ERIC J DIRGA, PA

First DCA addresses prior felony impeachment.

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Stallworth v. State, 36 Fla. L. Weekly D278 (Fla. 1st DCA, Feb 7, 2011): Defense appeal of state questioning of witness regarding prior convictions, conviction reversed – State asked defense witness if he had ever been convicted of felony/crime of dishonesty and how many times.  Witness answered “Numerous times” and when asked if eight times sounded right, witness answered “it could be right.”  The court explains the error to allow the state to “question” witness on all convictions and that proper procedure would be to introduce the certified dispositions.

FLA Expungements: A Brief History, Part 1.

history of expungements part 1

Birth is a struggle.  It is the painful point that let’s us all know “life ain’t going to be easy.”  Like so much in life, analogies can be found everywhere.  With the Florida expungement law, this is true.  It all starts with a bill becoming law.  Good intentions within the legislators’ efforts become twisted through the process.  Like so many court “issues” the statute allowing a person to expunge his arrest record did not come to us in perfect condition – a healthy baby.

COURT RECORDS ARE ALWAYS ONLY SEALED

The immediate confusion centered on the new statute’s authorization of the destruction of judicial records.  There was a lot of concern that the law was allowing the legislature to unconstitutionally encroached upon the Judicial branch’s powers.

Johnson v. State

The Florida Supreme Court addressed this issue early on in Johnson v. State, 336 So.2d 93 (Fla. 1976).  Poor Mr. Johnson was arrested for heinous act of possessing cannabis.  Apparently, law enforcement improperly discovered their probable cause and the evidence was suppressed by the trial court.  Later the state filed a nolle prosequi and Mr. Johnson went free.  Not long afterward (about 5 years later) Mr. Johnson decided to remove this scar from his arrest record and he moved to expunge it. The trial court granted the motion and, never to be one-upped, the state appealed.  The trial court indicated that the statute did not include the destruction of records of judicial acts.

The Florida Supreme Court hit head-on to the issue of the legislature’s authority to require the court to destroy its own records.  The Johnson Court recognized “the value of the expungement statute” but found that the law unconstitutionally encroached upon the procedural responsibilities of the Court.  Id. at 95.  The Court’s ruling found unconstitutional the part of the law that required the destruction of judicial acts, ordered the lower court to “seal” those records and concluded that the Court would come up with rules of procedure to carry out the legislative intent of the statute.  Id.

This was not the end of the Johnson decision.  Justice Adkins dissented with an opinion and touched on issues that would eventually help carve out the present statutes we have today.  Id. at 95-96.

ANY SINGLE CONVICTION BARS THE PETITIONER FROM RELIEF

State v. Sobie

The Third District Court of Appeal addressed poor Mr. Sobie’s case who was arrested for public drunkenness, possession of cannabis, and possession of barbiturates to which he entered a plea of no contest.  State v. Sobie, 343 So.2d 73 (Fla. 3d DCA 1977).  The case arose after the lower court granted Mr. Sobie’s petition to expunge.  The State tried to stop the court because Mr. Sobie had previously fought alcohol in public and lost, and that time the lower court had adjudged him guilty of the municipal ordinance violation.  The Sobie Court pointed out that, even in the earliest form of the expungement statute, the wording clearing required that the petitioner “has never been convicted of a criminal offense or municipal ordinance.”  Id. at 74.  This barrier to relief continues to exist today.

THE LAW IN EFFECT AT TIME OF PETITION IS THE LAW THAT APPLIES

Capuano v. State

The same year as the Sobie court handed down their decision another court in Capuano v. State, 347 So.2d 629 (Fla. 4th DCA 1977) came down with its own decision.  The Capuano court set forth the retroactive effect of the sealing and expungement statutes and has been cited for this position as recently as 1990 in State v. Greenberg, 564 So.2d 1176 (Fla 3rd DCA 1990) and by the Attorney General in AGO 94-70 (1994).


Read more about the history of Florida Expungements in Part 2.


Can a Pardon Make you Eligible to Seal or Expunge Your Record?

can a pardon make you eligible to expunge your record

In order to seal or expunge a criminal record in Florida the law requires that the Petitioner obtain a certificate of eligibility from the Florida Department of Law Enforcement. To qualify for a Certificate of Eligibility the applicant cannot have been convicted of any prior offense. Under Florida law a conviction, for purposes of sealing or expunging a criminal record, means that the petitioner was either adjudicated guilty as an adult or adjudicated delinquent as a juvenile for a criminal offense. Can a Pardon overcome this barrier?

Will a Pardon Change Your Conviction

The question that often comes up is whether a pardon will alleviate the conviction impediment. The quick answer is “no.”

Doe v. State of Florida

The first instance I have found where the pardon powers of the executive collided with the legislative powers to write laws is in the case of Doe v. State, 595 So.2d 212 (Fla. 5th DCA 1992).

Mr. Doe had asked and received a record sealing/expungement (at the time both sealing and expunging criminal records fell under a single statute s. 943.058, Fla. Stat.) after having been convicted of accessory to robbery in 1976. He completed a term of 10 years probation and in 1986 Mr. Doe was given a full and unconditional pardon.

Denial of Expungement

Thereafter, in 1990, he sought and received the granting of a sealing/expungement petition.  Soon afterwards the state asked the court to reconsider the granting of the relief and the court reversed itself stating that the petitioner, Mr. Doe, did not qualify for the relief because he had been convicted of the underlying offense, the pardon notwithstanding.

Appeal to 5th District Court of Appeal – Reversed

The Fifth District Court of Appeal reversed the lower court’s decision.  It pointed out that “[w]hen the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he never committed the offense.”  It cited several cases from the 1800s and a few from the 1950s in support of its position.

The supreme court has ruled that a pardon reaches both the punishment prescribed for the offense and the guilt of the offender. When the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he never committed the offense. Advisory Opinion to the Governor, 14 Fla. 318 (1872), citing Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866). A pardon not only blots out the crime committed, but removes all disabilities resulting from conviction and gives to an individual in whose favor it is granted a new character, and makes of him or her a new person. Singleton v. State, 38 Fla. 297, 21 So. 21 (1896). A full and unconditional pardon removes all that is left of the consequences of conviction. Fields v. State, 85 So.2d 609 (Fla. 1956). See also Marsh v. Garwood, 65 So.2d 15 (Fla. 1953).

The Court went on and found that the lower court failed to have the state meet the burden necessary to unseal the court’s file after it had been sealed.  The decision was reversed and all seemed well that a full and unconditional pardon could eliminate the conviction barrier for sealing or expunging a criminal record.

Randall v. FDLE

Then in 2001 the First District Court of Appeal decided Randall v. Florida Department of Law Enforcement, 791 So.2d 1238 (Fla. 1st DCA 2001).  Mr. Randall was convicted of fraudulently making a certificate as a notary public in 1985.  He received a full pardon from the governor in 1998.

In 1999, Mr. Randall applied for a certificate of eligibility from the Florida Department of Law Enforcement [FDLE] and was denied.  The FDLE stated that the reason for denial was because he had been adjudicated guilty of the offense he sought to expunge.  Mr. Randall filed a writ of mandamus asking the circuit court to order FDLE to issue the certificate of eligibility.

The court issued a rule to show cause order and the FDLE responded stating that because of substantive changes to the statutes it was not authorized to issue a certificate of eligibility to Mr. Randall.  Mr. Randall argued that his full pardon made him eligible and he cited the Doe case.  The FDLE pointed out that Doe was decided under the previous statute.  The current statute instituted the use of the certificate of eligibility and precluded issuance if the applicant had been convicted of a criminal offense.

The Court concluded that it would have to decide the effect of a full pardon on an applicant’s ability to qualify for a certificate of eligibility under the new statute. The Court decided that Mr. Randall was not eligible for a certificate of eligibility despite having received a full pardon from the governor.  It pointed out that recent case law stood for the proposition that “while a full pardon restores one’s civil rights . . . it does not obliterate the fact of the commission of the crime and the conviction thereof[.]”  In more simple language a pardon “involves forgiveness and not forgetfulness.”

We conclude from Snyder, Page and Sandlin that our supreme court has adopted the position that, while a full pardon has the effect of removing all legal punishment for the offense and restoring one’s civil rights, it does not wipe out either guilt or the fact of conviction. The Doe court failed to consider the impact of these decisions on its analysis. As a result, we believe that the Doe court misinterpreted the state of Florida law on the issue, and arrived at an erroneous conclusion. Accordingly, we decline to follow Doe, with which we note direct conflict. Instead, because the retention of Randall’s criminal history record does not constitute punishment of any sort but, rather, merely accurately reflects the historical fact of his arrest and subsequent conviction[.]

RJL v. State of Florida

The conflict presented between the Doe case and the Randall case did not go unnoticed by the Florida Supreme Court.  Unfortunately, Mr. Randall was killed in a car accident before the conflict could be heard and his case was dismissed as moot.  Luckily, another case was stayed pending the decision in the Randall case and, when Randall was dismissed, the Court accepted jurisdiction to resolve the conflict.  The case was R.J.L. v. State, 887 So.2d 1268 (Fla. 2004).

The facts of R.J.L. are similar to the facts in Randall.  R.J.L. requested a certificate of eligibility from FDLE after having been convicted of a criminal offense for which he received a pardon.  FDLE refused and R.J.L. filed a writ of mandamus.  Finding conflict with the Doe case the Florida Supreme Court accepted jurisdiction.

Conclusion

Reviewing not only the cases cited in Doe and Randall but also looking at Federal cases and other state cases the Supreme Court agreed with the Randall court.  A pardon forgives the offense but does not create a legal fiction that the crime never occurred.  It then stressed that to be eligible for a certificate of eligibility from the FDLE one could not have been convicted for the criminal record sought to be sealed or expunged.

The First District correctly held that an individual who received a gubernatorial pardon is not entitled to a certificate of eligibility for records expunction pursuant to section 943.0585(2) of the Florida Statutes, as a pardon does not have the effect of eliminating guilt or the fact of conviction. A pardoned individual cannot satisfy the constitutional requirements of section 943.0585(2), because like other convicted individuals, a pardonee cannot maintain that he “[h]as not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains.” Therefore, we approve the decisions of the First District in both R.J.L. and Randall, and disapprove the Fifth District’s holding in Doe.

In conclusion, the bottom line is that a full pardon will not undo the conviction for purposes of obtaining a certificate of eligibility.  Since the certificate of eligibility is a condition precedent to having a petition to seal or expunge heard, a person convicted of a crime is not eligible to have his record sealed or expunged regardless of whether he was granted a pardon.

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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 online in Orlando, FL. He provides legal representation for expungement and sealing of records throughout the state of Florida.