Florida Expungement Frequently Asked Questions and Answers
Q1. How does one qualify to seal a Florida criminal record?
A1. Arrests for specified offenses resulting in a finding of guilt by the trial court may still be sealable under Florida Law. The judge must have withhold the adjudication of guilt and the offense cannot be an enumerated offense prohibited by statute. So long as the defendant have never been adjudicated guilty in any other offense he/she will probably qualify to have his or her criminal arrest record sealed.
KEY POINTS: An adjudication of guilt will prevent you from being able to expunge your record (See Question #15 for definition of adjudicated guilty). In Florida, the courts can withhold adjudication (also known as "adjudication withheld," and "withhold of adjudication") and thereby maintain your eligibility to have your record sealed or expunged.
Q2. How does one qualify to expunge a Florida criminal record?
A2. All arrests that result in a dismissal or nolle prosequi (State drops case) can be expunged so long as you have never been adjudicated guilty or delinquent for any other arrest. This means all prior arrests must have also been dropped or had adjudication withheld. The expungement process can begin immediately after the dismissal. Expunging a criminal arrest record means to remove that arrest record from the public record.
KEY POINTS: Florida law now allows for a person that was acquitted after a trial to expunge their arrest record. Again, you cannot have an adjudication of guilt for any other criminal allegation, past or present, to remain eligible.
Q3. Why is it sometimes referred to as "Florida criminal arrest history" rather than "Florida criminal record?"
A3. Many people believe that if their case was dropped or dismissed they don't have a record. This is inaccurate. A record begins once you've been formally arrested. The case may have been dropped, dismissed, or nolle prosequi but your arrest history remains. Anyone who wants to check your past can discover that you were arrested and for what you were arrested. Hence, the term arrest history better reflects the nature of a sealed or expunged record and the procedures involved in accomplishing it.
KEY POINTS: Even if you were not formally arrested but were instead given a notice to appear you may still have a criminal arrest history. How? Private companies buy public record information from government agencies such as the Clerks Office. These private companies store and sell your information to whoever wants to buy it. On top of that, these private companies don't have a clue as to what the difference is between an adjudication withheld and an adjudication of guilt.
KEY POINT TWO: When reviewing a criminal history the term adjudication withheld may not be used. Instead the initials AW or WH may be substituted. Adjudicated guilty is hardly ever used. Instead the term "convicted" is used.
Q4. What is the difference between sealing and expunging my Florida criminal arrest history?
A4. The short answer is very little as far as its
effect on your goal - to eliminate from public view your criminal
history. The technical answer is that a sealing does not require
certain agencies to actually "destroy" their records whereas a court
order expunging records does. Florida, unlike many other states has
two methods for removing a criminal history record from the public
records. Most of us have heard of "expunging" a record but the idea
of "sealing" a record is new. What is the difference?
The first thing you need to understand is that the qualifications
for sealing or expunging are different. Each requires that you not
have been previously adjudicated guilty or adjudicated delinquent of
any offense. The term "previously" refers to before the date you
apply for a sealing or expungement (rather than before the date of
the arrest).
If you were arrested and the case was ultimately dismissed or dropped (successful completion of pretrial diversion program normally ends with the case being dropped) then you qualify to have that arrest history expunged. Just remember, to have your record "expunged" you case needs to have been dropped or dismissed.
If you were arrested and ultimately pled guilty or no contest AND had adjudication of guilt "withheld" or "withhold adjudication" or "adjudication withheld" (see question 16) then you may qualify to have your record sealed. Remember, to "seal" a criminal history is a two-step process. First, adjudication of guilt must have been "withheld", and second, the offense must qualify.
Both sealing and expunging a record removes the information from public records. Both require that the information be made confidential. An expungement goes one step farther and requires that the arresting agency, the sheriff's office, and the state attorney's office actually physically destroy their records of the arrest.
Most law enforcement agencies destroy their physical records after several years maintaining only an electronic record of the arrest. The Court Order will require that agency to remove the remaining electronic record from public access.
KEY POINTS: Confused - just give us a call (407) 841-5555 and we will be able to tell you what you qualify for before you decide to hire us.
Q5. Can the public access a Florida sealed record easier than an Florida expunged record?
A5. No. Both procedures require the court, state attorney, and the law enforcement agencies to remove all information regarding the sealed or expunged record from the public view. A Court Order is necessary before a court record can be unsealed after a sealing or expungement has taken place.
KEY POINTS: The difference between sealing and expunging is linguistic. There really is not a difference from your stand-point. However, one or the other has to be done before any protections will apply. The actual difference concerns how the affected agencies must deal with your records - whether they must be destroyed (expunged) or made confidential (sealed).
Q6. Is there a time requirement before I can seal or expunge my Florida criminal arrest history?
A6. No. So long as your case disposition is completed your criminal arrest history can be sealed or expunged. Your disposition is completed when you are no longer under any conditions of the court.
KEY POINTS: But the State can have you waive your ability to have your record sealed or expunged. Usually this occurs if you agree to enter a pretrial diversion program. Usually the delay is three years but each pretrial diversion contract should be read thoroughly before signing.
Q7. I pled to an offense. Can I still have it expunged?
A7. You cannot have it expunged because it was not dropped or dismissed prior to trial or if you were acquitted after a trial. However you may qualify to have your case sealed if adjudication was withheld.
KEY POINTS: Often times people that come to us are
very unfamiliar with the law. Even if you think you pled to an
offense we may be able to help. As answered above sealing provides
the same protections as expungements. If you are eligible to have
your record expunged we will find that out and that will be our
goal. If you are not eligible for expungement you may be eligible
for sealing.
Q8. Can I seal or expunge my Florida criminal arrest history on my own?
A8. Yes. The court system in this country allows for people to represent themselves (pro se). However, no one is required to walk you through the procedures of a sealing or expungement. Sometimes judges become frustrated by pro se litigants because they must remain neutral and therefore must refrain from appearing partial or biased and, hence, cannot help you. The opposing party on a sealing or expungement petition is the State of Florida represented by the state attorney's office. Many assistant state attorney's will argue against the court granting your request and since it is discretionary, the court can deny a petition even though you otherwise qualify. The potential headaches and delays created by trying to wade through the paperwork and procedures pro se makes hiring an attorney a sensible and cost effective alternative.
KEY POINTS: If time is of the essence - hire an attorney. Expunging a criminal arrest history record takes on average 6 to 9 months. There are very easy mistakes that can be made that can quickly double the amount of time. Hire an attorney that knows what he is doing - me.
Q9. Once started how long does it take for the record to be removed from public view?
A9. This is a good question. It can take several months from starting the process to completion. It depends upon the staffing of the agencies that are part of the process. Currently, the average time from start to finish is between 6 and 9 months. Bottom line: Don't delay.
KEY POINTS: Once the Order has been processed your record is no longer "public." However, right now there are private companies that collect "public" records to sell. It takes them about 6-12 months to cycle through the system and "lose" your record once it has been sealed or expunged. We have no control over these private companies whose defense is always "it's a public record." You may have a claim for monetary losses if your sealed or expunged record information is released by one of these companies.
Q10. What if FDLE denies my application for a "Certificate of Eligibility?"
A10. This is another reason to seek the advice of an attorney beforehand. First, you are out the $75 you sent to FDLE. Second, there are legitimate reasons FDLE would deny a Certificate of Eligibility. They may deny it because the offense is barred from being expunged or sealed or it may be denied due to a procedural error that may be correctable if you know what you are doing. We provide our clients with legal services to obtain Certificates of Eligibility that by all accounts should be issued. We also advise our clients of potential reasons why FDLE would not issue a Certificate of Eligibility before they spend the $75.
If a person is denied a Certificate of Eligibility there are two possible paths to take to correct the situation. First, determine if the reason is correctable. Often times the FDLE will issue a Certificate of Eligibility once the error is corrected. Second, if there is no error the only option is to address it with the courts. We are experienced in both avenues of relief.
Q11. Why should I hire your law Office over a local office?
A11. We have extensive experience actually petitioning for this request. We have studied all the statutes, cases, administrative rules, and attorney general opinions on this subject. This knowledge and experience helps speed the process along. It also ensures that your record(s) have the best chance of being sealed or expunged the first time. Moreover, if you are denied this request we are experienced in appellate practice as well. If grounds exist to appeal FDLE's refusal to issue a Certificate of Eligibility or the trial court's denial of the Petition - WE can seek review from a higher court.
Distance has little to do with this request. Most of the initial paperwork can be done with a phone call and express mail. Furthermore, Eric J. Dirga can travel throughout the State of Florida if a hearing is necessary.
Finally, our fees are very reasonable. Before you ever pay a dime for an expungement or sealing we will tell you if you qualify for a certificate of eligibility.
Q12. Are Juvenile records automatically expunged?
A12. I was of this same opinion for many years. I always believed that a person was wasting their money and their one shot when they sealed or expunged a juvenile record. But, lo and behold, juvenile records are not automatically expunged. More disturbing is that somehow the private database companies that sell information get juvenile information.
The good thing is that now the legislature allows for juveniles to expunge records that go through qualified diversion programs without using up that persons one "sealing" or "expungement." This process must be commenced within 6 months of completion of the diversion program. Additionally, I now recommend that juveniles and their parents seriously consider sealing or expunging their record if the first option is not available.
Q13. How many times can a person have his or her Florida criminal arrest record expunged or sealed?
A13. Under Florida law only once - unless he/she had a record expunged as a juvenile through a qualified diversion program. Additionally, mistaken arrests may be administratively expunged without using your one opportunity.
Q14. Can Florida driving records be sealed or expunged?
A14. The Florida Department of Law Enforcement is only responsible for the records they maintain, as are the other law enforcement agencies that receive a seal or expunge Order from the court. However, by statute, these agencies are required to forward said Order to other agencies that they know have information regarding the particular arrest. Although there is no case on point, an Order to Seal or Expunge a criminal history arrest for a traffic offense should have in it a requirement that a copy be sent to the Florida Department of Highway Safety and Motor Vehicles main office in Tallahassee. The DMV may deny this and therefore it may be necessary to pursue it further.
Q15. What is the difference between "adjudicated guilty" and "adjudication withheld?" or What is the Definition of "adjudicated guilty."
A15. When you enter a plea to an offense the judge
can either adjudicate you guilty (if an adult), adjudicate you
delinquent (if a juvenile), or "withhold adjudication" of guilt or
delinquency. Only charges that were either dropped or had a
"withhold of adjudication" can be expunged or sealed.
You must understand that when we talk about sealing or expunging a
record, we are talking about "arrest records." That means you have a
record from the time of arrest and it does not disappear because
your case was dismissed or dropped.
In Florida a defendant can be found guilty of an offense but not be "convicted" of it. When a judge "withholds" adjudication of guilt the defendant is not "convicted" although he or she is still "found to be guilty" of the offense. Being "found guilty" and being "adjudicated guilty/delinquent" are two separate things.
A judge can find you guilty of an offense and in doing so order you to serve probation and require you to complete certain requirements such as community service. So long as the judge "withholds" the adjudication of guilt you are not convicted of the offense. Offenses that have adjudication "withheld" may be eligible for sealing.
Offenses that were dropped or dismissed can be expunged.
An offense that you have been convicted of (adjudicated guilty) cannot be sealed or expunged.
KEY POINT: The best way to determine if you have had the "adjudication of guilt" withheld is to look at your final disposition paperwork from the Clerk of Court. You should have received this when you case was resolved. If you do not have it we can get it for you.
Q16. Why should I bother sealing or expunging my Florida criminal arrest record now?
A16. The law that regulates the qualifications for getting your record sealed or expunged is determined at the time that you petition the court. This means that the offense you were arrested for 10 years ago that may have been eligible to be sealed or expunged at the time of your arrest may be prohibited from this relief next year due to a change in the law.
The legislature in Florida has continually limited who and what can be sealed or expunged by amending the current statute. The expungement statute has been amended at least 7 times since 1992 and the sealing statute has been amended 6 times in the same period of time. By waiting all you do is increase the risk that your criminal record will become ineligible to seal or expunge.
To Retain Orlando Criminal Defense Attorney Eric J Dirga
For a free consultation and eligibility analysis please contact us today. We will set up a consultation over the phone or in person to see if you are eligible.
