Sealing or Expunging of Criminal Records in Florida
Almost every time I have been successful in getting my clients case dismissed, acquitted, or if my client takes a favorable plea agreement I negotiate on their behalf involving no formal conviction, the very next question I receive is can I get this off my record?
That is often a complicated question based on three factors: your prior record; the disposition of the case; and the nature of the charge. Rest assured, my main goal is to get your case dismissed and then your record expunged so you can live in peace without a record of this incident. I even represent clients in cases where the prosecutors frivolously contest your sealing or expungement.
Can you seal or expunge your criminal record?
In order to Seal or Expunge your criminal record it must be determined that you are eligible to do so. The Florida Department of Law Enforcement (FDLE) is the governing body who determines whether or not a person is eligible to Seal or Expunge their criminal record. The following statutes may be referred to in order to determine eligibility:
If you have ever been adjudicated guilty (or adjudged delinquent as a juvenile) of any misdemeanor or felony crime, then you will not be eligible to seal or expunge your criminal record. This includes a conviction for DUI, Reckless Driving or Driving while license suspended (DWLS).
In order to Seal or Expunge your criminal record, the case that you seek to seal or expunge must be closed. This would include the completion of all court supervision including any probationary terms.
What is the Difference between Sealing and Expunging my criminal record?
A criminal record that is sealed will be kept on file at both the courthouse and the arresting police agency. The record will be placed in a sealed envelope and will not be viewable by the public unless an order to unseal the record is obtained from the court. FDLE will also keep a record of the arrest. The record will also be cleared from the court’s computer database by the clerk of the court.
A criminal record that is expunged will be destroyed by both the Clerk of the Court and that arresting police agency. It will also be erased from the court’s online computer database. The only agency that will retain a record of the arrest will be FDLE.
How many criminal records can I Seal or Expunge?
You may only Seal or Expunge one criminal record once in your lifetime. If you have two prior records that arose out of separate arrests (that could both be eligible for sealing or expunging), you would have to choose between the two records and decide which one to seal or expunge.
If you have numerous criminal cases which directly relate to the same original arrest, then the court may, at its sole discretion, order the expunction of your criminal history record pertaining to more than one arrest.
Which criminal records may be Expunged?
In order to expunge your criminal record you must have received one of the following results:
- No Action – This means that after you were arrested, the Office of the State Attorney reviewed the circumstances of your arrest and decided not to file any charges against you.
- Nolle Prosse (Dismissal) – This means that after you were arrested, the Office of the State Attorney did file formal charges against you but later decided to dismiss them. This may be because of lack of evidence, problems with witnesses, participation in a pre-trial intervention program or many other possible reasons.
- Acquittal by a Judge or Jury at trial – The means that you had a trial and were found not guilty of the charges brought against you by the Office of the State Attorney.
Which criminal records may be Sealed?
In order to seal your criminal record you must have received the following result:
- Adjudication Withheld – This means that either you entered into a plea or went to trial and the court withheld the conviction against you.
Which criminal records may not be Sealed or Expunged?
You may not seal or expunge your criminal record if you have received the following result:
- Adjudicated Guilty – This means that you were found guilty by the court after a plea or trial and that the court convicted you of the crime charged.
Charges that may never be Sealed:
- Aggravated Assault;
- Aggravated Battery;
- Illegal use of explosives;
- Child abuse or Aggravated Child Abuse;
- Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
- Aircraft piracy;
- Sexual Battery;
- Lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of 16 years;
- Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of a person in familial or custodial authority;
- Burglary of a dwelling;
- Stalking and Aggravated Stalking;
- Act of Domestic Violence as defined in §741.28;
- Home-invasion Robbery;
- Act of Terrorism as defined by §773.30;
- Manufacturing any substances in violation of §893;
- Attempting or conspiring to commit any of the above crimes;
- Sexual misconduct with developmentally disabled person and related offenses;
- Sexual misconduct with mental health patient and related offenses;
- Luring or enticing a child;
- Sexual Battery and related offenses;
- Procuring person under 18 for prostitution;
- Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
- Florida Communication Fraud Act (Scheme to Defraud or Organized Fraud, as used in §817.034);
- Lewd or lascivious offense upon or in presence of elderly person or disabled person;
- Sexual performance by a child;
- Offenses By Public Officers and Employees;
- Showing, selling, etc., obscene literature to minor;
- Computer pornography;
- Selling or buying of minors;
- Trafficking in controlled substances;
- Sexual misconduct with mentally deficient or mentally ill defendant and related offenses
A violation of any offense qualify for registration as a sexual predator under §775.21 or for registration as a sexual offender under §943.0435.
If my criminal record is expunged, do I have to tell employers who ask if I have a record?
Once your criminal record is expunged, you may deny or fail to acknowledge your criminal record. However, there are a few exceptions where a person must disclose an expunged record:
- The person is a candidate for employment with a criminal justice agency;
- The person is a defendant in a criminal prosecution;
- The person is seeking to seal a record under §943.059;
- The person is a candidate for admission to The Florida Bar;
- The person is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, 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 developmentally disabled, the aged, or the elderly as provided in §110.1127(3), §393.063, 394.4572.(1), §397.451, §402.302(3), §402.313(3), §409.175(2)(i), §415.102(5), chapter 916, §985.644, chapter 400 or chapter 429.
- The person is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or
- The person is seeking authorization from a seaport listed in §311.09 for employment within or access to one or more of such seaports pursuant to §311.12.