Expunging or Sealing Multiple Arrests

Many people who seek to have their criminal history expunged or sealed have multiple arrests. Most want to expunge or seal all of their arrests. In this post I will review the case law that relates to the subsection (4)(c) of both the Expungement and Sealing statutes:

(4)… (c) The court may order [expunction/sealing] of a criminal history record pertaining to one arrest or one incident of alleged criminal activity only, except that the court may order the expunction of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.

Note: The October 1, 2019, amendments to both the expungement and sealing statute made substantive changes. The case law discussed below were prior to this change.

Because for many people it is an all or nothing proposition, whether to expunge or seal a criminal arrest history, it is necessary to understand when multiple arrests can be expunged or sealed pursuant to statute and rule.

Canter v. State, 448 So.2d 64 (Fla. 3d DCA 1984)

Canter was charged with passing three bad checks. Each bad check offense was a separate incident and charged separately and never formally consolidated, however all three were handled together in the Trial Court and subsequently dropped by the state upon completion of a pretrial diversion program. This case falls under former sextion 943.058, Florida Statutes (1983).

Cantor moved to expunge all three cases. The Trial Court denied the petition in one of the cases based on the fact that similar motions were made in the other two. No action was taken on the other two cases. Only the one case where the Trial Court denied the petition was appealed.

The Appellate Court, addressing the single case, pointed out that Canter complied with the statutory criteria and the Florida Rules of Criminal Procedure 3.692, and without objection from the state, it was an abuse of discretion to deny the request.

Although the Canter case seems to avoid the multiple arrest/case question, it does set a foundation for the review of these cases. This standard evolves over time and its root is firmly and firstly compliance with the statute and rules of criminal procedure.

State v. A.B.M., 742 So.2d 818 (Fla. 2d DCA 1999)

A.B.M. [ABM] had two cases. One originating in 1994 and one from 1995. ABM resolved both cases together. The Trial Court withheld adjudication and sentenced ABM to four years probation on each case to run concurrently. This case falls under section 943.059, Florida Statutes (1997).

ABM moved the Trial Court to seal the 1994 case, with which she complied with both the statute and the rules of criminal procedure. During the hearing she asked the Trial Court to also seal the 1995 case, despite not having a certificate of eligibility for that arrest. The Trial Court, over state objection, granted the request. The State appealed.

The state argued that the lack of a certificate of eligibility for the 1995 case prevented the Trial Court from sealing the nonjudicial records of that arrest. The Appellate court agreed citing State v. D.H.W., 686 So.2d 1331 (Fla. 1996)(the Florida Supreme Court acknowledged that . . . obtaining a certificate of eligibility . . . for sealing nonjudicial criminal history records . . . is a valid condition precedent to obtaining an order to seal such records.)

ABM argued that the language,

The court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.

gives the Trial Court the discretion, pursuant to statute, to order the sealing of nonjudicial records. The Appellate Court disagreed, construing that sentence to apply to

additional arrests or charges that stem from one criminal activity or episode where the additional offenses are temporally related or there is some nexus between the offenses.

ABM contended that she committed the offenses because of the same underlying problem – her drug dependency. The offenses were otherwise unrelated. Even considering that fact, the offenses were committed several months apart and there was no evidence that the offenses committed in 1995 were connected to her 1994 conduct which led to her arrest in the prior case.

The A.B.M. case tries to interpret the part of the statute that refers to the “more than one arrest” language. It seems to have been the first to do this.

Dinkins, Jr. v. State, 764 So.2d 693 (Fla. 1st DCA 2000)

Dinkins was arrested twice in 1993 and charged with a total of 23 different offenses that occurred over a 21 day period. Dinkins record is otherwise clean. This case reviewed section 943.059 (sealing), Florida Statutes (1997).

Dinkins obtained a certificate of eligibility from the Florida Department of Law Enforcement [FDLE] to expunge his record* and petition the Trial Court for relief. The Trial Court noted the multiple incidents over multiple days and concluded that it lacked jurisdiction to consider the petition.

*Note, there is no explanation why Dinkins received a certificate of eligibility to expunge and pursued a record sealing (943.059).

The statutory language the Appellate Court focused on was

The court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.

The Appellate Court found that

the statute does not contain a blanket prohibition against record expungement where the defendant has committed multiple criminal acts.

The Appellate Court suggested that the phrase

any of the acts stemming from the arrest or alleged criminal activity

contemplated multiple criminal acts. The statute also says

additional arrests directly relate[d] to the original arrest

and therefore, multiple arrests do not foreclose the possibility of a record expungement. As guidance (on remand) the Appellate Court, referencing A.B.M., stated the Trial Court should determine whether the additional arrests and charges meet or fail to meet the standard adopted in the A.B.M. case.

The Dinkins Court made it clear that the possibility of expunging/sealing multiple arrests and charges was contemplated by the legislature. It also strengthens the Second District Court’s standard that was articulated in the A.B.M. case.

Oymayan v. State, 765 So.2d 812 (Fla. 1st DCA 2000)

Oymayan was arrested on December 27, 1995, and charged with several offenses that occurred on different days between November 29 and December 27, 1995. He successfully completed a pretrial diversion program and the state dropped all charges. This case deals with section 943.0585, Florida Statutes (Supp. 1998).

NOTE: Although a single arrest occurred, it is unclear whether Oymayan was charged in a single information or separate informations for each incident.

Oymayan petitioned the Trial Court to expunge all charges from his arrest on December 27, 1995. The Trial Court denied his petition to expunge because he had committed three unrelated drug offenses on three different dates and, therefore, was only eligible to expunge one case. In this regard, the Trial Court made two successive rulings, one regarding nonjudicial records and one regarding judicial records.

Nonjudicial Records

The Trial Court refused to expunge the additional charges because they were

separate from and unrelated to

the November 29 charges and did not involve

a single arrest or incident of alleged criminal activity

as required by statute. The Appellate Court found this conclusion erroneous as a matter of law. Oymayan was arrested only once, which the plain reading of the statute contemplates. The Appellate Court stated

…section 943.0585 expressly authorizes a trial court to expunge records relating to “one arrest or one incident.” (Emphasis added.) The statute does not provide that a court may expunge records related to one arrest so long as the arrest involved but one incident.

Referencing the Dinkins case, the Appellate Court noted that the statute

does not contain a blanket prohibition against record expungement where a defendant has committed multiple criminal acts.

The statute requires that the petitioner allege, within the petition, that he or she was not convicted of “any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains.” (Emphasis original.) The use of the plural concludes that the plain meaning of the statute contemplates multiple criminal acts.

Judicial Records

The Trial Court also found “under its inherent authority concerning expungement” that Oymayan had engaged in

a series of criminal acts rather than an isolated single incident

and therefore complete expungement was inappropriate. This was an abuse of discretion. Referencing Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997), the Third District concluded that

a petitioner who satisfies the requirements of [Florida] Rule [of Criminal Procedure] 3.692 is presumptively entitled to an order to expunge or seal

and the Trial Court has the discretion to deny the petition

if there is a good reason for denial based on the facts and circumstances of the individual case.

The Trial Court agreed with the state’s assertion that expungement was only intended to help first offenders. Since Oymayan had committed three offenses, the Trial Court concluded denial was appropriate. However, “[t]here is nothing in the rule or case law . . . which supports such interpretation.”

A Trial Court must consider all the facts and circumstances of a petitioner’s case. In Oymayan, the offenses occurred within a one-month period (temporal factor) and after the arrest he successfully completed his post-arrest obligations and committed no further offenses (facts and circumstances factor). These factors are what the Trial Court should consider. The fact that he was charged with offenses that occurred on three different days rather than one “isolated, single incident” does not by itself warrant denial of the petition to expunge the judicial records.

Cline v. State, 37 So.3d 327 (Fla. 5th DCA 2010)

Cline was arrested for possession of cocaine in June 2005. He resolved the arrest with a plea that resulted in a withhold of adjudication. A year earlier, in June 2004, Cline had been arrested for possession of methamphetamine. That charge was dropped by the state when he pled to the 2005 cocaine charge. Although resolved at the same time, the charges were unrelated (involving separate and distinct criminal activity, arrest dates, informations, and court files). This case deals with section 943.059, Florida Statutes (2007).

In 2008, Cline obtained a certificate of eligibility for the possession of cocaine arrest and it was subsequently sealed. Afterwards, he petitioned the Trial Court to seal the court record in the methamphetamine case. He did not qualify to obtain another certificate of eligibility for the meth arrest and did not request nonjudicial records to be sealed.

The Appellate Court distinguished (again) the differences between judicial and nonjudicial records. In order to seal court records (judicial) in a criminal case a petitioner must comply with Florida Rules of Criminal Procedure 3.692 and 3.989. State v. D.H.W., 686 So.2d 1331, 1336 (Fla. 1996); see also, Johnson v. State, 336 So.2d 93 (Fla. 1976). These rules require that the grounds upon which the request is made also be supported by an affidavit. The forms of the petition, affidavit, and the order are provided in R. 3.989. Each of these forms contains language setting forth that

the petitioner must not have previously secured an order sealing records.

Cline argued that Rules 3.692 and 3.989 do not place limits on a court’s authority and the Appellate Court framed Cline’s argument as “there are no rules restricting the trial court’s authority to seal a judicial record.” However, Cline’s argument would require the Trial Court to hold an evidentiary hearing for every petition to seal criminal records regardless of

  • the nature and severity of the underlying charged offense,
  • the number of prior arrests and/or offenses,
  • the number of prior adjudications, and
  • the number of prior sealings.

Note: The nature of the offense, prior adjudications, and prior sealings are all legislative restrictions placed within the expungement and sealing statutes.

The Appellate Court rejected this argument and found that the intent of the Supreme Court’s adoption of Rules 3.692 and 3.989 limits the circumstances in which a party can request the sealing of a criminal* record.

*Note: For sealing non-criminal court records, see Florida Rule of Judicial Procedure 2.420.

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