Under Florida law, criminal history records in Florida are public records unless sealed or expunged. The State of Florida creates a criminal history record when a person is arrested and fingerprinted, and this record includes the disposition of that arrest, whether it is a conviction, acquittal, pre-trial dismissal, or other disposition. Expungement and sealment are generally available for the one-time offender. The person who has made, or been the victim of, a mistake. A serious, significant mistake.
Florida Statutes, §943.0585 and §943.059, detail the criteria for eligibility to have adult criminal history records sealed or expunged. In addition to these requirements, an individual must obtain a Certificate of Eligibility as set forth in the aforementioned statutes. The issuance of a Certificate of Eligibility only means that the certificate holder has met the requirements of Florida law to be eligible for sealment or expungement, and does not mean that a criminal history record will, in fact, be ordered sealed or expunged.
Expungement means petitioning the State of Florida to have a criminal record physically destroyed or removed from general review. Sealment is defined as having a criminal record taken from public view and access. The only way to then access such record is by court order to have it “unsealed.” Multiple charges under one case number may be expunged or sealed.
Records of felonies may be expunged or sealed but there are a long list of exceptions to this rule. An experienced criminal defense attorney like myself can assist in sorting through this list to insure a criminal record is eligible for expungement or sealment. The entire process itself may take anywhere from four to six months and requires the representation of a knowledgeable criminal defense attorney familiar with Florida’s requirements for the expungement and sealment of criminal records.
Florida law allows you to expunge or seal a Florida criminal record history, including all non-judicial criminal records and judicial records, related to one criminal episode, and therefore is generally available to those who have made one mistake and one mistake only. This may be because of an inaccurate criminal record, a mistaken arrest, or for an offense incurred as a juvenile. The State of Florida is allowing individuals the opportunity to eliminate this one mistake from their criminal history records.
Individuals need to check their criminal histories before petitioning a Florida criminal justice agency. Under both Florida and federal law, individuals have the right to request, at no charge, a copy of their criminal records for the purposes of reviewing it to ensure that it is both accurate and complete, known as a Personal Review. The requesting party may examine the record obtained through the Personal Review process for accuracy and then challenge any information therein believed to be inaccurate or incomplete.
The following criteria must be met for an individual to obtain an expungement or sealment:
• There must be no record of a previous sealing or expungement of criminal records for the individual;
• There must be no ongoing court supervision, probation, pretrial release or house arrest of the individual applying to have a record sealed or expunged;
• A record exists but charges are never filed, or charges were dropped or dismissed in court;
• A record exists but the defendant was never formally convicted of any criminal offense by a judge, including by plea or through a trial;
• A record exists where a defendant is charged and pleads guilty or no contest, but conviction is withheld;
• A record exists where a defendant is charged and found guilty, but the conviction was withheld;
• Any criminal case which was either dismissed or the defendant was found not guilty of the offense;
• A pretrial diversion program is completed and charges are dropped, such as in the case with a offense committed as a juvenile;
• A first-time offender may be sentenced before a judge, but the court withholds the adjudication of guilt. One is not considered guilty until the judge declares such.
The court shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2) or subsection (5) of 943.0585. The party petitioning for expungement must also make a sworn statement attesting to not having been adjudicated guilty for any criminal offense of other felonies and misdemeanors specified by 943.051(3)(b), or stemming from the arrest to which the petition pertains.
If you have questions about expungements or sealments under Florida law, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.417.9378.