Discretion of the Court: The Standard of Review for Expungements and Sealings

A Court’s discretion on whether to grant or deny a petition to expunge or seal a criminal arrest record has been a confusing topic and has had many appellate decisions written about it. The confusion stems from a sentence within both the expungement and sealing statutes that has persisted throughout the amendments to each:

Sections 943.0585 (expungement) and 943.059 (sealing) . . . (4)(e) This section does not confer any right to expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.

The criminal division courts have many cases before them, and the judges are constantly having to keep abreast of many issues, laws, and appellate opinions regarding things that deal with a person’s liberty. It makes complete sense that staying on top of an issue dealing with the expungement or sealing of a criminal record is not a priority. This often becomes clear when, at a hearing, the Court will point to the statute and claim it has complete discretion to decide whether or not to grant the petition.

As a legal practitioner, with the limited amount of time courts typically give to hear an issue about expunging or sealing a record, you must be able to explain what that statutory sentence actually means according to the multiple legal opinions the appellate courts have issued. It is not often an easy task and the ability to clearly articulate this can be the difference between having the petition granted or having to appeal the denial. Additionally, if an appeal is necessary, whether the record is satisfactory.

In this post, I will try to point the reader in the correct direction for specific arguments the state and sometimes the courts bring forward as a reason to deny a petition to seal or expunge a criminal history record. Finally, I will cite to cases for further support for the paragraph they are below, however, I won’t link to them at this time. Use of Fastcase or Google Scholar should provide additional information on those cases.

Anderson v. State, 692 So.2d 250 (Fla. 3rd DCA 1997)

The main case that is most often cited is Anderson v. State, 692 So.2d 250 (Fla. 3rd DCA 1997). I will spend the most space on this case as a foundation for those that follow.

Anderson appealed an order denying his petition to seal his criminal history records. In 1993, Anderson pled no contest to two felony counts. The trial court withheld adjudication and sentenced Anderson to probation. Anderson had no prior criminal record and was employed in a responsible position. He fully complied with his probation obligations and Anderson’s probation was terminated early. Anderson moved to seal his criminal history records and was denied.

The Third District Court of Appeal found that the threshold question is whether the trial court has the discretion to deny a petition to seal criminal history records. For purposes of a petition to seal or expunge, a distinction must be drawn between:

  • nonjudicial criminal history records, and
  • court records.

Nonjudicial criminal history records are subject to legislative control, while court records are not.

See Baker v. State, 53 So. 3d 1147 (Fla. 1st DCA 2011); State v. Silva, 691 So.2d 529 (Fla. 3d DCA 1997); State v. D.H.W., 686 So.2d 1331, 1335 (Fla. 1996).

Nonjudicial Records

The sealing of nonjudicial criminal history records is controlled by section 943.059 of the Florida Statutes. The statute establishes the requirements Anderson had to satisfy in order to be eligible to have his nonjudicial criminal history records sealed. Mainly, that Anderson had to obtain a Certificate of Eligibility from the Florida Department of Law Enforcement [FDLE].

Court Records

The statute also specifies:

“This section does not confer any right to the sealing of any criminal history record, and any request for sealing a criminal history record may be denied at the sole discretion of the court.”

Although the wording of the statute is clear, a question exists about trial court discretion because of a portion of State v. D.H.W.

As explained in State v. D.H.W., the sealing of court records is within the exclusive jurisdiction of the judiciary. Section 943.059, Florida Statutes, does not govern a petition to seal court records. The applicant must instead follow Florida Rule of Criminal Procedure 3.692, and file the petition and affidavit set forth in Florida Rule of Criminal Procedure 3.989. It is the Third District Court’s view that once an applicant satisfied the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records.

See, J.A.H. v. State, 198 So.3d 884 (Fla. 4th DCA 2016); Shanks v. State, 82 So.3d 1226 (Fla. 1st DCA 2012); Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011).

Good Reason/Good Cause

However, as noted above, a petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is a good reason for denial based on the facts and circumstances of the individual case.

See Fisher v. State, 20 So.3d 1032 (Fla. 2d DCA 2009); V.F.D. v. State, 19 So.3d 1172 (Fla. 1st DCA 2009); Johnson v. State, 336 So.2d at 95 (Fla. 1976); State v. Pena, 593 So.2d 282, 284 (Fla. 4th DCA 1992) (en banc);

The question of whether the trial court has discretion in ruling on a petition to seal or expunge court records was briefly discussed in Johnson v. State, 336 So.2d 93 (Fla.1976), where the court said, “We … recognize that from time immemorial courts have exercised their discretion, on their own initiative or upon motion of the parties, to seal their records from public view wherein the ends of justice may be served.” Id. at 95; accord D.H.W., 686 So.2d at 1336.

Having concluded that a trial court has the discretion to deny a petition to expunge or seal in a proper case (see below), the next question is whether the petition to seal was properly denied in Anderson’s case.

Writing in the context of the 1988 predecessor to the present statute, this court said,

[T]he 1988 statutory amendment requires this court to employ an abuse of discretion standard in determining whether the trial judge wrongly denied expunction of the record. Obviously, the words sole discretion as used in section 943.058[, Florida Statutes (1989),] do not permit arbitrary, capricious or whimsical denial of expunction. Instead [a trial] court must decide whether the trial judge used reasonable discretion in denying expunction.

See, Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009); Smith v. State, 614 So.2d 525 (Fla. 5th DCA 1993); Gonzalez v. State, 565 So.2d at 411 (Fla. 3d DCA 1990).

Providing a Second Chance to Criminal Defendants

The Florida Supreme Court in D.H.W. the court said that “the policy of public access to old [court] records must be weighed against the long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty.”

D.H.W., 686 So.2d at 1336.

Previous Break from the Criminal Justice System

In Anderson’s case, the trial court’s stated reason for denying the petition was that the defendant had already received a break from the criminal justice system because he received a withhold of adjudication and early termination of probation. Under the circumstances of the present case, we do not think that this was a sound reason for denial of the petition to seal. This was a first offense and a nonviolent crime for which withholding adjudication would be the ordinary practice. Because of satisfactory performance of all of his obligations, defendant was switched to nonreporting probation after one and one half years. His satisfactory performance continued, and the trial court decided to terminate supervision at one year and eleven months, which was seven months early. It appears that defendant earned his early termination by performing all of his obligations as directed. Since the early termination was based on defendant’s positive performance on probation, that should be a factor operating in favor of the petition to seal, rather than a negative factor.

Seriousness/Nature of the Charge(s)

The State also argued its position that the petition to seal was correctly denied because of the seriousness of the charges, more particularly the fact that one of the charges was aggravated stalking. We agree with the State that the charges are serious, but the exercise of discretion contemplates that the court will make its decision based on consideration of all of the facts and circumstances, rather than deciding the petition solely on the nature of the charge.

See, Harman v. State, 12 So.3d 898 (Fla. 2d DCA 2009); Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009); Godoy v. State, 845 So.2d 1016 (Fla. 3d DCA 2003).

The statute has since been amended to preclude the sealing of criminal history records for the offense of stalking or aggravated stalking. See §§ 943.059, 907.041, Fla.Stat. (1995). At the time Anderson filed his petition to seal he was eligible for the requested relief.

Grey v. State, 199 So.3d 988 (Fla. 4th DCA 2016)

One of the oft cited reasons (by judge’s to consider denying petitions) and arguments put forth by prosecutors is the reliance on the charging affidavit (probable cause affidavit; police report) that can be found in the court file. The charging affidavit is the document written by the police laying out the facts on why someone was arrested. It is a sworn document, however it is not evidence. The State Attorney’s Offices around the state have differing opinions about petitions to seal or expunge a record. Some simply ensure everything is done correctly. Others take positions on when to object. Typically it is based on the nature of the charge and a reliance on the charging affidavit.

The Charging Affidavit Argument

In Grey, after initially being charged with one offense, Grey negotiated a plea with the State and pleaded no contest to a lesser offense. The court accepted Grey’s plea, withheld adjudication, and sentenced her to one year of probation. After serving her sentence, Grey properly petitioned to seal her criminal record. The court, without a hearing, entered an order denying Grey’s petition based on the conduct detailed in the Probable Cause Affidavit.

Grey filed a “Renewed Petition to Seal Case-File” in which she alleged that she was innocent of the underlying offense and submitted evidence supporting her position. A hearing was held and the State informed the court it was not objecting to Grey’s request. The court again denied her petition based on the nature of the initial charge and the corresponding probable cause affidavit. The question posed is thus:

The sealing of a criminal history is governed by section 943.059 of the Florida Statutes, and Florida Rule of Criminal Procedure 3.692(a)(1). If a petitioner satisfies the requirements of section 943.059 and Rule 3.692(a)(1), the petitioner is “presumptively entitled to an order to seal or expunge court records.” Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997). While the decision to seal a record is in the trial judge’s “sole discretion,” the exercise of discretion requires “good reason based on [the] facts and circumstances of [the petitioner’s] individual case.” Shanks v. State, 82 So.3d 1226, 1227 (Fla. 1st DCA 2012). Here, there is no dispute that Appellant met the prerequisites for obtaining an order sealing her record. Thus, the question is whether the court had “good reason based on the facts and circumstances” of Appellant’s case to deny her petition.

In Gotowala v. State, 184 So.3d 568 (Fla. 4th DCA 2016), the presiding judge denied a petitioner’s request to seal his criminal record although the petitioner satisfied the statutory requirements of section 943.059 and Rule 3.692. Id. at 569. In doing so, the trial court relied on the facts laid out in the arresting officer’s [charging] affidavit and based on those facts, ruled that sealing the petitioner’s record would “`pose[] a danger to the citizens of Broward County and the general public.'” The Gotowala court reversed, holding that:

[T]he lower court’s mere reliance on the facts as laid out in a probable cause affidavit does not show “the court ma[d]e its decision based on consideration of all the facts and circumstances” of [petitioner’s] case. Moreover, the court’s order does not indicate the specific facts that led it to conclude that sealing [petitioner’s] records would pose a danger to public safety.

Id. at 570 (citation omitted).

Gotowala establishes that a court may not deny a petition to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit. Rather, the court must consider the facts actually established in the petitioner’s case.

In Grey, the court relied solely upon the probable cause affidavit as the basis to deny Appellant’s motion. The Grey Court reversed and remanded with instructions for the trial court to conduct a proper evidentiary hearing. If, after conducting a hearing, the trial court concluded that Grey’s criminal record should not be sealed, it shall enter a sufficient order. Otherwise the petition shall be granted.

The question left open is ‘what is a sufficient order?’ By review of the case law, it is evident that for a trial court to deny a proper petition to seal or expunge it must base its decision on established facts in the specific case. It cannot simply rely on the charging affidavit. In order to do this, an evidentiary hearing must be granted. See, Wells v. State, 807 So.2d 206 (Fla. 5th DCA 2002). At the hearing, the state is required to present evidence beyond reliance on the charging affidavit. However, the trial court can rely on evidence that had been presented to the court in an earlier court proceeding. See, Simone Maxwell, a/k/a Symone Maxwell, v. State, 185 So.3d 702 (Fla. 4th DCA 2016). The facts relied upon have to establish a reason for the denial that could not be applied to every other similar case. It has to be specific to the case at hand.

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