This will be the first in a series of blogs to address the key player’s roles in the Florida expungement process. This post will address the role of the reviewing prosecutor when he/she receives a Florida Department of Law Enforcement [FDLE] application to expunge (the application is to seal or expunge but is not required to be signed by a reviewing prosecutor if the applicant is only seeking to seal their record). In order to obtain a Certificate of Eligibility to expunge a record, the State Attorney or Statewide Prosecutor must sign off on the application.

Application to Expunge Florida Record

In order for an applicant (a defendant seeking to have his or her record expunged) to obtain a Certificate of Eligibility to Expunge from FDLE the application must be signed by the State Attorney’s Office. The signature is not required if the applicant is seeking to seal his or her record.

Florida Administrative Code 11C-7.006

Florida Administrative Code 11C-7.006 simply indicates that “[t]he appropriate state attorney or statewide prosecutor should complete section B of the Application for Certification of Eligibility and have it certified.” This is typically delegated to a reviewing prosecutor within the office.

The Application to Seal or Expunge a Record

The application instructs the reviewing prosecutor to sign indicating that the applicant is eligible to have his record expunged under the following circumstances:

1. An indictment, information, or other charging document was not filed or issued in the case; OR
2. An indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi by the state attorney or statewide prosecutor, or was dismissed by a court of competent jurisdiction; OR
3. (a) None of the charges (acts) related to the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains resulted in an adjudication of guilt or of delinquency; AND
   (b) The record of the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains has been sealed for at least 10 years; AND
   (c) None of the charges (if any) for which adjudication of guilt or of delinquency was withheld relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s.796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071 chapter 839, s.847.0133, s. 847.0135. s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s.907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s.943.0435.

Signing Does Not Indicate the Position of the State Attorney

By indicating with signature that the applicant is eligible based on the above criteria, the application specifically states that the prosecutor’s signature “does not imply that the applicant has satisfied all other statutory eligibility criteria, or that this Office would not oppose a petition to expunge the above-referenced case.” In other words, the processing of the application is strictly administrative and does not reflect the position of the State Attorney’s Office.

Indicating Ineligibility Based on Statutory Requirements

The reviewing prosecutor can also sign the application indicating that the applicant is not eligible to have his or her record expunged due to the following criteria:

• One or more of the charges (acts) related to the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains resulted in an adjudication of guilt or of delinquency;
• OR, BECAUSE OF ONE OR MORE OF THE FOLLOWING REASONS:
  • The record of the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains has not been sealed for at least 10 years;
  • One or more of the charges for which an adjudication of guilt or of delinquency was withheld relate to a to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.800.04, s. 810.14 s. 817.034, s. 825.1025, s. 827-071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435;
  • Records available to this Office disclose some other ground of statutory ineligibility (e.g., adjudication of guilt in a different case; previous expunction or sealing).

Signing the application indicating that the applicant is not eligible to expunge is based on statutory requirements. Regardless of how the prosecutor signs off, FDLE will again review the eligibility of the applicant when it receives the application.

Role of Reviewing Prosecutor

The role of the reviewing prosecutor is simple. Either sign the application indicating that the applicant is eligible or that the applicant is ineligible based on statutory criteria. It cannot be based on arbitrary reasons. The reviewing prosecutor should return the application to the applicant in a reasonable amount of time (applicant is responsible for providing a self-addressed stamped envelope).

Application for Certificate of Eligibility is Not Void if Ineligible to Expunge

If the reviewing prosecutor indicates that the applicant is not eligible to have his or her record expunged and the applicant is otherwise qualified to have the record sealed – the application itself is still good. The applicant can send it along with the supporting documentation to FDLE in order to obtain a Certificate of Eligibility to Seal the record.

For More Information Emailed to You

Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.