Attorney Eric J Dirga, PAIn recent years, Florida has added a couple more types of expungements to the current laws. These are the Human Trafficking Expungement, meant to address crimes committed by people who were being “trafficked” against their will, and the Lawful Self-Defense Expungement. This article addresses the Lawful Self-Defense Expungement. The Human Trafficking Expungement will be addressed in a later article.
Exception for Lawful Self-Defense
Tucked away in section 943.0585*, Florida Statutes (the expungement statute), is the exception for the strict eligibility requirements for a record expungement. It is specifically for those people whose charges were dropped or never filed on because the prosecuting authority determined (“found”) that the defendant acted in “lawful” self-defense. The pertinent part of the statute is located in subsection (5) of the statute:
*As of October 1, 2019, the Lawful Self-Defense Expungement will be found in section 943.0578, Florida Statutes.
(5) EXCEPTION FOR LAWFUL SELF-DEFENSE.—Notwithstanding the eligibility requirements prescribed in paragraph (1)(b) and subsection (2), the department shall issue a certificate of eligibility for expunction under this subsection to a person who is the subject of a criminal history record if that person:
(a) Has obtained, and submitted to the department, on a form provided by the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which states whether an information, indictment, or other charging document was not filed or was dismissed by the state attorney, or dismissed by the court, because it was found that the person acted in lawful self-defense pursuant to the provisions related to justifiable use of force in chapter 776.
(b) . . .
(c) This subsection does not confer any right to the expunction of a criminal history record, and any request for expunction of a criminal history record may be denied at the discretion of the court.
(d) Subsections (3) and (4) shall apply to expunction ordered under this subsection.
(e) . . . [.]
This form of expungement grants all the same benefits as the standard expungement. See, section 943.0585, Florida Statutes.
Analysis of Section (5)
The first paragraph of this section states that the normal eligibility requirements for a “Lawful Self-Defense” expungement do not apply. “Notwithstanding” sections (1)(b) and (2), which require that the petitioner have (1) never been previously adjudicated guilty (convicted) or adjudicated delinquent (as a minor) and (2) that he or she has never secured a prior expungement or sealing under Florida law. This means that a person is eligible to have their arrest record expunged if it derives from an act of “lawful” self-defense.
What is Lawful Self-Defense
⛔ WARNING: The use of violent force against another, even if you believe it is self-defense can result in criminal charges against you. These laws change. Below is an overview of the law at the time this article was written and is included only to give context to the “Lawful Self-Defense” expungement law.
What is “lawful self-defense?” Florida law breaks this down into three categories; defense of person, defense of home, and defense of property.
Common Characteristics
In each of these defenses the person acting in self-defense does not have a duty to retreat. Further, the person must:
- Not be engaged in any criminal activity, and
- Must be in a place he or she has a right to be.
Defense of Person
Section 776.012, Florida Statutes, sets out the conditions required for the legal use or threatened use of deadly or non-deadly force in the defense of oneself or another.
The use or threatened use of non-deadly force against another is legal if you “reasonably [believe] that such conduct is necessary to defend [yourself] or another against the other’s imminent use of unlawful force.”
The use or threatened use of deadly force against another is legal if you “reasonably [believe] that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to [yourself] or another or to prevent the imminent commission of a forcible felony.”
⚠ “Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. Section 776.08, Florida Statutes.
Defense of Home
Section 776.013, Florida Statutes, sets out the conditions required for the legal use or threatened use of deadly or non-deadly force in the defense of your home. A person who is in his or her dwelling or residence has the right to stand his or her ground and use or threaten to use:
(a) Non-deadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force; or
(b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
There is a legal presumption in subsection (2) in regards to the protection of the home:
(2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
and a presumption in subsection (4):
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
There are exceptions to this section which include:
(3) The presumption set forth in subsection (2) does not apply if:
(a) The person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; or
(c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or
(d) The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
Defense of Property
Defense of “property’ includes real property other than a dwelling or personal property lawfully in your possession or the possession of an immediate family or household member or property you have a legal duty to protect.
Non-deadly force can be used to the extent that you reasonably believe that such conduct is necessary to prevent or terminate the other’s trespass on or tortious or criminal interference with said property.
Deadly force can only be used in the self-defense of property if you reasonably believe that such conduct is necessary to prevent the imminent commission of a forcible felony.
⚠ Note that the use of deadly force for the defense of property can only be used to prevent the imminent commission of a forcible felony. If someone is running off with your Rolex watch you cannot use deadly force to stop him.
Criminal Charges Dropped Under Self-Defense Conditions
The Office of the State Attorney can review an arrest affidavit and refuse to file formal charges. They declare this to the court by filing a form commonly called a “no file,” “no information,” or “no bill.” Once filed, the arrestee is free.
After formal charges have been filed, the Office of the State Attorney can drop those charges by filing a document known as a “nolle prosequi.” This means the state is no longer pursuing the charges and the arrestee is free.
The Court can only dismiss the charges when legal argument is sufficiently made at hearing or trial to support such action.
If the reason for any of the above actions is based on the finding that the arrestee acted in lawful self-defense, the Office of the State Attorney or the Court must note this in their respective records. See, section 776.09, Florida Statutes.
⚠ Note: The Office of the State Attorney can issue a No Information or a Nolle Prosequi without any reason given. It has complete discretion over the filing decisions in the prosecution of criminal cases.
Prerequisite 1: The Finding of Lawful Self-Defense
A prerequisite to a Lawful Self-Defense Expungement is the requirement that the charges were not filed on, dropped, or dismissed based on a finding that the arrestee acted in Lawful Self-Defense. As noted above, section 776.09, Florida Statutes, states that if a decision to not file on or to drop criminal charges against the arrestee is based on the finding that he or she acted in lawful self-defense, the Office of the State Attorney must annotate their file indicating as much.
However, the State Attorney is not required to disclose the reason for such action and may not annotate their file at all. However, if they do annotate, it will probably be located either on the No Information notice or the Nolle Prosequi.
If neither of these notices indicates the reason for not pursuing the charges, you will need to check the court file. It may have been a court decision that prompted the dropping of charges by the prosecutor.
Finally, if nothing is found in the court file, a public records request to the Office of the State Attorney will be required. This should be specifically for information regarding the decision to not file on or to drop charges against the defendant. An explanation for the request should include that you are trying to determine if the defendant qualifies for a subsection (5) expungement.
Lack of Notation that Lawful Self Defense was Found
The lack of a notation that a No Information or Nolle Prosequi was due to finding lawful self-defense may be a bar to pursuing this form of expungement. Subsection (5) specifically indicates that:
“. . . an information, indictment, or other charging document was not filed or was dismissed by the state attorney, or dismissed by the court, because it was found that the person acted in lawful self-defense pursuant to the provisions related to justifiable use of force in chapter 776.”
There are many reasons why a State Attorney may not annotate there files to indicate lawful self-defense. The main reason today would be to avoid the deceased’s relatives outcries and the media storm that would follow under specific circumstances. The Jorge Zimmerman/Trevon Martin case is a classic example.
However, there is also a lack of case law on this matter. If the facts surrounding the arrest correspond to the requirements of lawful self-defense and a No Information or Nolle Prosequi was issued without notation or explanation, the argument could be made that it was, in fact, the reason for the lack of prosecution.
In the above situation, the defendant/petitioner had better be prepared for the legal cost of an appeal. It is probable that the Office of the State Attorney would object to a lawful self-defense expungement petition under those circumstances.
The required notation (finding) for this type of expungement gives the State Attorney an easy method of discouraging it (by not notating it). We can hope, however, that the 20 Offices do the right thing.
Does Lawful Self-Defense Expungement Count Towards the One Lifetime Expungement
The Lawful Self-Defense Expungement waives the requirements typically needed to obtain a standard expungement. Those requirements are 1) the defendant has never in the past been convicted and 2) has never secured a previous record expungement or sealing.
Unfortunately, a plain reading of the statute would suggest that the use of the Lawful Self-Defense Expungement would preclude the use of the standard expungement or sealing at a later time. Each of those require that the defendant has not secured a prior sealing or expungement (without regard to type). The only exception to that is the Diversion Expungement for juveniles found in section 943.0582, Florida Statutes, where it explicitly states that an:
“[e]xpunction or sealing granted under this section does not prevent the minor who receives such relief from petitioning for the expunction or sealing of a later criminal history record as provided for in ss. 943.0583, 943.0585, and 943.059[.]”
The lack of any similar language within subsection (5) would indicate that the use of the Lawful Self-Defense Expungement would be treated as a previously secured record expungement or sealing within the requirements of the standard expungement.
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