Where to File the Petition
Typically, there are no issues with where to file a petition to seal or expunge. An arrest was made in the same county where the charges were brought. The charges listed for the arrest were the same that were filed with the court. Pretty straight forward.
However, there are several instances where jurisdiction can be less straight forward, and sometimes downright convoluted. This post is meant to address those issues with the premise that neither the law nor the rules suggest that multiple petitions must be filed to accomplish this task (despite what clerks may suggest).
For purposes of this article, the terms “expungement” and “expunge” are meant to include the term “sealing” and “seal” unless specifically noted.
Issues with Expungement Jurisdiction
There are several ways in which “jurisdiction” can be an issue when filing a petition to expunge. Below are listed the ones that will be addressed in this post:
- When the State Attorney’s Office [SAO] files different offenses than what the defendant was arrested for.
- When an arrest is made outside the jurisdiction that has brought charges.
- When the original SAO “transfers” the case to a different County.
The SAO Files Different Offenses
Let’s first give an example of what is meant by the SAO filing different offenses.
The typical situation where this expungement jurisdiction issue arises is when law enforcement arrests a defendant for a felony offense, the Clerk issues a felony case number, and the SAO files charges for a misdemeanor offense. When this happens, the Clerk of Court will then issue a misdemeanor case number and transfer the case from the felony case number. Where do you file the Petition to Expunge?
This is really not a jurisdictional issue, however it does confuse attorneys and judges alike. The confusion comes from assigning “jurisdiction” to the Clerk of Court’s “ministerial” function. The assigning of a case number does not, by itself, create jurisdiction. The jurisdictional act is when the SAO files formal charges. Therefore, the Petition to Expunge should be filed in the court with jurisdiction, typically, in these instances, the County Court.
Fuller v. Truncale, 50 So.3d 25, 28 (Fla 1st DCA 2010) “Ministerial acts ‘involve obedience to instructions or laws instead of discretion, judgment, or skill.'”
Ferlita v. State, 380 So.2d 1118 (Fla 2d DCA 1980) “A clerk acts in a purely ministerial capacity, and has no discretion to pass upon the sufficiency of documents presented for filing.” (citation omitted)
Exceptions to this Scenario, kinda…
Understand, jurisdiction can be assigned to the Circuit Court, in these instances, if the defendant enters a plea based on the arrest affidavit, before the SAO has a chance to file a formal charging document, e.g., entering a plea at the first appearance. This usually does not pose a problem for expunging the case (seal in this instance) because only one case number has been assigned by the time the case is closed. Normally, this would never happen because the Court usually enters a “not guilty” plea for the unrepresented defendant arrested for a felony offense.
Additionally, when the SAO files felony charges and then, through negotiations or otherwise, files a new information charging only misdemeanor offenses. Typically, this is done as part of a plea deal in circuit court and, again, you are dealing with only one case number. This would only occur if the misdemeanor offenses being pled to did not fall under any lesser included offenses charged in the original information.
However, if the case is reassigned to County Court and is disposed of there, the expungement jurisdiction for filing the petition will be with the Court that disposed of the case, in this case the County Court. This is a good rule to follow: Jurisdiction flows from the court that disposes of the case.
QUESTION: How can a County Court order the expungement of a Circuit Court case? Here we have to do some logical thinking. If a new information is filed in Circuit Court charging only misdemeanors and the Circuit Court reassigns the case to County Court, it seems conclusive that the original information was nolle prosequi’d (i.e., dropped). Now jurisdiction is with the County Court. When the County Court orders the record to be expunged, Fla. R. Crim. Proc. 3.692(d)(2)(A-B) requires that the Clerk “remove . . . all entries and records subject to that order . . . [and] seal the entries and records together with the court file.” Would that not include the records that were reassigned? What if the original information was not dropped and two cases were running at the same time? Here I would suggest filing in the court with jurisdictional power over both cases.
In all of these cases, the expungement filings should indicate both cases numbers to ensure that the Court and the Clerk address all the information involved with the arrest. The fact that there is a Circuit Court number along with the County Court number on a County Court filing should not confuse the Court (but it does).
TIP: For years I used the format “[disposition case number] (transferred from [case number originally created by the Clerk]). However, because language is important, I have changed that to “originally assigned as.” This seems to draw on the ministerial function aspect of the initial case number.
When the Arrest is made Outside the Jurisdiction where the Charges were Filed
This typically happens when an arrest is made based on a warrant.
This sometimes confuses lawyers. An expungement is the process of removing the arrest and everything that follows from the public record. If the arrest occurs in County X, should that not be where the expungement is filed?
Short answer is “no.” Remember, the court with jurisdiction is the one that ultimately disposes of the case.
How will Out-of-County arrest be Expunged?
So you file in the County where the case originated but how will the out-of-county arrest be expunged? Remember not to forget the statutory and administrative rules that govern expungements. Once a court orders a case to be expunged, the Clerk has a duty to inform specific agencies. Those agencies, in turn, must inform other agencies. All of these agencies must abide by the law and rules regarding an expunged case.
Additionally, the practitioner should include this information in the petition and the proposed order submitted to the court. The documents (petition, order, affidavits) for expungements are specifically described in the Florida Rules of Criminal Procedure (3.989). They should be followed exactly as they are written, however, under situations that involve factors that fall outside of the normal arrest, you need to describe this clearly in the petition and in the proposed order.
TIP: List the Clerk of Court where the arrest occurred as one of the agencies to be informed of the order.
The State Attorney Transfers case to Another County
Certain offenses have complicated jurisdictional issues. “Harassing telephone calls,” for example, can be charged in either the originating County or the recipients County. Then there could be an appellate opinion that clarifies which county has actual jurisdiction.
By the time one State Attorney figures this out, they may have already filed charges. Then they have to drop those charges and transfer the information to the “correct” County and that State Attorney (if different) must decide whether to file charges or not.
If they do, you have a situation where two different County Clerks have case numbers floating out in the public for one offense. Where do you file your petition to expunge?
Remember, Jurisdiction Exists Only in One Place
You may start thinking that jurisdiction floats around from place to place. Nailing it down is the confusing part of this way of thinking. You have to end that thought process by understanding that jurisdiction is static. When a crime occurs, jurisdiction attaches.
That does not mean all crimes committed by a traveling criminal can only be tried in a single county. It means that once a crime, by legislative definition, is committed, jurisdiction for where the crime occurred has attached and it does not wander. This does not change because one State Attorney mistakenly charges a defendant in the wrong county.
But what if a State Attorney does and the defendant enters a plea at first appearance?
The solution to this scenario is again, using the maxim, that jurisdiction is in the court that disposed of the case. Even if the court that disposed of the case did not, in theory, actually have jurisdiction, you would still file the petition with that court. Or you could move to withdraw the defendants plea because of the lack of jurisdiction which is another topic all together. Until that is done, nothing changes.
How do both Clerks get Notified of the Expungement?
In the above scenario you may be wondering how the first County is notified of the expungement? Some attorney’s think you have to file petitions in both Counties. This is wrong and wasteful. The easier solution is to specifically point out the history of the case in the petition and make sure the proposed order includes notification of the first County.
Remember, the Clerk’s (i.e., Courts) and the agencies they notify have specific notification duties delineated by statute and rule. They know their jobs – well, the Clerk’s do, and you can make it easier for them by including the additional agencies in your proposed order.
When filing a petition to expunge for a client be sure to file in the County and Court where jurisdiction has attached. And only file one petition. The law does not suggest that multiple petitions need to be filed. Also, be prepared to file a writ of mandamus when the Clerk refuses to do their job because you did not file multiple petitions that they claim was necessary.
Additional Information, Varying Views, and Better Research
I do not claim to be an expert on jurisdiction. I welcome attorneys, judges, and clerk personnel to contact me with information that may support or contradict this article. If persuasive, I will amend and correct.