People often ask if a Record Sealing can help them get out from under the temporary restriction on purchasing firearms after they have been found guilty of certain offenses. Under certain conditions, even a withhold of adjudication can result in a firearm purchasing restriction.
A review of the pertinent statute indicates that relief from the firearm purchasing restriction may be found with the occurrence of an expunction. It is unclear if the legislature was referencing only the expungement statute or was including the sealing statute with the use of the term expunction.
A plain reading of the statute would mean that a record would have to be expunged for any benefit to apply*. However, such a reading would make that portion of the statute meaningless, leaving open the possibility of review.
*A disposition with the finding of guilt and a withhold of the adjudication is ineligible for immediate expungement. The one exception would be the Early Automatic Expungement for juveniles.
Effect of Record Sealing on Temporary Firearm Purchasing Restriction
It is important to note that a withhold of adjudication on a felony charge does not rescind any civil rights but it does act as a temporary loss of your ability to purchase a firearm. This same firearm purchasing restriction applies to misdemeanor domestic violence charges where the adjudication was withheld*. This prohibition lasts for three years after all conditions of the court have been fulfilled or an “expunction” has occurred.
*A conviction for a misdemeanor domestic violence charge is a permanent restriction.
Section 790.065, Florida Statutes
Section 790.065, Florida Statutes, deals strictly with the sale of firearms by licensed dealers to the public. It lists what a licensed dealer must do before a sale can be concluded, including a required background check. It also lists the disqualifying criteria for the sale of a firearm which includes the temporary firearm purchasing restriction.
The pertinent parts of the section follow:
790.065 Sale and delivery of firearms.—
(1)(a) A licensed . . . dealer may not sell or deliver from [his] inventory or [his] licensed premises any firearm to another person . . . until [he] has:
1. Obtained a completed form from the potential buyer . . . which shall include the name, date of birth, gender, race, and social security number or other [photo] identification number of such potential buyer[.]
2. Collected a fee from the potential buyer for processing the criminal history check[.] . . . [.]
3. Requested, by means of a toll-free telephone call or other electronic means, the Department of Law Enforcement to conduct a check of the information as reported and reflected in the Florida Crime Information Center and National Crime Information Center systems as of the date of the request.
4. . . .
(b) . . .
(c) . . .
(2) Upon receipt of a request for a criminal history record check, the Department of Law Enforcement shall, during the licensee’s call or by return call, forthwith:
(a) Review any records available to determine if the potential buyer or transferee:
1. Has been convicted of a felony and is prohibited from receipt or possession of a firearm pursuant to s. 790.23;
2. Has been convicted of a misdemeanor crime of domestic violence, and therefore is prohibited from purchasing a firearm;
3. Has had adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or expunction has occurred; or
4. Has been adjudicated mentally defective or has been committed to a mental institution by a court or as provided in sub-sub-subparagraph b.(II), and as a result is prohibited by state or federal law from purchasing a firearm.
. . .
(b) . . .
(c)1. Review any records available to it to determine whether the potential buyer or transferee has been indicted or has had an information filed against her or him for an offense that is a felony under either state or federal law, or, as mandated by federal law, has had an injunction for protection against domestic violence entered against the potential buyer or transferee under s. 741.30, has had an injunction for protection against repeat violence entered against the potential buyer or transferee under s. 784.046, or has been arrested for a dangerous crime as specified in s. 907.041(4)(a) or for any of the following enumerated offenses:
a. Criminal anarchy under ss. 876.01 and 876.02.
b. Extortion under s. 836.05.
c. Explosives violations under s. 552.22(1) and (2).
d. Controlled substances violations under chapter 893.
e. Resisting an officer with violence under s. 843.01.
f. Weapons and firearms violations under this chapter.
g. Treason under s. 876.32.
h. Assisting self-murder under s. 782.08.
i. Sabotage under s. 876.38.
j. Stalking or aggravated stalking under s. 784.048.
If the review indicates any such indictment, information, or arrest, the department shall provide to the licensee a conditional nonapproval number.
. . .
Subsection (2)(a)3. seems to suggest that the 3-year firearm purchasing restriction period, after all the conditions of the court have been met, could be shortened if an intervening expunction has occurred.
The Merriam-Webster dictionary defines Expunction as “the act of expunging, the state of being expunged, erasure.” The wording or expunction has occurred, by a plain reading of the statute, seems to suggest that the authors did not include the act of Sealing the record, which is the only relief a person would qualify for under these conditions and the only relief that could be done within the 3-year period.
Current Florida Law
Under current Florida law a person who has had a withhold of adjudication on a felony is not immediately eligible to Expunge (§ 943.0585, Fla. Stat.) his or her record. They may qualify to Seal (§ 943.059, Fla. Stat.) their record. In order to immediately Expunge a record, all of the charges must have been dropped, dismissed, or acquitted by a jury (in which case the firearm purchasing restriction would not exist).
Expunging a Withhold of Adjudication
A person may Expunge a criminal record where the adjudication of guilt has been withheld only after it has been Sealed for 10-years (see, Expunging a Sealed Record). In order to qualify to seal a record, all the conditions of the court have to be completed. For example:
John is arrested for grand theft, a felony. The day the State Attorney’s Office files an Information charging him with the offense he is conditionally restricted from purchasing a firearm. On “day 1” he enters a plea and the court withholds the adjudication on the condition that he successfully complete 2-years of probation and pay restitution. On day 1 the firearm purchase restriction is in full effect. At “day 1 plus 2-years” he has finished his obligation to the court. He must now wait the additional 3-years to be able to legally purchase a firearm. He immediately precedes to start the Sealing process (he is not eligible to expunge his record at this point). His record is sealed on “day 1 plus 2-years plus 10 months.” Is the firearm purchasing restriction now removed before the expiration of the 3-years or does he now have to wait 10-years and then expunge his record?
If the language or expunction has occurred excludes Sealing the record, then that language is superfluous. It would take almost 12-years (to seal the record, wait 10-years, then expunge the record) for a record Expungement to occur – well outside of the 3-year restriction.
Statutory construction goes beyond just a plain reading of the statute. There is a presumption that the legislature meant to write the laws as they did and that the wording of the law should have meaning. It must also make sense. The Florida Supreme Court, in Metropolitan Casualty Insurance v. Tepper, 2 So.3d 209 (Fla. 2009), explains how courts are to interpret the statutory laws.
We have recognized that “the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” State v. Goode, 830 So.2d 817, 824 (Fla.2002); see also Martinez v. State, 981 So.2d 449, 452 (Fla.2008)(repeating this quote). “[W]ords in a statute are not to be construed as superfluous if a reasonable construction exists that gives effect to all words.” State v. Bodden, 877 So.2d 680, 686 (Fla.2004).
A reasonable construction of or expunction has occurred must be read to encompass the Sealing of the record for it to have any meaning with regard to the 3-year firearm purchasing restriction. Sections 943.0585 (expungement) and 943.059 (sealing) are almost identical statutes. At one point in time they we both encompassed in section 943.058, Florida Statutes (since replaced).
The expungement statute and the sealing statute provide the same benefits. The main difference between the sections are the restrictions on what charges can be Sealed where a person was actually found guilty. The expungement statute does not have that restriction because all charges must have been dropped, dismissed, or acquitted by a jury.
Since section 790.065(2)(a)3. deals directly with a finding of guilt and a 3-year time frame, it only makes sense that the term “expunction” that the legislature uses is referencing section 943.059 – the Sealing statute.
Therefore, in order for the phrase or expunction has occurred to have meaning and not be superfluous it must include the term Sealing. This would mean that sealing a record immediately upon the completion of the court’s conditions can reduce the 3-year firearm purchasing restriction.
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.
Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located in Orlando, FL. He provides legal representation for expungement and sealing of records throughout the state of Florida.