ERIC J DIRGA, PA

Effect of Sealed/Expunged Record and the FCIC/NCIC

expungements and sealings and the NCIC and FCIC

Question: Does my record still show up on the NCIC database after it has been expunged or sealed? This is a question many potential clients ask. This is usually when the potential client is trying to fix one of the following problems:

  • being detained when re-entering the United States.
  • they are a resident alien hoping to become a naturalized United States citizen and they are afraid a past criminal record will adversely affect their efforts.
  • when seeking employment in the federal service.
  • they live outside of the State of Florida and want to know if it will help them in their State.

What is the FCIC/NCIC?

FCIC/NCIC aren’t common knowledge to most people. Unless they have worked in law enforcement or are criminal lawyers or have come into contact with the law in the worst way, these acronyms are probably unknown. For those in the know, the FCIC stands for Florida Crime Information Center and the NCIC stands for the National Crime Information Center.

The FCIC is run by the Florida Department of Law Enforcement [FDLE]. There are corresponding agencies and CICs in each State and Territory. All arrest information in Florida is forwarded to FDLE to be entered into the FCIC database. FDLE maintains records of all arrests throughout the State of Florida. Each State does this for arrests in their State.

The NCIC does the same thing except the only new data that is entered uniquely are arrests by federal agencies. The bulk of the data in the NCIC database comes from the States and Territories. Each State and Territory forwards their arrest data to the NCIC.

FCIC Arrest Data and Case Tracking/Updates

A record contained in the FCIC database begins with the arrest event. An arrest is a physical arrest with the defendant being booked into a jail or it is contact with law enforcement that results in a Notice to Appear (or other requirement to appear before the criminal court). The FCIC database follows the arrest all the way through to the disposition. This includes arrest data, prosecutorial charge decisions, and court disposition. The Clerk of Court updates FDLE with this information.

The information collected by the FCIC is transmitted to the NCIC. It is continuously updated throughout the criminal process and afterwards, if additional data is included or redacted.

Effect of Sealed/Expunged Record on FCIC

FDLE removes (redacts) a sealed or expunged record from public access under Florida law. It is removed from the petitioner’s criminal history. The information maintained by the FCIC is correspondingly updated with the NCIC. The NCIC database, which is only information obtained from FDLE, will remove data that has been redacted by FDLE from the FCIC database.

Effect of Sealed/Expunged Record on NCIC

The NCIC is for criminal justice purposes only. As stated on the FBI’s website:

The National Crime Information Center, or NCIC, has been called the lifeline of law enforcement—an electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year. It helps criminal justice professionals apprehend fugitives, locate missing persons, recover stolen property, and identify terrorists. It also assists law enforcement officers in performing their duties more safely and provides information necessary to protect the public.

This means that law enforcement, in states outside of Florida, will not see the arrest of an expunged record in Florida. This may be true, as of October 1, 2019, even if the case was not expunged or sealed if the case resulted in a nolle prosequi or no information under specific conditions. See, section 943.0595, Florida Statutes.

NCIC and the National Name Check Program

The NCIC seems to be the concern of most potential clients, however the program that they should be more concerned about and the one that should be explained to them is the National Name Check Program [NNCP]. The NNCP is an information database between Federal agencies. Its mission:

The mission of the National Name Check Program (NNCP) is to provide useful, accurate, and comprehensive information allowing our federal customer agencies to assess risk for the purpose of protecting the American people.

Many federal agencies seek background information from FBI files before bestowing a privilege. A privilege can be government employment or an appointment, a security clearance, attendance at a White House function, immigration benefits, naturalization, or a visa to visit the United States. The data accessed is not defined but one can assume that the data obtained from various State CIC is used and maintained for this purpose. This can also be the reason that people who have had arrests expunged or sealed still run into issues when:

  • re-entering the United States.
  • attempting to obtain a visa or change in status.
  • they are trying to obtain a job with the Federal Government.

More NNCP information can be found on the NNCP website.

What this means is that an expungement or record sealing may have no effect or little effect on areas that concern National Security. What concerns National Security is defined by federal agencies and will not be effected by State statutes that grant relief by means of expunging or sealing a criminal record.

Obtaining Certified Copies of the Case File

Issues related to immigration, employment, security clearances, etc. mandate that before a client’s records are expunged or sealed certified copies of the content of the court file should be obtained. These documents include at a minimum:

  • the police affidavit/report.
  • the charging document (information, indictment, citation).
  • the disposition.

In Florida, this is especially important for immigration purposes, Florida Bar, and employment with entitled entities.

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.

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.


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.

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.


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.

Florida Expungements and Predicate Sexual Offenses

Effective October 1, 2019

Effective on October 1, 2019, this has been codified within section 943.0584, Florida Statutes.

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.

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.


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.


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

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.

Arrested When Visiting Florida

Florida had over 113 million visitors in 2016. That’s a lot (considering the state’s population is just under 21 million). Unfortunately, not everyone who visited returned home without first being arrested.

I have been a criminal defense lawyer since 1995 and I represent people who have been arrested while visiting Florida on holiday.

Getting Arrested in Florida

Traveling is fun but it can often be stressful too. Money issues are often a cause for stress and the cost of traveling can add to that. Stress can cause us to act irrationally and before we know it, we have done something we regret. Visitors to Florida need to understand the rights that apply to them when they are arrested.

  • Right to be represented by counsel (Hire an Attorney)
  • Right to a Trial (means you can enter a plea of Not Guilty)
  • Right to Confront Witnesses Against You (Hire a Lawyer)

And what I like to say, the Right to be treated equally in court when resolving your case. This means you should not receive a harsher penalty because you decided to accept responsibility immediately.

Entering a Plea of Not Guilty

You may have done something wrong and you may think the best way to deal with it is to just admit it. However, this can be a huge mistake. Entering a plea (other than Not Guilty) without advice from counsel can lead to irreparable harm that can last a lifetime.

You Just Need More Time, Say Not Guilty

Entering a plea of Not Guilty is not the same as telling the court “I didn’t do anything wrong and I am going to fight this all the way.” Neither the court, the prosecutor, or anyone else sees it that way.

A plea of Not Guilty is simply telling the court you have not yet decided what you are going to do. It is a Right, and you should use it.

What Visitors Get Arrested For

Florida visitors who get arrested typically get charged with minor offenses such as domestic arguing (violence), theft (shoplifting), or DUI/drugs (marijuana not legal in Florida). Sometimes it is for more serious offenses or the occasional criminal mischief (destruction of property) or the over charged Resisting Law Enforcement Without Violence.

Most of these type of cases (except domestic violence) will result in pretrial release. A bond (security release) or conditional release (usually prohibiting you from contacting a victim) would indicate a more serious offense.

After You Get Released, Understand What is Happening

Any arrest will be very stressful. The first thing you should do is read all the paperwork you received from the Court. Understand what just happened and what the next step is. The next step is typically a date for your arraignment set off two to four weeks away. This is a good time to contact a Criminal Attorney.

Contacting A Lawyer

After your release, you will then have the time to contact and hire a lawyer to handle your case. Representing out-of-state clients is a major part of my criminal practice. Many attorneys represent people in this situation and because Florida has so many visitors, it is accommodated by the courts.

⚖ Criminal Defense

Getting Back Home

If the arraignment is scheduled for after you were suppose to return home, an attorney will be able to waive your appearance in the most common situations. You won’t have to be there and, so long as there is no restriction on travel, you will be able to return home.

The Court Process Can Take Months

The procedure of the court can take months. An attorney can handle all of that for you and keep you updated on the progress, discovery, and all plea negotiations.

Most criminal cases can be handled while you are back home. And most cases do not require you to return in order to resolve the case unless it goes to trial.

Resolving an Arrest for Florida Visitors

The critical issue will always be how to resolve your case. I will advise you of the best courses of action. Keep in mind the following factors:

  • Will you be convicted of a crime, permanently marking your criminal history?
  • Will this affect your ability to re-enter the United States (if from another country)?
  • Will the disposition of your case affect anything in your life now? Job? Where you live? Etc.?

We Also Handle Traffic Tickets

We even handle the traffic tickets you may get while visiting Florida. This is a little off-topic but a traffic ticket received in Florida can cause problems in the state you are from if not handled properly.

⚖ Traffic Ticket Defense


Expunging or Sealing Your Criminal Record After Resolving Your Florida Arrest

One of the important considerations you must understand is whether or not the resolution of your case will allow you to seal or expunge the record. Sealing or expunging your record is the first step to keeping this out of the public’s eye. This also means keeping it from your employer, family and friends, off job applications, etc. See, What is an Expungement.

How Can You Expunge Your Florida Record (From Far Away)

Even though you may live in another State or even another country, you can still have an arrest sealed or expunged so long as you qualify. Florida visitors can take advantage of the same laws as Florida residents. Although people try to do this themselves, attempting to do this from a distance can be daunting.

I have been doing this for over 20 years. We handle everything today with email, phone, text, and skype technology. We have built our practice around the use of technology to make it as easy for our clients as possible.

Will You Have to Travel Back to Florida

People who live out-of-state rarely have to return to Florida to complete this process. In the last 20 years, we have never had to have someone travel from outside of Florida. That does not mean it will never happen. If the Court requires a hearing and your presence, then arrangements will have to be made.

Will The Distance Cause Unnecessary Delays

As noted above, the use of technology mitigates any delays due to distance. Our experience also reduces most delays.

⚖ How Long It takes To Expunge/Seal Your Record

How Much Will It Cost

The cost of sealing or expunging a criminal record for a person who lives out-of-state is exactly the same for a person who lives locally. Keeping the cost down for everyone is our goal and made much easier with today’s technology.

⚖ Expungement Cost


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 Criminal Defense in the Central Florida area and representation for expungement and sealing of records throughout the state of Florida.

How Long Does a Florida Expungement Take

how long it takes to expunge a record in florida

One of the most often asked questions regarding a Florida expungement or sealing is “how long does it take to complete?” The quick answer today is anywhere between 8-12 months or longer*, and I’ll explain why below.

*As of August 2020, FDLE has caught up and is roughly only taking 5 months to process an application. Thus, the overall time to completion is approximately 7-10 months without any delays.

COVID-19 has also slowed down this process. I will not know the effect of the delay for a few more months but there are hurdles that my clients have to overcome today due to the pandemic. Number one is obtaining fingerprints. Fingerprints have to be taken by a law enforcement agency. Many have suspended this service for the time being.

Know that any lawyer who promises a faster time than what is discussed below is lying to you. He or she is only telling you what you want to hear in order to get your business.

How Long Does a Florida Record Expungement Take?

First, I will explain all the things that can affect the time it takes to complete a Florida expungement or sealing and, then, I’ll tell you what you can do to help speed this process up. You will learn that there is no set time for this process and a general idea of what needs to occur will help you estimate how long this can take.

Time Variables That All Attorneys Have to Deal With

The first thing we have to understand is that we are dealing with several government agencies when we are sealing or expunging your record. These include:

  • The Florida Department of Law Enforcement [FDLE]
  • The State Attorney’s Office [SAO]
  • The Clerk of Court
  • The Sheriff’s Office
  • The arresting agency
  • The Court

Government agencies tend to work at their own pace. There is not a lot we can do to speed them up but we can overlap the things we need to do with each of these agencies/offices. For example, we try to request documents from the Clerk of Court at the same time we send our clients the application to fill out. We need both before we can send the application off to FDLE. By overlapping, we usually receive both back at the same time. Overlapping also works when we are in the petition phase and it always saves time.

How Long Does It Take the Clerk of Court

One of the first things we do, when we represent someone to seal or expunge a record, is obtain the required certified copies of court documents. Typically, we mail the request the same day we are hired. Most Clerk’s of Court are very responsive and we get back the documents requested within a couple weeks.

However, there have been times when the Clerk of Court simply drops the ball. Our request goes out and we do not hear back from them. For whatever reason this occurs, we then need to reach out to the Clerk’s Office and find out what has happened. Often times we will have to resend the request. This can add to the overall time to complete the process.

How Long Does It Take the State Attorney’s Office

Florida law requires that an application for a record “expungement” be signed by a representative of the SAO. Before we can send the application to the SAO we need the certified disposition from the Clerk of Court and the application back from the client.

All Expungement applications are mailed to the SAO. Their response times vary, however they generally return the application within 30 days.

Delays can occur when the SAO signs off indicating the client is not eligible to have their record expunged (when they actually are). Other delays have occurred when the SAO does not return the application timely and we are again forced to track down the assistant state attorney [ASA] assigned for this task. This can occur when ASA’s are reassigned while the application is pending.

See, Responsibilities of the SAO with Expungement Applications.

How Long Does It Take the Florida Department of Law Enforcement

Once the application is prepared with all supporting documentation, it is ready to be sent to FDLE.

FDLE processes the applications and issues a Certificate of Eligibility. The processing time with FDLE over the years has varied. Currently it is taking about 8 to 9 months.

Screenshot from FDLE's website

Screenshot of FDLE’s website taken on August 15, 2020, indicating current applications being processed.

You can check where FDLE is on the processing of applications by visiting the website expunge section.

⚖ FDLE Expunge Section

How Long Does It Take the Sheriff’s Office and the Arresting Agency

The Sheriff’s Office and the arresting agency both have to be notified that you are petitioning the court to have your record sealed or expunged. There is no timeframe for them to respond and, in fact, most do not unless they object.

Most courts, when they receive a petition to seal or expunge wait about 30-days so that any notified agencies (SAO, Sheriff, Arresting) have time to respond.

How Long Does It Take the Court

The court that receives the petition usually waits about 30-days to see if any agency is going to object.

Scheduling a hearing, if necessary, can take weeks or months depending on the court’s schedule and the SAO’s response to requested court dates.

How You Can Speed Up The Process

There are ways that you, the client, can speed up the process. Although we try and make this entire process as easy for our client’s as possible, there are still some things that the client must do.

Return All Documents You Receive From Us Promptly

Once we have been hired, we send out the Expungement or Sealing Packet, as soon as possible. Very often, we can send out the packet on the same day we are hired. However, sometimes we have to obtain the documents from the Clerk’s Office first.

You, as our client, can speed this process up by looking for the packet in your email daily. Once received, complete the packet as quickly as possible and return the documents to our office.

Make Payments of Fees and Costs As Soon As Possible When Due

We try to have the most competitive fee for expungement and sealings of criminal arrest records in Florida. We break our fee down into two payments.

The second payment is due once we are ready to petition the court. The sooner it is received the sooner the petition is filed. From the point of filing the petition we are looking at about 45 days (average) until the process is completed. Often a lot sooner.

As of now, FDLE is taking about 8-9 months to return the Certificate of Eligibility after the application is filed. This should give everyone the time necessary to save and be ready once notified.

See our fee details below.

⚖ Expungement Costs.

⚠ WARNING: Some Law Firms Will Tell You They Can Do This Faster

Some lawyers and some law firms advertise that they can complete a record expungement or sealing within 6 or 7 months. They do this because they know “time” matters to you. However, they are not telling you the truth.

Don’t Hire an Attorney Because They Say They Can Do This Faster.

As pointed out above, FDLE alone takes 5-7 months just to process the application. Be careful on who you hire. If they are not telling you the truth on how long it takes, don’t hire them.

Conclusion

Although a lot of attorney websites list how long it takes to complete a Florida record expungement or sealing, the reality is that the time will always vary. There are ways that the attorney can speed up the process (by overlapping) and there are ways that the client can help.

What you, as a person who wants a record expunged or sealed, need to take away from this is simple. Do not wait to have your record sealed or expunged. Start it before you need it. As we have shown above, the process to get this done is lengthy and there are time frames that we cannot control except by when we start.


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.

Alternative Methods of Sealing Records

Many people desperately seek any method to seal their court records once it is determined that they no longer qualify to have their arrest record sealed or expunged by the typical means (sections 943.0585 and 943.059, Florida Statutes). This naturally turns to rule 2.420 in the Florida Rules of Judicial Administration  and section 943.0581, Florida Statutes – administrative expungement. I will explore both of these options with their pluses and minuses.

The Typical Means of Expunging – Sealing Record Are Not Available

Before we can dive into the “alternative” methods of sealing or expunging criminal records, we should first briefly explain the typical means of doing this. Under Florida law, a person who has been arrested (to include receiving a Notice to Appear) may have the opportunity to have that arrest record sealed or expunged (see, What is Expungement). To qualify a person must:

  • have never been convicted of any criminal offense,
  • have never had a previous record sealed or expunged (under typical means),
  • have had the charges against him dropped, dismissed, or never filed on (expungement), or
  • have had a “withhold of adjudication” and the charge is not prohibited (sealing).

See, Qualifying for an Expungement.

A person no longer qualifies once they have successfully had an arrest record sealed or expunged or they have been convicted (adjudicated guilty) of a criminal offense. See, Difference Between “Withhold” and “Adjudicated”). This problem often raises its head when a person is found guilty of a crime that requires an adjudication of guilt by law, e.g., DUI, naively pled guilty at an arraignment to a minor offense that included an adjudication of guilt (see, Criminal Case Dispositions), or have already had an arrest sealed or expunged.

The impact of a criminal record (see, What is a Background Check) often goes unnoticed for years, long after the ability to change the situation through court proceedings in the original case. People who are affected by their past are usually trying to obtain or change their employment, including seeking promotions. Other common reasons include applying to be a resident at certain apartment complexes and trying to be a chaperone for their child at a school function.

Once they realize that their criminal history is affecting them, they seek to have this minimized. They either qualify to have it sealed or expunged and go through the 8-12+ month process or they don’t qualify and they seek alternative methods.

Alternative Methods of Sealing Judicial Records

Below are alternative methods of sealing court records.

Rule 2.420

Florida Rule of Judicial Administration 2.420 is titled “Public Access to and Protection of Judicial Branch Records.” This rule is directly governed by article I, section 24(a) of the Florida Constitution (Access to Public Records and Meetings):

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

As noted, there are “exempted” records. Pursuant to rule 2.420, “confidential” records are exempt and may be released “only to the persons or organizations designated by law, statute, or court order.”

Confidential information includes information that is confidential under this rule or under a court order entered pursuant to this rule.

It is important to note that exempt records are confidential except for those people and organizations designated by law, statute, and court order. This means that records deemed confidential are still accessible to specific organizations (for specific reasons).

In order to have the court deem a record confidential, it has to be established that the confidentiality is required to:

  • prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;
  • protect trade secrets;
  • protect a compelling governmental interest;
  • obtain evidence to determine legal issues in a case;
  • avoid substantial injury to innocent third parties;
  • avoid substantial injury to a party by disclosure of matters protected by a common law or privacy tight not generally inherent in the specific type of proceeding sought to be closed;
  • comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law;

Florida Rule of Judicial Administration 2.420(c)(9)(A).

The rule spells out specifically how the motion must be presented when requested civil records or when requesting criminal records to be sealed.

Drawbacks

If a record is deemed confidential pursuant to one of the reasons listed above, it is still accessible to specific entities for specific reasons. The Clerk of Court must allow access to confidential court records to persons “authorized by law.” Fla. R. Jud. Admin. 2.420(j)(1). This not only includes records determined to be confidential by motion but also those considered confidential by rule.

A record already deemed confidential by rule that is causing a person hardship cannot be “sealed” again to prevent this hardship. By example, Rule 2.420(d)(1)(B)(viii) specifically states that clinical records under the Baker Act are confidential. See, section 394.4615(7), Florida Statutes. However, section 394.4617(3)-(6) lists when and who may have access to it. If a person is finding a hardship because of the confidential record, then seeking to seal such record under rule 2.420 would be ineffective.

A sealed record by court order pursuant to rule 2.420 is no longer a public record and will not be posted and accessible on the Clerk of Court’s website. However, that is about all of the protections. You cannot lawfully deny that the event occurred as with the s. 943.0585-059 expungement-sealing. Moreover, the rule 2.420 sealing only applies to “court” records and extends no further. See, Rivero v. Farach, 43 F.L.W. D1091a (Fla. 3d DCA, May 16, 2018).

Possibilities

There are situations where seeking this type of relief may be positive for the person being affected by the record. First, the record sought to be sealed cannot already be deemed confidential (see above). Then the court must be convinced that the record must be sealed for one of the reasons listed in Rule 2.420(c)(9)(A).

A possible example is the case where someone (victim) seeks an injunction for protection against violence. That someone names a person as the respondent (aggressor). Once filed it becomes a public record. A name search through a Clerk of Court’s website will show that the person has been accused of a violent act.

If the alleged victim doesn’t appear at the hearing to determine its validity or is denied the relief, the “allegation” remains a public record. This can cause a hardship on the person accused in the petition. The filings in these cases are public records and it may benefit that person to try and have it sealed pursuant to rule 2.420.

The rule contemplates a variety of reasons why a record should be deemed confidential. You must follow the specific outline of how a motion presents this request.

Alternative Method of Expunging Non-Judicial Records

Section 943.0581, Florida Statutes – Administrative Expungement

This is a procedure for “expunging” an arrest record of an arrest made in error. The most obvious mistaken arrest is the mistaken identity arrest that sometimes occurs when a warrant is executed. People have been mistakenly arrested on a warrant because they have shared the same name as the person who the warrant was written for.

Many people believe that an administrative expungement applies when they have been arrested (not by mistake) when the charges have later been dropped or never even filed on. This is inaccurate even if the basis for the arrest was on a falsification. This is partly due to the remedy an administrative expungement provides (see Drawbacks, below).

There may be civil remedies that can compensate a person for false allegations that caused these damages (loss of liberty, employment, embarrassment, etc.) but that is beyond the scope of this post.

Drawbacks

The Florida administrative expungement will remove the arrest from FDLE’s criminal history. It does not remove the record from the Clerk of Court’s website (if a case was generated). To do that, you will have to follow through with a rule 2.420 sealing or use section 943.0585, Florida Statutes (expungement).

In order to have an arrest administratively expunged, the arresting agency has to agree and notify FDLE (through an application that the arresting agency submits) that the arrest was a mistake. Despite protective language within the statute, law enforcement agencies are loath to admit to any mistakes requiring additional legal steps to be taken.

Possibilities

If a mistaken arrest has occurred, you will have available the administrative expungement procedure. Typically, mistaken identities are cured once you have entered the county jail systems and fingerprints have been taken and processed. However, this process can take several days. It is imperative that you hire an attorney and file an action for the false arrest. This action will usually result in a settlement (you will not get rich) and that will provide documentation that can be used to convince the agency to apply to FDLE for the administrative expungement.

Conclusion

Neither of the above options are streamlined to be used in a casual basis. Both fall short of a complete erasure of the record. However, the administrative expungement and the judicial rule both cover a niche that can be beneficial for those people who fall within their bounds of relief.


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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.