Dimond Kaplan & Rothstein, P.A., located in West Palm Beach, FL, can help with sealing and expunging Florida criminal records.
Having a criminal record in Florida can be an impediment to an individual when looking for a job, applying for credit, renting a home or apartment, or otherwise being the subject of a personal background check. Even having an arrest record can prevent an otherwise qualified and capable person from attaining a position of full equality in our society. Regardless of the circumstances, being arrested for any reason –whether or not there was ever an admission or finding of guilt- still carries a stigma that can penalize its bearer both in subtle and not so subtle ways.
That is why, in most states, for example, a juvenile’s crime record can be destroyed at a certain age (24, in Florida), as long as the individual committed a non-violent crime, and no other further criminal act up till that time. In this regard, the law recognizes that youthful indiscretions should not be a lifelong burden and that juvenile offenders should be given the opportunity to function in society free from any taint of criminality. Unfortunately, that same automatic expungement of criminal records does not extend to adult offenders – or even to those adults who have been arrested but never actually convicted of a crime.
In fact, many adults in Florida, who may have been arrested, whether for a felony or a misdemeanor, but have either:
- not been charged with a crime after their arrest (No Information, No Bill)
- had their formal charges dropped for any reason (Nolle Prosequi)
- had their cases dismissed by the court
- or were found guilty by a judge or jury but the court withheld the adjudication of guilt
Many mistakenly believe that their arrest and/or court records disappear from public scrutiny because they never were formally convicted for the crime for which they were arrested in the first place. Unfortunately, that is not true.
In Florida, a criminal history record is created whenever a person is arrested and fingerprinted. The record is public and remains so whether the case ends in conviction, acquittal, a dismissal of charges before, during or after a trial, or any other disposition. That means that many people who have been arrested but are not, in fact, criminals, still carry the stigma of an arrest record – one that can be accessed by any potential employer, financial institution, landlord, or any other member of the public.
State of Florida Policy
Fortunately for some, the state does allow certain adult arrest records to be either sealed from public view (only available to most government agencies), or entirely expunged (only available to certain government agencies upon a court order), so that a non-convicted individual can lawfully deny to a private employer, for example, that he or she was ever arrested at all, and thus be free from the repercussions that a criminal record can elicit.
However, though available, the procedures for sealing or expunging one’s record is complex and the laws and rules that cover them (including Florida Statutes s.943.0585 – s.943.059, and Chapter 11C-7 of the Florida Administrative Code), are intricate and have been rewritten and amended many times over the years. That is why it is advisable to contact a knowledgeable lawyer if you are considering petitioning the court to have your criminal record sealed or expunged. Meanwhile, the following is a brief overview of the issues you will encounter and the things you need to know:
If you pled guilty, or no contest, to the charges for which you were arrested, or were found guilty after a trial, but adjudication was withheld (you were not convicted), and you have completed any court ordered probation, the reimbursement of any court costs, and/or any restitution ordered by a judge, you should apply for a sealing.
Once your CeO is issued, you will need to submit it to the court clerk. In return, you will receive some additional forms to fill out. You may, or may not have a formal hearing. If your petition is accepted, the court will issue an Order to Seal your records. That order will then be sent by the Florida Department of Law Enforcement (FDLE) to all relevant agencies and government departments that have a copy of your criminal record which will now become confidential and no longer subject to Florida’s public records laws.
In addition to you and your lawyer, only the FDLE and other criminal justice agencies will retain a copy. (However, while the general public – including any prospective employer or any of the companies that buy criminal records – will no longer have access to your record, the FDLE may reveal the existence of a sealed record to certain parties, i.e. the Dept. of Children and Families, The Florida Bar, or even any public or private school, if you subsequently apply for employment or a professional license. Also, your record will be made known if you attempt to purchase a firearm and are subject to a criminal history background check.)
If you have never been adjudicated guilty of a criminal offense because you were never charged (No Information), the charges against you were dropped (Nolle Prosequi), or they were dismissed by the State Attorney or a court, and you were never brought to trial for the reason you were arrested, and all other qualifications are met, you should apply for an immediate expunction. (Also, you can apply for an expunction of a record that was initially ruled ineligible – because, for example, you did go to trial, but were found not guilty – but only after the record has been sealed for at least 10 years.
The process for getting your records expunged is essentially the same as getting them sealed, but with one extra step – you will need to obtain the State Attorney’s approval on your application for a CoE for expunction. After an Order to Expunge is granted by the court, your record will be physically destroyed by every criminal justice agency (except the FDLE) that has custody of it. It can never be seen by the public and cannot be revealed to any other government entity without an order from a “court of competent jurisdiction.”
The Process: Exemptions
First – a person will not be eligible for sealing or expunction of a criminal history record if he or she ever was found guilty, pled guilty, or pled no contest (nolo contendere) – even if the adjudication of guilt was withheld – for any violation of the following enumerated offenses:
- Domestic Violence (as defined by Fla. statutes)
- Aggravated Assault
- Home Invasion Robbery
- Aggravated Battery
- Illegal Use of Explosives
- Conspiracy to Commit any of these crimes
- Child Abuse
- Sexual Misconduct with a Mentally Ill Person
- Abuse of an Elderly Person
- Abuse of a Disabled Person
- Sexual Misconduct with a Developmentally Disabled Person
- Luring or Enticing a Child
- Procuring a Person under 18 for Prostitution
- Scheme to Defraud/Organized Fraud
- Sexual Battery
- Lewd Offense in the Presence of an Elderly Person
- Lewd Offense in the Presence of a Disabled Adult
- Lewd Assault on a Child under 16
- Sexual Activity with a Child 12 to 18
- Offense by Public Officer of Employee
- Burglary of a Dwelling
- Showing Obscene Literature to Minors
- Computer Pornography
- Aggravated Stalking
- Selling or Buying Minors
- Trafficking in Drugs
- Sexual Misconduct with a Mentally Deficient or Mentally Ill Person
- Any offense that would require registration as a sexual predator or sexual offender
- Manufacturing a Controlled Substance
- Act of Terrorism
- Attempts to commit any of these crimes
Second – Being found guilty or pleading guilty to any crime not listed above that ultimately resulted in a conviction will likewise render an individual’s record ineligible for sealing or expunction.
Third – A person, who has been adjudicated guilty of any criminal offense in any other jurisdiction for any felony and for certain misdemeanors, whether or not related to the charges that a person is applying for, is ineligible to have his or her records sealed or expunged.
Fourth – To qualify for either procedure, an individual must not have had a criminal record sealed or expunged in the past or have a case pending for sealing or expunction – it’s a once in lifetime opportunity.
The Process: Qualified Applicants
However, any offense, including those on the list of enumerated felonies, can be sealed and/or expunged if the charges were dropped (Nolle Prosequi, meaning “no prosecution”), or the case was dismissed by a state prosecutor or a court. In addition, the records pertaining to any non-enumerated offense can be sealed and/or expunged even if a person was found guilty, but the court, for any reason, withheld an adjudication of guilt. (A judge can find you guilty of an offense and may order you to serve probation and/or require you to complete certain requirements such as community service. But, as long as the judge withholds the adjudication of guilt you are not convicted of the offense.)
If any of the above applies to your situation, you may are eligible to file for a sealing or expunction. First, you must request an application for a Certificate of Eligibility (CoE) from the Florida Department of Law Enforcement (FDLE). On it, you must provide the details of your arrest, a copy of your fingerprints, and a certified disposition of your case, available from either the law enforcement agency where you were arrested, or the court where your case was tried. If the FDLE determines that you are eligible, it will issue you your Certificate of Eligibility. You must then use the CoE to petition the court in the jurisdiction where the arrest occurred to approve your request.
If a past criminal record is preventing you from getting a job, securing a loan, renting an apartment, or holding you back for any other reason, and you believe that you may be eligible to have your record sealed or expunged, you should contact our office. Our knowledgeable staff can help you navigate through the state-sanctioned process, so that you can put any past transgression or wrongful arrest behind you and move on with your life. Please do not hesitate to contact us for a free consultation or case evaluation. We are happy to meet or speak with you anytime about a case in West Palm Beach or South Florida. Our legal team is experienced, aggressive, compassionate, and will fight for your rights!