In Florida, sealing or expunging a criminal record does pretty much exactly what it sounds like it would do. When you meet certain criteria to have your record sealed, access to your criminal history is unavailable to other people. If your record is expunged, the criminal history is physically destroyed. Here are some common questions that our firm receives from clients hoping to seal or expunge a criminal record.
A criminal history is secured and inaccessible when it is sealed by a court order. In order to obtain the court-order sealing your record, you must meet certain eligibility requirements and follow the application and petitioning process set out in Section 943.059, Florida Statutes. To be eligible for the sealing of your criminal history record, the following criteria must be met:
- You must never have been adjudicated guilty of a criminal offense or comparable ordinance violation, and must never have been adjudicated delinquent (as a juvenile) for committing any felony or a misdemeanor specified in 943.051(3)(b), Florida Statutes;
- You must not have been adjudicated guilty of or adjudicated delinquent for committing any of the acts that stem from the arrest or alleged criminal activity that is the subject of the petition to seal your record;
- You must not have previously had a criminal history record sealed or expunged anywhere;
- You cannot have any petition to seal or petition to expunge pending before any court;
- The charge which you are petitioning the court to seal or expunge must not be a disqualifying offense (discussed below);
- Any sentence of probation or court supervision must have ended.
If the criteria above are met, the process to seal a criminal history record is begun by applying to the Florida Department of Law Enforcement (FDLE) for a certificate of eligibility. You must obtain fingerprints on an approved form and send that along with your application. In addition, you must include a certified copy of the disposition of the case from the clerk of court, as well as a completed application and a $75.00 money order.
Once the certificate of eligibility is obtained from FDLE, the next step is to petition the court. A proper Petition to Seal must be drafted and filed with the court. Along with the petition to seal, you must provide a proposed order for sealing, as well as an affidavit or a sworn statement that you meet the necessary requirements. You must serve a copy of your petition upon the state attorney’s office or appropriate prosecuting authority, as well as the arresting agency. You then must await the issuance of the order from the court that will either grant or deny your petition to seal. A hearing on your petition may be scheduled. Your attendance is mandatory at such a hearing.
Section 943.045(19), Florida Statutes, defines “sealing of a criminal history record” as the “preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right or access to the record” or to the information in the record.
Section 943.045(16), Florida Statutes, defines “expunction of a criminal history record” as the “court-ordered physical destruction…” of the record or of a portion of the record. In addition to the requirements listed above for sealing, expunction eligibility has two additional criteria that must be met:
- There must never have been a piece of information, indictment, or other charging document filed in your case, or if one was filed, the formal charging document must have been dismissed or nolle prosequi by the prosecutor or dismissed by the court, or you were found not guilty by a jury or the judge;
- If you pled guilty or were sentenced on the case and received a withholding of adjudication, you must first have the criminal history record sealed for a minimum of 10 years before you can petition to have the record expunged.
The main difference between a record that is sealed and one that is expunged is the existence of the record or file itself. As stated in the definition, a sealed record is exempt from public disclosure, but it is still maintained by certain criminal justice agencies and clerk’s offices. An expunged record, as the definition states, is physically destroyed. The Florida Department of Law Enforcement is the only agency that will maintain the file confidentially.
Yes, you can seal (or expunge) a felony record in Florida so long as all of the criteria mentioned above are met, and it is not one the disqualifying offenses referenced in 943.0585 and 943.059, Florida Statutes.
- Aggravated assault;
- Aggravated battery;
- Burglary of a dwelling;
- Child abuse or aggravated child abuse;
- Domestic violence cases
- Drug trafficking or manufacturing;
- Sexual Misconduct;
- Sexual Battery;
- Some lewd or lascivious offenses;
- Sex offenses that are predicates to registration as a sexual predator; or
- Stalking and aggravated stalking
In Florida, the law only allows the court to seal or expunge one arrest or one incident of alleged criminal activity. The law does allow the court, in its sole discretion, to order the sealing of a record from more than one arrest if the additional arrests directly relate to the original arrest. This means that the multiple arrests must stem from one criminal episode or event.
If your criminal history record is sealed or expunged, you are protected from having to disclose this information to most private employers and educational institutions. There are some limitations to this privilege and they can be found in Florida Statutes 943.0585(4)(a) and 943.059(4)(a). If you fall under one of these exceptions, you must be truthful about your criminal history record even if it was sealed or expunged. They are as follows:
- Seeking employment with a criminal justice agency;
- A Defendant in a criminal prosecution;
- Applying for admission to the Florida Bar;
- Seeking employment with Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice;
- Seeking employment with 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 child care facilities;
- Application to purchase a firearm which subjects you to a criminal history check (sealed records only); or
- Seeking to change your immigration status or receive immigration benefits
The time it takes from application to order varies. FDLE handles all applications and provides information on their website to regarding the status of applications. We advise clients that it normally takes between 4 and 7 months to complete the process.
The costs associated with the application process and petition to the court will vary depending on the number of pages and copies as well as the fees in your area. The following is a list of items you can expect to pay for:
- Obtaining the certified disposition in your case
- Cost of the application to FDLE ($75.00)
- Fingerprints from a local law enforcement agency
- Filing fees and copy costs to the clerk of court when the petition is filed
The process of petitioning a court to seal or expunge a criminal history record is lengthy and stringent. The assistance of an experienced Florida sealing or expungement lawyer is crucial. At Powers Sellers & Finkelstein, our attorneys have over 25 years of combined experience assisting people in having their criminal history record sealed or expunged. We know what it takes to get the best result in your case. Call us today for a free evaluation.
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