In Florida, expunging or sealing a criminal record is the process by which a former defendant or arrestee, upon meeting specified eligibility requirements, destroys their criminal history record (expunction) or eliminates access to the record (sealing) by way of court order.
Expunging and Sealing- Definition
Under Section 943.045(16), Florida Statutes, the term “expunge” is defined as a court-ordered physical destruction of a record by any criminal justice agency or other public entity in possession of such information. A limited record will remain with the Florida Department of Law Enforcement (FDLE), which is required by statute to confidentially maintain on file information about a person’s criminal history.
Under Section 943.045, Florida Statutes, the term “seal” is defined as the court-ordered maintenance of a record where it is secure and inaccessible to any person not having a legal right of access to the information contained within it. This means that the record will continue to be on file by applicable criminal justice agencies and clerk’s offices, but will be confidential and exempt from public disclosure.
Benefits of Expunging and Sealing
There are many legal and practical benefits to expunging or sealing a criminal history record. These include:
- Protecting a person’s criminal past from public view;
- Avoiding discovery of a criminal incident by employers;
- Avoiding discovery of a criminal incident by colleges and universities;
- Protecting a person from having to disclose an arrest or charge to employers and other interested persons;
- Preventing a record from being found on background checks;
- Circumventing workplace policies that prevent advancement for employees with criminal histories;
- Protection of reputation in the community;
- Peace of mind and closure.
Protections from Disclosure
Once a person’s record has been sealed or expunged, he or she is legally protected from having to disclose the subject criminal history. This disclosure protection applies to virtually all private sector employers and most colleges and universities.
There are limited exceptions to this rule. Under Sections 943.0585(4)(a) and 943.059(4)(a), Florida Statutes, a person must must make a truthful disclosure of his or her criminal history information (upon proper request) if he or she:
- Is a candidate for employment with a criminal justice agency;
- Is a defendant in a criminal prosecution;
- 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 Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice;
- 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 child care facilities;
- 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 (this applies only to the sealing of records);
- Is seeking authorization from a Florida seaport identified in Section 311.09, Florida Statutes, for employment within or access to one or more of such seaports pursuant to Section 311.12, Florida Statutes;
- Is seeking to change their immigration status or receive immigration benefits.
Sealing: Eligibility Criteria
To seal a record in Florida, an applicant must meet the following eligibility requirements:
- You must never have been adjudicated guilty of a criminal offense or comparable ordinance violation, and must never have been adjudicated delinquent (in a juvenile proceeding) for committing any felony or a misdemeanor specified in Florida Statutes Section 943.051(3)(b) (including assault, battery, carrying a concealed weapon, unlawful use of destructive devices or bombs, negligent treatment of children, assault or battery on a law enforcement officer, open carrying of a weapon, exposure of sexual organs, unlawful possession of a firearm, petit theft, cruelty to animals, arson, and unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property);
- You must not have been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which your sealing application pertains;
- You must have no prior sealing or expunction of a criminal history record anywhere else;
- You must not have any other petition to seal or any petition to expunge pending before any court;
- You must not have committed any “disqualifying” offenses (see below);
- If placed on probation or community control for the offense, the probation or community control must be completed and you must no longer be under court supervision.
Expunction: Eligibility Criteria
In addition to meeting the eligibility requirements for sealing a record, an applicant for expunction must meet two additional criteria:
- There must not have been an indictment, information, or other charging document filed in your case, or, if one was filed, the case must have resulted in a dismissal or nolle pros by the state attorney or the court. If your case proceeded to trial, you are not eligible for an expunction, regardless of the outcome of the trial. In that instance, you must first seal the record and wait ten years from the date of sealing before petitioning to expunge.
- If the case resulted in a plea and adjudication was withheld (and the applicant meets all of the other eligibility requirements of a sealing), the applicant must first seal his or her record and wait a period of ten years from the date of sealing before petitioning to expunge. See Section 943.0585(2)(h), Florida Statutes.
Under Sections 943.0585 and 943.059, Florida Statutes, certain offenses are not eligible to be sealed or expunged, regardless of whether adjudication was withheld.
- Section 393.135- sexual misconduct with developmentally disabled person);
- Section 394.4593- sexual misconduct between an employee and a mentally ill patient;
- Section 787.025- luring or enticing a child;
- Chapter 794- sexual battery;
- Section 796.03- procuring a minor for prostitution;
- Section 800.04- lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
- Section 810.14- voyeurism;
- Section 817.034- Florida Communications Fraud Act;
- Section 825.1025- lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
- Section 827.071- sexual performance by a child;
- Chapter 839- criminal conduct by public employees and officials;
- Section 847.0133- providing obscene material to minors;
- Section 847.0135- computer pornography; traveling to meet minor;
- Section 847.0145- selling or buying of minors;
- Section 893.135- drug trafficking (controlled substances, including cannabis);
- Any violation specified as a predicate offense for registration as a sexual predator pursuant to Section 775.21;
- Offenses specified in Section 907.041, including:
- Aggravated assault;
- Aggravated battery;
- Illegal use of explosives;
- Child abuse or aggravated child abuse;
- Abuse of an elderly person or disabled adult;
- Aircraft piracy;
- Sexual battery;
- Lewd, lascivious, or indecent assault upon or in presence of a child under 16;
- Sexual activity with a child, who is 12 years of age or older but less than 18;
- Burglary of a dwelling;
- Stalking and aggravated stalking;
- Act of domestic violence as defined in Section 741.28, Florida Statutes (including assault, aggravated assault, domestic battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member);
- Home invasion robbery;
- Act of terrorism as defined in s. 775.30;
- Manufacturing any substances in violation of Chapter 893, Florida Statutes; and
- Attempting or conspiring to commit any such crime.
The offenses listed above are only disqualifying if there was a finding or verdict of guilt or delinquency, or if there was a plea of guilty or no contest. If the charges were dropped or otherwise dismissed, an applicant will remain eligible to seal or expunge.
Expunging More Than One Record
Florida law permits the sealing or expunging of only one criminal history in a lifetime. For persons who have multiple arrests or cases, this means that only one of the records will be affected by a sealing or expunction order (assuming all eligibility requirements are met).
There is one exception to this general rule. Under Sections 943.059 and 943.0585, the trial court “may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.”
For this exception to apply, the offenses or cases at issue must derive from single criminal episode or incident. See State v. ABM, 742 So.2d 818 (Fla. 2d DCA 1999) (construing the exception “to apply to additional arrests or charges that stem from one criminal activity or episode where the additional offenses are temporally related or there is some nexus between the offenses”); State v. Dinkins, 794 So.2d 736, 738 (Fla. 1st DCA 2001) (holding that “the offenses must stem from one activity or episode, and in addition, the crimes must be temporally related or have a nexus between them”).
If the additional offenses or arrests at issue do not derive from one criminal activity or episode and are not temporally related, then the trial court lacks authority to seal or expunge more than one record. State v. C.B., 117 So.3d 844 (Fla. 4th DCA 2013) (reversing a trial court order sealing two arrest records where “the offenses did not stem from one criminal activity or episode and were not temporally related”).
How to Seal or Expunge a Criminal Record
The procedures that must be followed to seal or expunge a criminal record are both tedious and time consuming.
Step 1: Preparation of an Application for Certification of Eligibility to Seal or Expunge a Criminal Record- the application must be signed in front of a notary;
Step 2: Obtain fingerprints on an approved Florida Department of Law Enforcement fingerprint form;
Step 3: Obtain a certified copy of the disposition from the Clerk of Courts;
Step 4: Submit completed Application to Expunge or Seal to the State Attorney’s Office for completion of “Section B” (applicable only to expunction applications);.
Step 5: Submit the application, fingerprint form, certified copy of disposition, and money order or cashier’s check to the Florida Department of Law Enforcement for processing;
Step 6: Obtain Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE). Current FDLE processing times can be months in duration.
Step 7: Draft and file with the presiding court a Petition to Seal or Expunge. The petition must be drafted in accordance with Chapter 943, Florida Statutes, or else it will be denied.
Step 8: Simultaneously with the Petition to Seal or Expunge (see Step 7), submit for court review a proposed order for sealing or expunging.
Step 9: Serve copies of the Petition and proposed orders on the Office of the State Attorney and appropriate law enforcement agencies.
Step 10: Attend a hearing on your petition, if required by the court.
Step 11: Await court approval of the petition and the issuance of the order that seals or expunges the record.
Upon properly serving the petition, a hearing is held wherein the court, in its discretion, makes a determination about whether to grant or deny your requests in whole or in part. At this stage, the assistance of an attorney is especially critical.
Prosecutors frequently oppose efforts to seal and expunge records (even in meritorious cases) and it is important to have counsel available to make appropriate legal arguments and present your case in the best possible light. Judges have wide discretion to approve or deny petitions, and appellate review is extremely limited.
Costs / Fees to Expunge or Seal
The costs for expunging or sealing a record in Florida include the following:
- A $75.00 application fee for obtaining a Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE);
- A filing fee ranging from $59 to $75 paid to the clerk of courts where the petition to expunge or seal is filed;
- Costs for obtaining certified copies of the case disposition ($3-$5); and
- The costs of a notary (although most major banks offer free notary services).
For applicants who wish to retain counsel, attorneys’ fees can vary widely from between $700.00 and $1,700.00. Due to the higher volume of seal and expunge applications handled by our law firm, our attorneys charge a flat rate of $500.00 for all applications in Northeast and Central Florida.
If I have a record sealed or expunged in another state, can I also have a Florida record sealed or expunged?
No. If the record was sealed or expunged because you petitioned to have it done by court order, you will not be eligible.
If I have an out of state criminal conviction, will that prevent me from having my Florida record sealed or expunged?
Yes. Any criminal conviction (adjudication of guilt) will prevent a person from having a record sealed or expunged within Florida. The conviction does not have to be on the arrest they are requesting.
I pled to Battery-Domestic Violence, but received a withhold of adjudication (not convicted). Can I still seal or expunge?
No. Battery Domestic violence is a disqualifying offense and renders the accused ineligible for sealing or expungement, even if adjudication was withheld.
My case was dismissed. Does this mean that I have no record, or that my record was automatically expunged?
No. There is a still a record of the arrest and prosecution. This record must still be expunged by following the procedures outlined above.
The FDLE has approved my application and I received my Certificate of Eligibility. Does this mean my record is sealed or expunged?
No. A Certificate of Eligibility is just that- an official statement that you are eligible to seek a sealing or expunction. You must still petition to court and comply with all procedures mandated by Chapter 943, Florida Statutes.
How long will it take for the Florida Department of Law Enforcement to process my application?
Current processing times are 3-4 months.
Can I pay to have FDLE expedite the processing of my application to seal or expunge?
No. Upon the filing of your application, you will be given a priority date based on the date of submission. The application will be processed in the order it was received- first come first served. There is no expedited track, and any attorney or “legal clinic” promising otherwise is lying to you.
Who is entitled to receive “sealed” information?
There are several agencies entitled to receive sealed information under Florida law. These include law enforcement, the Florida Bar, entities presiding over teacher certification, Agency for Healthcare Administration, and the Department of Children and Families (DCF).
Once my record is sealed or expunged, will I receive written confirmation from the various agencies or departments stating that they have complied with the Court’s order to seal or expunge?
No. In Florida, there is no requirement that each agency or department send confirmation of their compliance with the Court’s orders. The only writing you will receive is the Court’s Order to Seal or Order to Expunge.
If you are seeking to seal or expunge a criminal record in Jacksonville, contact Hussein & Webber, PL today. Our consultations are free and confidential.