If you’ve had a prior arrest or encounter with the criminal justice system, you may be wondering whether that episode will haunt you for the rest of your life and whether you can do anything about it.
The answer is “possibly,” and it comes in the form of sealing or expunging your record.
There are quite a few hurdles to clear, though, and it is certainly not a cure-all. Nonetheless, it can be a help in many situations.
First, the caveats:
Sealing or expunging can be done in Florida only once in your lifetime.
Think of it as a single get-out-of-jail-free card. The law recognizes that everyone makes mistakes, and sealing or expunging allows you to erase that mistake (at least to a certain degree) from your past. This means you must choose carefully. Don’t waste your one chance on sealing or expunging a minor offense. If you should ever be arrested on a serious charge in the future, you will want the opportunity to seal or expunge that one instead.
You can only seal or expunge one incident.
While there are some nuances in the law as to what constitutes a single incident, in general it means that if you have multiple arrests and case numbers over a period of years, you can seal or expunge only one of them. You cannot hide your entire criminal history. If you have one eligible case that is more serious than the rest, it may be worth it to seal or expunge that one.
Sealing or expunging doesn’t stop the internet.
Back when the sealing and expunging statutes were enacted, the internet as we know it today didn’t exist. It was perfectly effective to destroy the paper court file because that was the only copy in existence. Today it’s a different story. If you were arrested, inevitably your picture is on www.mugshots.com. If an article about your case appeared in the newspaper, it will remain available online. If someone downloaded your case documents from the clerk’s office website, they will still have that information. Data aggregators crawl the web harvesting information about individuals, including their criminal histories, and post in online, either for free or for a fee. While sealing or expunging does purge the official court file, it cannot solve the cyberspace problem.
Sealing or expunging doesn’t hide your record from everyone.
While having a record sealed or expunged does generally give you the right to deny the existence of the arrest, be aware that there are certain circumstances in which that right does not apply. You cannot deny your arrest if you are:
- a candidate for employment with a criminal justice agency;
- a defendant in a criminal prosecution;
- petitioning to seal or expunge your record;
- a candidate for admission to The Florida Bar;
- seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elder Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
- seeking to be employed or licensed by the Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses child care facilities;
- 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;
- seeking to be licensed by the Division of Insurance Agents and Agency Services within the Department of Financial Services; or
- seeking to be appointed as a guardian pursuant to Florida Statutes section 744.3125; or
- seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm (applies only in the determination of an applicant’s eligibility under Florida Statutes section 790.06).
Your offense might not qualify.
Both the sealing and expunction statues contain a long list of disqualifying offenses. If you find yours below, you will not be eligible for sealing or expunging under any circumstances.
Next, the mechanics:
Am I eligible to have my record sealed or expunged?
Here, too, there are a number of caveats. If you were convicted, or adjudicated guilty, that offense cannot be sealed or expunged under any circumstances. Look at your sentencing documents. If you see the terms “conviction” or “adjudication of guilt,” then the offense is ineligible.
The Florida Legislature has determined that a number of offenses are not eligible to be sealed or expunged. If your offense is listed here, it cannot be sealed or expunged under any circumstances:
- Florida Statutes section 393.135 (sexual misconduct by someone affiliated with the Developmental Disabilities Council)
- Florida Statutes section 394.4593 (sexual misconduct by an employee of the Department of Health)
- Florida Statutes section 787.025 (luring or enticing a child into a structure or dwelling for any unlawful purpose)
- Florida Statutes chapter 794 (sexual battery)
- Florida Statutes former section 796.03 (procuring a minor for prostitution)
- Florida Statutes section 800.04 (lewd and lascivious acts)
- Florida Statutes section 810.14 (voyeurism)
- Florida Statutes section 817.034 (the Florida Communications Fraud Act)
- Florida Statutes section 825.1025 (lewd and lascivious acts committed upon or in the presence of the elderly or disabled)
- Florida Statutes section 827.071 (child pornography)
- Florida Statutes section chapter 839 (offenses by public officers and employees)
- Florida Statutes section 847.0133 (obscene materials and minors)
- Florida Statutes section 847.0135 (the Computer Pornography and Child Exploitation Prevention Act)
- Florida Statutes section 847.0145 (selling or buying of minors)
- Florida Statutes section 893.135 (drug trafficking)
- Florida Statutes section 916.1075 (sexual misconduct by an employee of the Department of Children and Families or the Agency for Persons with Disabilities)
- Florida Statutes section 907.041 (pretrial detention violations)
- any violation specified as a predicate offense for registration as a sexual predator pursuant to section 775.21, without regard to whether that offense alone is sufficient to require such registration
- any violation specified as a predicate offense for registration as a sexual offender pursuant to section 943.0435, without regard to whether that offense alone is sufficient to require such registration
What is the difference between sealing and expunging?
There are quite a few types of sealing and expunging available. FDLE’s website contains detailed information on the following:
- Administrative expunction
- Court-ordered sealing or expunction
- Juvenile diversion expunction
- Lawful self-defense expunction
- Human trafficking expunction
- Automatic juvenile expunction
- Early juvenile expunction
The most common of these is “court-ordered sealing or expunction.” Both sealing and expunging give you the right to deny having been arrested or charged (only as to the record that was sealed or expunged, of course). However, there are distinct differences between the two.
Expunction pursuant to Florida Statutes section 943.0585 is available in the following circumstances:
- when an indictment, information or other charging document was not filed or issued in the case
- when a no information has been filed in the case
- when an indictment, information or other charging document has been dismissed by the prosecutor (through a document called a nolle prosequi) or by a court
- when a judgment of acquittal has been rendered by a court
- when a verdict of not guilty has been rendered by a judge or jury
Expunction results in a virtual (but not total) destruction of the record. Certain agencies (primarily those listed above—the agencies to whom you may not deny having your record sealed or expunged) may, under certain circumstances, be able to obtain a court order permitting access to the record. If those agencies conduct a background check, they will receive the following response: “Criminal History Record Expunged Pursuant to Florida Statutes 943.” In other words, the fact that the record exists will never disappear.
Sealing pursuant to Florida Statutes section 943.059 is available to those who have had not had their case dismissed but have not been adjudicated guilty or convicted. If your sentencing document says “adjudication withheld” and you meet the other requirements (no previous sealings or expunctions, no disqualifying offenses), you may be eligible for sealing.
Sealing does not destroy the record; it is simply placed under highly-restricted access. However, it will always be available without a court order to:
- criminal justice agencies for purposes such as conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law
- state court judges to assist them in making case-related decisions
- certain agencies in the scope of carrying out their licensing, access authorization, and employment functions
What is the process?
The processes for sealing and expunging a record are very similar. There is quite a bit of paperwork involved. Many people find it helpful to retain counsel to handle all aspects of the application.
First, you must arrange to have your fingerprints taken by a law enforcement agency. Second, you must gather certified copies of certain documents in your case file. Next, you must apply to the Florida Department of Law Enforcement for a certificate of eligibility, which is valid for twelve months from the date of issuance. Once the certificate is received, you must sign an affidavit (a sworn statement) attesting that you meet all the requirements set out in the statute. After that, you must obtain the prosecutor’s position on the matter so it can be reported in the petition that is then filed with the court. The judge reviewing the position may require that a hearing be held in order to hear argument from both sides before granting or denying the petition.