August 14, 2018

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NEED TO SEAL OR EXPUNGE YOUR FLORIDA CRIMINAL HISTORY RECORD?

Florida law allows a person who has never been convicted (adjudicated guilty) of a crime to seal or expunge their arrest record. Doesn’t seem that a person would have to be concerned about having their criminal history record sealed or expunged if adjudication was witheld or charges were dropped or dismissed. But the Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition. Doesn’t seem fair, but there is light at the end of this tunnel.

Let’s start with defining the differences between sealing a criminal record and expunging it. When a criminal history record is sealed, the public will not have access to it. However, certain governmental entities have access to sealed record information in entirety. Subject to limited exceptions, once the record is sealed, the subject of the arrest or conviction may lawfully it if the question is asked on an employment application, school enrollment application or the like. The information of record will not be disclosed if a background criminal record check is run by a potential employer. The good news is that in most cases a ‘withold adjudication’ can be sealed. The Florida Statute addressing the court-ordered sealing of criminal history records is (s.943.059).

When a record has been expunged, those entities which would have access to a sealed record would have no access to the expunged one without a court order. They would only receive a caveat statement indicating that “Criminal Information has been Expunged from this Record.” If you are arrested but not formally charged by the state, the case is nolle prossed (dropped), or if it is dismissed by the judge, then you are eligible for expungement. However, the person whose record has been expunged must divulge criminal history when applying for employment with a criminal justice agency, applying for admission to the Florida Bar, becomes a defendant in criminal prosecution, seeks to be employed by the Department of Children and Family Services and certain other agencies. The Florida Statute addressing the court-ordered expunction of a criminal history records is (s.943.0585).

In order to obtain a Certificate of Eligibility to petition the court to seal or expunge a criminal history record, an application must be submitted to the Florida Department of Law Enforcement (FDLE)
along with a $75 fee. The application can be completed on the FDLE site listed below.

Listed are only some of the offenses (committed, attempted or conspired) that would disqualify a person from being eligible to have their record sealed or expunged once the defendant was found guilty or pled guilty or no contest, even if adjudication was withheld:  Aggravated Assault;  Home Invasion;  Stalking;  Child abuse;  Homicide; etc.
For a complete list see Florida Statute 907.041.

A request for a certificate of eligibility for an expunction or sealing of a criminal history record will be denied if the defendant was found guilty or pled guilty or no contest, even if adjudication was withheld. If you desire legal assistance, fees can run from about $350 to $800.

Links
1. FDLE – www.fdle.state.fl.us/content/getdoc/c83dd888-ef7a-448e-9a96-ba69fc4181f7/seal-and-expunge-home.asp
2. Florida Statutes – www.leg.state.fl.us/welcome/index.cfm
3. Florida Administrative Code – www.flrules.org/default.asp    see  (Chapter 11C-7)

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