ERIC J DIRGA, PA

Florida Expungements and Predicate Sexual Offenses

Effective in 2007, Florida Law 2006-176 added language to Florida’s expungement and sealing statutes that expanded the list of prohibited offenses to include all sexual offenses designated by the Florida Legislature. Unfortunately, the added language does not specify these offenses, but rather, simply refers to additional statutes. The specific language of concern is:

any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be sealed

In order to know what these offenses are requires researching the statutes referred to in the text.

Effect of Added Statutory Language

This article will answer the question on what effect the language, added in both the Florida Expungement and Florida Sealing Statute, has on a person trying to seal or expunge their criminal record.

Florida Law 2006-176, Sexual Motivated Offenses

Florida law 2006-176 addressed several related issues. This article will only address the additional language, noted above, added to both sections 943.0585 and 059 (the expungement and sealing statutes, respectively).

The first step we must undertake is to breakdown the grammar into its component parts for a better understanding. Although both the expungement and sealing statute are almost identical, the added language from Florida Law 2006-176 is identical.

or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be [expunged/sealed], without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act.

Section 775.21, Fla. Stat. [Sexual Predator]

So let’s break it down so that we can understand more clearly the meaning of the language. The first phrase directs us to “any violation” specified as a “predicate offense for registration” pursuant to section 775.21, Florida Statutes. It does not matter whether the disposition was a conviction or the court withheld the conviction (see Differences between Adjudication and the Withhold of Adjudication). Those violations listed in s. 775.21, Fla. Stat., are:

The Predicate Offenses

A capital, life, or first degree felony violation, or any attempt thereof, of
s. 787.01 – Kidnapping; kidnapping of child under age 13, or
s. 787.02 – False imprisonment; false imprisonment of child under age 13, where the victim is a minor, or
s. 794.011 – Sexual battery,
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, or
s. 847.0145 – Selling or buying of minors, or
a violation of a similar law of another jurisdiction; or
Any felony violation, or any attempt thereof, of
s. 393.135(2) – A covered person (Public Health) who engages in sexual misconduct with an individual with a developmental disability;
s. 394.4593(2) – An employee (Public Health) who engages in sexual misconduct with a patient;
s. 787.01 – Kidnapping; kidnapping of child under age 13,
s. 787.02 – False imprisonment; false imprisonment of child under age 13, or
s. 787.025(2)(c) – A person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar law of another jurisdiction, intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose, where the victim is a minor;
s. 787.06(3) – Any person who knowingly, or in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human trafficking, or benefits financially by receiving anything of value from participation in a venture that has subjected a person to human trafficking, (b) Using coercion for commercial sexual activity of an adult, (d) Using coercion for commercial sexual activity of an adult who is an unauthorized alien, (f) for commercial sexual activity who does so by the transfer or transport of any child under the age of 18 from outside this state to within the state, or (g) for commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective or mentally incapacitated; former s. 787.06(3)(h);
s. 794.011 – Sexual battery, excluding s. 794.011(10) – A person who falsely accuses a person;
s. 794.05 – A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age; former s. 796.03; former s. 796.035;
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
s. 810.145(8)(b) – Video Voyeurism, a person who violates this subsection and who has previously been convicted of or adjudicated delinquent for any violation of this section;
s. 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
s. 827.071 – Sexual performance by a child;
s. 847.0135, – Computer pornography; prohibited computer usage; traveling to meet minor excluding s. 847.0135(6) – owner or operator of a computer online service, Internet service, or local bulletin board service;
s. 847.0145 – Selling or buying of minors;
s. 895.03 – Racketeering, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-subparagraph or at least one offense listed in this sub-subparagraph with sexual intent or motive;
s. 916.1075(2) – An employee, volunteer, or intern [or contractor] who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility; or
s. 985.701(1) – [Juvenile Justice] An employee who engages in sexual misconduct with a juvenile offender; or
a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of
s. 393.135(2) -Sexual misconduct prohibited; reporting required (Corrections);
s. 394.4593(2) – Sexual misconduct prohibited; reporting required (Juvenile Justice);
s. 787.01 – Kidnapping; kidnapping of child under age 13,
s. 787.02 – False imprisonment; false imprisonment of child under age 13, or
s. 787.025(2)(c) – Luring or enticing a child, a person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), where the victim is a minor;
s. 787.06(3) – Any person who knowingly, or in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human trafficking, or benefits financially by receiving anything of value from participation in a venture that has subjected a person to human trafficking, (b) Using coercion for commercial sexual activity of an adult, (d) Using coercion for commercial sexual activity of an adult who is an unauthorized alien, (f) for commercial sexual activity who does so by the transfer or transport of any child under the age of 18 from outside this state to within the state, or (g) for commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective or mentally incapacitated; former s. 787.06(3)(h);
s. 794.011 – Sexual battery, excluding s. 794.011(10) – A person who falsely accuses a person;
s. 794.05 – A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age; former s. 796.03; former s. 796.035;
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
s. 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
s. 827.071 – Sexual performance by a child;
s. 847.0133 – Protection of minors; prohibition of certain acts in connection with obscenity;
s. 847.0135, – Computer pornography; prohibited computer usage; traveling to meet minor excluding s. 847.0135(6) – owner or operator of a computer online service, Internet service, or local bulletin board service;
s. 847.0145 – Selling or buying of minors;
s. 895.03 – Racketeering, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-subparagraph or at least one offense listed in this sub-subparagraph with sexual intent or motive;
s. 916.1075(2) – An employee, volunteer, or intern [or contractor] who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility; or
s. 985.701(1) – [Juvenile Justice] An employee who engages in sexual misconduct with a juvenile offender; or
a violation of a similar law of another jurisdiction;

The next line is “without regard to whether that offense alone is sufficient to require such registration[.]” This phrase removes the requirements, found within the above-noted statute, that are necessary for a person to have to register as a sexual predator. In short, if a person has been found guilty of any of the above offenses, they cannot seal or expunge that record.

Section 943.0435, Fla. Stat. [Sexual Offender]

The next line states “or for registration as a sexual offender pursuant to s. 943.0435[, Fla. Stat.]” Here, the statute requires that an offense (listed below) that requires the person to register as a sexual offender is ineligible to be sealed or expunged under Florida law. This statute contains the following offenses:

Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction:
s. 393.135(2) – [Public Health] A covered person (employee, paid staff member, volunteer, or intern of the agency; any person under contract with the agency; and any person providing care or support to a client on behalf of the agency or its providers) who engages in sexual misconduct with an individual with a developmental disability;
s. 394.4593(2) – [Mental Health] An employee (includes any paid staff member, volunteer, or intern of the department; any person under contract with the department; and any person providing care or support to a client on behalf of the department or its providers) who engages in sexual misconduct with a patient;
s. 787.01 – Kidnapping; kidnapping of child under age 13,
s. 787.02 – False imprisonment; false imprisonment of child under age 13, or
s. 787.025(2)(c) – A person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar law of another jurisdiction, intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose, where the victim is a minor;
s. 787.06 Human Trafficking (b) – Using coercion for commercial sexual activity of an adult, (d) – Using coercion for commercial sexual activity of an adult who is an unauthorized alien, (f) – commercial sexual activity who does so by the transfer or transport of any child under the age of 18 from outside this state to within the state, or (g) – commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective or mentally incapacitated as those terms are defined in s. 794.011(1); former s. 787.06(3)(h);
s. 794.011 – Sexual Battery, excluding s. 794.011(10);
s. 794.05 – Unlawful sexual activity with certain minors; former s. 796.03; former s. 796.035;
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
s. 810.145(8) – Video Voyeurism; A person who is eighteen years of age or older who is responsible for the welfare of a child younger than 16 years of age, regardless of whether the person knows or has reason to know the age of the child;
s. 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
s. 827.071 – Sexual performance by a child;
s. 847.0133 – Protection of minors; prohibition of certain acts in connection with obscenity;
s. 847.0135 – Computer pornography; prohibited computer usage; traveling to meet minor, excluding s. 847.0135(6);
s. 847.0137 – Transmission of pornography by electronic device or equipment prohibited;
s. 847.0138 – Transmission of material harmful to minors to a minor by electronic device or equipment prohibited;
s. 847.0145 – Selling or buying of minors;
s. 895.03 – Racketeering, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-sub-subparagraph or at least one offense listed in this sub-sub-subparagraph with sexual intent or motive;
s. 916.1075(2) – Sexual misconduct prohibited; A covered person (an employee, volunteer, or intern of the department or agency; any person under contract with the department or agency; and any person providing care or support to a forensic client on behalf of the department, the agency, or their providers) who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility; or
s. 985.701(1) – Sexual misconduct prohibited; Juvenile Justice Employee (paid staff members, volunteers, and interns who work in a department program or a program operated by a provider under a contract) with juvenile offender; or
any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-sub-subparagraph; and
Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense [listed above].

Although most of these offenses are similar to the offenses listed in section 775.21, Florida Statutes, there are slight nuances that, if argued before a court, would require more research.

Shall Not Be Sealed or Expunged if…

The last part of the wording is not new. It states that these sexual offenses may not be expunged/sealed even if adjudication of guilt was withheld, “if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act.”

This language specifically prohibits the sealing of any sexually motivated offense listed regardless of if the disposition was a withhold of adjudication (rather than a conviction – see the differences between a conviction and a withhold of adjudication). It also prohibits an expungement if the disposition was withheld. This requires explanation:

Expungements and Adjudication Withheld

Any sexual offense that results is the dismissal, dropping, or acquittal of all charges can be immediately expunged. This includes all of the offenses listed above. The language excluding expungements would affect only above-listed offenses if the disposition was a withhold of adjudication and the petitioner had previously sealed the record and was now attempting to expunge the record after waiting the required 10-years.

Effect of Statutory Language

The additional language added through Florida Law 2006-176 expanded the range of prohibited offenses to include all sexually motivated crimes. It specifically refers to statutes that list offenses, with specificity, that will now be prohibited from being sealed or, if previously sealed, from being expunged. It also makes any additional offenses that the legislature adds to these statutes automatically prohibited from sealing or, if previously sealed, from being expunged, without requiring any amendment to the expungement (s.943.0585, Fla. Stat.) or sealing (s.943.059, Fla. Stat.) statutes. Prior to this, the only other section that did this was the reference to section 907.041, Florida Statutes (Dangerous Crimes).

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.

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.

Record Expungement and Firearm Purchasing Restriction

firearm purchasing restriction

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.
. . .

-Emphasis added

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.

Definition

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

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.


Conclusion

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

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


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.

Florida’s Lawful Self-Defense Expungement

In 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.

For more information on self-defense in Florida, see:Katz, Phillips. Florida Gun Law, Armed and Educated, 2019-2019 Ed. U. S. Law Shield, LLP, 2018.
Gutmacher. Florida Firearms:Law, Use & Ownership, 9th Ed. Warlord Publishing, 2018.

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.


For More Information Emailed to You

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

 

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


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.

If any corrections or errors are found please notify me as soon as possible.

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.

Criminal Records Do Not Go Away On Their Own

criminal records do not go away on their own

There is a misconception that Florida criminal records go away after a specific time. This is incorrect. This belief is based, not on the fact that the record has disappeared – which it hasn’t, but that certain employment background checks only search back a specific number of years. However, the record remains a public record and is accessible forever unless the record has been sealed or expunged under Florida Law.

How Long Does A Misdemeanor or Felony Remain On My Record?

A common question concerns how long an arrest stays on a person’s record. People are confused by this because:

  1. They do not realize that a “criminal” record is actually an “arrest” record.
  2. They believe that dropped criminal cases are not on their record.
  3. They believe that the record mysteriously goes away after a number of years.

These are misconceptions that are based on misunderstanding the terminology and/or the common beliefs that exist. Public records are public forever unless you have your arrest record expunged or sealed.

Technology Makes It Easy

Not only are arrest records public records, technology today allows anyone with a computer or smartphone to look these up over the internet. Now you can not only find the case, you can search the actual documents and download them. Want to read your police report? It’s all there, online.

Orange County, Florida, Clerk of Court Record Search

A “Criminal Record” is Actually an “Arrest Record”

One of the biggest misconceptions about a criminal record is when it actually starts. A criminal record is the record people want removed so it does not affect them in the future. Most people believe that if their criminal case gets dropped, dismissed, or they are found Not Guilty after a trial, the “record” goes away or never exists.

Records Do Not Go Away Because Charges Were Dropped

It is an incorrect belief that a record goes away because the charges were dropped. A criminal record is the recording of events that happen once a person is arrested. It begins from the moment of arrest (the term “arrest” includes a “Notice to Appear”). From that point, everything that happens to the person in relation to that arrest is recorded and made a public record.

BackgroundChecks.com (a private company that sells arrest records).

A Criminal Record is Not Affected by the Outcome of the Court Case

The public recording of everything from the moment of arrest is a protection for the people. It is suppose to prevent the government from making arrests and “disappearing” people, and it works. The one bad side-effect is that the record can haunt a person long after the case has been concluded. This includes cases that result in the dismissal of the charges.

A common example today is the overbroad crime of domestic violence. Easily 75% of all domestic violence arrests are never even charged by the prosecuting authority. However, the person arrested will have a criminal record indicating an arrest for domestic violence, and with it will be all the stigmas associated with it.

A Criminal Record Does Not Disappear Automatically After a Specific Time

Public records laws are used to make government more transparent. They are a protection for the people. We want to be able to scrutinize the activities of government. Therefore, public records remain public. This includes criminal records.

Chapter 119, Florida Statutes: Public Records

Some people believe that criminal records disappear after a specific period of time. This is also incorrect. The cause for this misconception is probably due to the method by which records are made available or the policy of the employer.

Government Records (Distribution)

Government will sometimes provide public records in various formats in order to better serve the people. An example of this are records held by the Department of Highway Safety and Motor Vehicles [DMV]. Driver’s records are made available in three formats; 3-year, 7-year, and lifetime.

➠ Example: When a person with an arrest that occurred 8-years ago reviews his or her criminal history, that only shows the public records for the past 7-years, they may believe that their record is no longer available (that it no longer exists).

Employer Standard Practices

Employers may decide that they will check the criminal background of a potential employee but only consider arrests that happened within a specified time frame. Everything before that time frame will be ignored.

➠ Example: An employer asks a potential employee if they have been arrested within the last 7-years. If the arrest occurred 8-years ago, the potential employee answers no. The record is still there but it may leave the impression on the applicant that the record “disappears” after 7-years.

These arbitrary time frames created by either government of employer policy has lead many people to believe that the record is gone when it has not.

A Public Record Is Forever, unless…

A public record is forever. In the history of all great societies, the bureaucracies that arose kept detailed records of government. The bureaucracies here in the United States are massive, and today we have huge amounts of electronic storage to manage it all. And most of this is accessible on the internet.

For all those things we can search for on the internet, the last thing we want public is our criminal history. This is especially true if we have a single arrest back when we were young. Unfortunately, that is exactly what is happening.

Today, courts and Clerk’s convert every document into a PDF and post it online. There are some restrictions but for criminal cases – those deal with the victims, not the defendant.

You have to make your arrest record a non-public document. In Florida, if the record is not a public record – you will not find it on any government website. The only way to do this with a criminal record is by expunging or sealing the record.

A Florida Expungement or Sealing Turns a Public Record into a Confidential Record

Both the Florida expungement and sealing statutes specifically make expunged and sealed records non-public. This is the only way to make these records “disappear” from your criminal history (arrest record). If you have been arrested, your case is now closed, and you qualify to have this done, it should be the first thing you do.

Start Your Expungement

Expunging your record actually makes certain government agencies destroy those records. Sealing your record makes all agencies treat your record as confidential – not a public record.

You have to qualify to have your record either expunged or sealed. Once you know which one you qualify for, you should get it done immediately.


For More Information Emailed to You

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


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.

If any corrections or errors are found please notify me as soon as possible.

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.