The ‘Related Offense’ Exclusion

Fla. Stat. §§ 943.059 and 943.0585 prohibit the sealing or expunging of a criminal history record if the offense to which a defendant pled falls within a proscribed category of crimes or “relates to” those crimes.

In the context of sealing a record, for example, § 943.059 states:

A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s.787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator . . . may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense (emphasis added).

§ 943.0585 contains almost identical language for the same ineligible offenses.  Domestic violence and aggravated assault cases fall within the scope of this provision because they are included in the list of violations enumerated in Section 907.041, Florida Statutes.

When is Criminal History ‘Related?’

By the literal language of the statute, the ‘related’ offense exclusion appears to be operative only where:

  1. The defendant is found guilty or pleads guilty or nolo contendere; and
  2. The plea is entered or the finding of guilt is made with respect to “the offense” referenced in the statute.

Since a defendant cannot enter a plea to or be found guilty of a “criminal history record,” the term “offense” can only logically refer to any one of the specifically enumerated violations contained in either § 943.059 and § 943.0585.

Williams v. State

At least two appellate courts in Florida have taken the view that, in applying the ‘related’ offense language of § 943.059 (sealing) and § 943.0585 (expunging), the analysis is whether the defendant’s crime is among those for which for which expungement is prohibited. Williams v. State, 879 So. 2d 77, 79 (Fla. 3d DCA 2004); J.A.H. v. State, 198 So. 3d 884 (Fla. 4th DCA 2016).

In Williams, a defendant pled guilty to domestic battery and false imprisonment, and thereafter received a withhold of adjudication on both charges. Id. at 78. Following completion of probation, the defendant applied to FDLE for a certificate of eligibility. FDLE denied the application on grounds that domestic violence cases were statutorily ineligible for expunction. Id.

While upholding the trial court’s ruling that domestic violence cases were ineligible, the Third District Court of Appeal outlined the analysis applicable to cases involving seemingly ‘related’ offenses, stating:

The question is whether the defendant’s crime is among those for which for which expungement is prohibited. The relevant part of the statute allows expungement if it is determined:

3. That the criminal history record does not relate to . . . a violation enumerated in s. 907.041 where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense . . . without regard to whether adjudication was withheld.

Id. at 79 (citing § 943.0585(2)(a)(3)) (emphasis added).

J.A.H. v. State

In J.A.H., a defendant was arrested and charged by information with one count of trafficking in oxycodone and one count of withholding information from a practitioner (doctor shopping). J.A.H. v. State, 198 So. 3d 884 (Fla. 4th DCA 2016). Under § 943.059, trafficking in a controlled substance is an ineligible offense, which creates a statutory bar to sealing for cases that result in a plea or finding of guilt. Id.

Later in the criminal case, the State of Florida entered a nolle prosequi to the trafficking count in exchange for a plea to the related charge of doctor shopping. Id. The defendant received a withhold of adjudication and was placed on probation. Id.

After completing his probationary sentence, the defendant filed with FDLE an application to seal the subject criminal record. Id. Despite the original charge of trafficking (an excluded offense under Section 943.059), FDLE nonetheless issued a certificate of eligibility. Id.

At hearing on the petition to seal, the State of Florida objected, arguing that the defendant was barred from sealing his record because the case was originally brought on the basis of a trafficking charge. Id. Since the charge to which the defendant pled related to the previously alleged trafficking, the State contended that the subject record could not be sealed. Id. The trial court agreed and denied the petition.

On appeal, the Fourth District rejected the State’s “erroneous argument” that a defendant can be barred from sealing a record because the case at one time involved a higher charge that, in the absence of a dismissal or reduction, would not have been sealable under § 943.059. Id. at 887. As explained by the Court:

Although J.A.H. was initially charged with trafficking in oxycodone, under section 893.135, that count was nolle prossed by the State, and therefore does not fit the statutory bar since J.A.H. was not “found guilty of or pled guilty or nolo contendere to the offense.” We agree with J.A.H. that the State’s argument was an inaccurate application of the statute.

Id.

Shock v. State

At least one appellate decision in Florida supports the position that, in determining whether an offense is ineligible for sealing or expunging due to the nature of the offense, courts may look beyond the actual offense to which a defendant pleads.

In Shock v. State, 750 So. 2d 769 (Fla. 5th DCA 2000), a defendant entered a plea to one count of attempted drug trafficking.  Under § 943.059, drug trafficking was an ineligible offense.  Shock held that, even though the defendant’s plea was to an attempt (not listed an ineligible offense), the offense was sufficiently “related” to trafficking so as to be encompassed by the exclusionary language of the record-sealing statute.  Id. at 770.

It is not clear whether the holding in Shock extends beyond ‘attempts’ relating to an ineligible completed offense.

FDLE Authority to Consider ‘Relatedness’

FDLE does not possess the statutory authority to deny an Application for Certification of Eligibility on grounds that the criminal history “relates to” an excluded offense. This is true in both sealing and expunction cases.

Record Sealing

FDLE does not possess statutory authority to deny an application to seal on grounds that the criminal history at issue “relates” to an excluded offense, such as domestic violence or aggravated assault.

§  943.059(2) provides:

The department [FDLE] shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:

(a)  Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.

(b)  Remits a $75 processing fee . . .

(c)  Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation . . .

(d)  Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.

(e)  Has never secured a prior sealing or expunction of a criminal history record . . .
(f)  Is no longer under court supervision . . .

By the plain language of the statute, whether the subject criminal history “relates to” an excluded crime is not a criterion for FDLE to consider in deciding whether to approve an application to seal.

The authority of FDLE to consider “relatedness” in record-sealing applications was definitively resolved in Lazard v. State, 229 So. 3d 439 (Fla. 5th DCA 2017).  There, FDLE denied a certificate of eligibility to a defendant who sought to seal a misdemeanor charge of Contributing to Child Dependency.  FDLE justified the denial on grounds that the criminal history at issue “related to” to an underlying incident of domestic violence.

On appeal, the Fifth District Court of Appeal reversed, holding that, as long as the defendant met the statutory criteria for eligibility outlined in § 943.059(2), FDLE must issue a certificate of eligibility.  Id. at 441.    The issue of “relatedness” was reserved for the trial court to determine at an evidentiary hearing.  Id.

Record Expunctions

FDLE similarly lacks authority to deny an application to expunge on grounds that the criminal history at issue “relates” to an excluded offense.

§ 943.0585(2) provides:

The department shall issue a certificate of eligibility for expunction to a person…if that person:

(a) Has obtained, and submitted to the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which indicates:

1. That an indictment, information, or other charging document was not filed or issued in the case.

2. That an indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi . . .

3. That the criminal history record does not relate to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041 . . . without regard to whether adjudication was withheld.

(b) Remits a $75 processing fee . . .

(c) Has submitted to the department a certified copy of the disposition of the charge . . .

(d) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation . . .

(e) Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains . . .

(f) Has never secured a prior sealing or expunction of a criminal history record . . .

(g) Is no longer under court supervision . . .

(h) Has previously obtained a court order sealing the record under this section.

Thus, unlike applications to seal, whether an offense “relates to” an excluded crime is a permissible criterion for consideration in the application stages of a proposed expunction.  However, the statute vests authority in the Office of the State Attorney- not FDLE- to allege that a criminal history record is sufficiently “related.”

Moreover, the only other reference to excluded crimes in §  943.0585 occurs in the introductory paragraph, a section empowering the court, not FDLE, to determine “relatedness.”

Contact an Attorney

If you have been denied the ability to seal or expunge your record on the basis of the ‘related’ offense exclusion, contact Hussein & Webber, PL today.  We offer free consultations to all prospective clients.