ERIC J DIRGA, PA

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.