. It should also be noted that the legal requirements for sealing are less stringent than for those of expungement. Thus if a person is not eligible for expungement they may wish to look to the possibility of sealing their record. Further the effect of a sealing is that the records sealed become confidential and they are not subject to public records request pursuant to Florida Statute 119.07 and Article 1 Section 24 of the Florida Constitution. Similarly, an individual whose record is sealed, need not disclose the arrest or conviction, even under oath, subject to the same limitations that exist for those whose records are expunged. For more information on the sealing of a criminal record you can contact a local criminal defense attorney who handles sealings or look to Florida Statute 943.059.
FAQs about Florida Criminal Record Expungement
What information is part of my criminal record?
Many people believe that only criminal convictions appear on a Florida criminal history. However, in Florida, a criminal record is created when a person is arrested. That record is not automatically deleted if charges are dismissed or the defendant is acquitted. Rather, the record remains public and discoverable unless it is expunged or sealed. Further, a person’s criminal record will consist of any reports generated from an arrest, documents filed pursuant to the case itself, and the disposition of the case.
What is a Certificate of Eligibility?
A Certificate of Eligibility is a document issued by FDLE that confirms a person meets the legal requirements to have their record either sealed or expunged. It should be pointed out that obtaining a Certificate of Eligibility alone does not seal or expunge a criminal record. Obtaining this document is merely a first step in the process. Such a certificate must be applied for and it may take several months to obtain. It is also worth noting that a Certificate of Eligibility is only valid for a year from the date it was issued. So if you obtain one you don’t want to let it expire.
What if I am denied a Certificate of Eligibility?
Now in some instances, FDLE may refuse to issue a Certificate of Eligibility what action can or should be taken will depend on the reason for the denial. In such circumstances, it is advisable to contact a local criminal defense attorney who is well versed in sealing and expungements who can advise you as to how to proceed. In some circumstances, it may be possible to resolve the dispute via contact with counsel for FDLE, while other instances may require the filing of a writ of mandamus, which would seek to compel FDLE to issue the certificate.
Do I need a copy of my criminal history?
To apply for a Certificate of Eligibility for sealing or expungement you are not required to submit a copy of everything that makes up your criminal record. However, you will need to obtain and submit a Certified Copy of the court documents indicative of the cases disposition (like a judgement and sentence or a drop notice) and if applicable any documents that demonstrate you successfully completed probation. These certified copies can be obtained from the Clerk of the Courts in the county where the case originated.
Can I have more than one record sealed or expunged?
In general, an individual is only eligible for one court-ordered sealing or expungement. This limitation does not apply to certain other types of expungement, such as the automatic expungement of juvenile records. Further, a person who successfully petitioned to have a record sealed may be able to petition for expungement after 10 years has passed, but they cannot petition to have a different record expunged.
Additionally, in most circumstances a person may only have one arrest sealed or expunged. However, a court may, in its discretion, seal or expunge multiple arrest records if it determines those arrests to be directly related. However, this must take place in a single proceeding, and the court has complete discretion as to whether the records are sufficiently related to warrant treating them as a single record.
Do I need an attorney to pursue an expungement or record sealing in Florida?
You are not required to retain an attorney to help you with your application or petition to seal or expunge a criminal history record. However, when it comes to Court-Ordered Expungements and Sealings, you will ultimately have to file the formal petition in Court and you may even have to appear before a Judge at a hearing. Thus it can be incredibly beneficial to have the advice and assistance of an experienced attorney to walk you through this process. After all, lawyers that do expungements on a regular basis understand the process, the type of documentation required to build a persuasive case, and what the courts are typically looking for in certain types of cases. So, it is generally to your advantage to contact an experienced Florida expungement attorney.