ERIC J DIRGA, PA

“Relates To” – The Latest Expungement Objection

relates to

The latest expungement objection (more specifically toward the sealing of records) has to do with the statutory language (that can be found in both ss. 943.0585 and 943.059, Fla. Stats.); “A criminal history record that relates to a violation of…[.]” Prosecutors (and judges) are now arguing that even if they drop, orally amend, or otherwise modify the original charges, if a person was originally charged with a prohibited offense then they are prohibited from sealing their arrest.

This was first raised not by the prosecution but by the Florida Department of Law Enforcement [FDLE]. FDLE refused to issue a Certificate of Eligibility because, in their minds, the offense the defendant admitted to was “related to” (but was not) the initial charge which were prohibited by statute.

Lazard v. Florida, 229 So.3d 439 (Fla. 5th DCA 2017)

In Lazard v. State, 229 So.3d 439 (Fla. 5th DCA 2017), the appellant was denied a Certificate of Eligibility to have his record sealed. The Florida Department of Law Enforcement [FDLE] originally denied the Certificate of Eligibility because FDLE claimed the charge “related to” an offense prohibited from being sealed.

The Appellant was originally charged (by Information) with Aggravated Child Abuse, a crime specifically prohibited from being sealed. Ultimately, the State agreed that the appellant could plea to the offense of Contributing to the Dependency of a Child, a misdemeanor (not specifically prohibited by statute). The State did not file an amended Information setting forth facts about the offense of contributing to the dependency of a minor. Id., footnote 1.

Several years later the appellant applied for a Certificate of Eligibility from the FDLE. He was denied the certificate. FDLE’s explanation was that his criminal history related to a prohibited offense.

Appellant filed a motion to compel which was denied by the Circuit Court. The Circuit Court’s reasoning was that the appellant had pled to a charge that “relates to” an act of domestic violence. From this ruling the appeal was initiated.

The District Court Ruling

The District Court made a specific ruling on when FDLE must issue a Certificate of Eligibility. Citing section 943.059(2), Florida Statutes, the Court pointed out the clear language of the statute. FDLE “shall issue” a certificate of eligibility so long as the applicant follows subsections (a) thru (f). If an applicant complied with the statute, FDLE must issue the certificate.

That part of the ruling really didn’t change much, except maybe to temper FDLE’s enthusiasm to make prophylactic legal objections outside of the courtroom. However, the reason for the initial denial by FDLE of the appellant’s certificate had been raised and will lead more prosecutors to using the “relates to” objection in the future.

But there are problems with this…

“A criminal history record that ‘relates to’ a violation of…”

Both the expungement statute (s. 943.0585, Fla. Stat.) and the sealing statute (s. 943.059, Fla. Stat.) have the identical language that this new objection surrounds. Specifically:

A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, 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, 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 943.0585, Florida Statutes, dealing with the expungement of records.

A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, former s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, 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 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 943.059, Florida Statutes, dealing with the sealing of records.

The Argument and Absurd Results

The logical thought process that a lesser charge someone enters a plea to “relates to” the original charge he was arrested for makes sense – in one respect. The defendant would not have been found guilty of the lesser charge had he or she not first been arrested or charged for the higher charge.

Anyone who has practice criminal law knows that a police report is often embellished and incomplete and overcharged. Prior to a trial, the relationship between the police report (or the charging document based on the police report) and what the defendant ultimately takes responsibility for is, most often, speculative after the fact.

One of the best and most common examples of this is the often mistakenly charged “Burglary of a Dwelling” offense (prohibited from being sealed) that turns into a simple trespass. Does the trespass “relate to” the burglary of a dwelling? Should a person seeking to seal his arrest record where he was ultimately found guilty of trespass be denied because he was arrested for burglary?

The other problem is over-charging. It is law enforcement that decides what will show up first on a person’s arrest record. An arrest record begins with the arrest. A person arrested for “Burglary of a Dwelling” will have an arrest record starting with a date of arrest for a burglary, not a trespass. It is not modified to show the outcome of the criminal case. Whether it was reduced, dropped, or never filed on will only appear at the bottom, in some acronym language, if at all.

The Point is for a Second Chance

The original point of sections 943.0585 (expungement) and 943.059 (sealing) were to give people a second chance. Today, the purpose is two-fold. In the past the protection, which allowed for denial of the arrest, would have been enough. Today, with the advent of the Information Age, the protection is to also remove the blemish from the internet record.

It helps no one to have people pay for an over-charged offense, that potentially enforces a barrier to employment, promotion, or any type of financial advancement, for a lifetime. We all do better when we collectively all do better. By allowing a legal method for removing an arrest record after the person has paid their “debt to society” not only makes sense, it is just.

What You Must Do to Protect Your Client

After the Lazard case, it would seem that a defendant should use all methods to protect him or herself when coming to a resolution. Amending a prohibited offense to a lesser crime that can be sealed has been the first step. Now, an oral amendment by the Office of the State Attorney may not be enough.

Physically amending the information, spelling out only the elements of the lesser offense may be required (and is the best option for serious offenses). Unfortunately, we all know that would mean extra work for the prosecution and they are already swamped. Asking for this “effort” is necessary for serious crimes but may be impractical for “common” crimes (I’ll leave that to your imaginations).

Having the prosecutor, at the time of the oral amendment, state on-the-record that his or her office will not object to a subsequent request to seal the record (provided the defendant otherwise qualifies) may be the best option. I would also ask that it be annotated on the defendant’s disposition.


Contact Eric J Dirga PA


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.

What Remains After An Expungement

what remains after expungement

Most of my clients are concerned about what remains after an expungement (this includes sealing in Florida) has been granted. In order to answer this we have to know what a Florida expungement does.

What Information Remains Available After a Florida Expungement (Sealing)

In Florida, anytime a person is arrested, receives a notice-to-appear, or otherwise has a case number generated by the Clerk of Court regarding criminal charges – that person has an arrest record. This does not depend on the Florida Department of Law Enforcement having a record of the arrest.

Under Florida law, records of an arrest or criminal activity are public records. The Clerk of Courts of this state are responsible for making sure the courts work smoothly. This includes creating records and case numbers of all criminal cases. This also means that these records are easily accessible through the Clerk of Court’s website. See, Public Records Law.

What is an Arrest Record

For purposes of this writing, an arrest record is a record of an arrest or of a criminal incident, regardless of the ultimate outcome of the case, that is discoverable either on a public website or through a private service.

Before the internet, a criminal record was the record maintained by the Florida Department of Law Enforcement [FDLE] (which forwarded that information to the FBI’s national database). Obtaining a criminal background check meant going to local law enforcement and paying a small fee. The local agency would simply check FDLE’s statewide records.

If you wanted a criminal history that included the entire country, you had to obtain the records from the FBI. Obtaining those records could take weeks or require a very expensive service.

Today, private companies buy public records from FDLE and the Clerk’s office. Those companies catalog the data and then provide the same service over the internet. It is very easy to get a background check on anyone by purchasing this information from one of these companies.

Not only do these companies provide information about criminal histories, they also provide information on family members, where you have lived, vehicles registered in your name, and more. All of this information comes from public records that anyone has access to.

What is a Public Record

A public record is a record maintained by the government that, by law, the public has a right to view. Florida has an extensive public records law. (See Wikipedia Definition for more information)

What Does an Expungement (Sealing) Do

Under Florida law, a record expungement or sealing will make the record of your arrest a non-public record. This means it can no longer be viewed or distributed to the public via online access or the sale of data.

Additionally, an expunged record requires that the arresting agency, sheriff’s office, the state attorney’s office, and any government agency that was informed of the arrest, destroy their records of the arrest. A sealed case requires that those agencies keep those records confidential.

FDLE and the Clerk of Courts must remove access of those records from the public. Neither entity can sell those records once the record has been expunged or sealed. What remains after an expungement or sealing with government agencies is nothing (as far as public access). See, Benefits of an Expungement.

What Remains After an Expungement

An order to expunge or seal a criminal arrest record is directed at government agencies that maintain those records. Since an order to seal or expunge a record is distributed only to government agencies, those private entities that have bought or otherwise collected your information still have those records. They will continue to sell your data until they are informed that your record is no longer a public record.

Since the record is no longer a public record, the selling of the data can make these companies liable for damages caused by the release of the information. The business model and defense of the selling of personal information on the web by these companies is the fact that the information sold is all “public record.”

Once these companies are informed, the more legitimate companies will remove the information from their database. There are bulk sellers of public records out there that are less scrupulous. The major ones, used by businesses, tend to abide by an order to expunge or seal a record once informed.

What You Can Do If You Have Expunged Your Record

Under Florida law, once your record is expunged or sealed you have the legal ability to deny the arrest occurred (there are a few exceptions to this that you should know). You must utilize this to maximize your benefits.

Under the Fair Credit Reporting Act, you have the right to know “who” is reporting “what” about you. If the arrest pops up you need to find out who reported it, and find out what was reported.

When you have an arrest record sealed or expunged you should receive a certified copy of the order (from the Clerk or your attorney). You should notify any entity still reporting your information by sending them a copy of the order.

Companies That Claim To Notify Private Companies

There are companies out there that claim they will notify and have your arrest data removed from private companies that sell public records. The claim is that it will be done faster than if you just allow them to figure it out themselves. Most of these companies require you to pay a fee for this service.

The idea of having all the private companies selling public records notified at once makes sense. That would be the last step in clearing your arrest. Unfortunately, you will have to investigate the claims of these services yourself before you pay them.

There is a non-profit (Foundation for Continuing Justice) that claims to provide the same service without a fee (they may ask for a donation). There is also a trend in the many states to expand the benefits of expunging (sealing) criminal records. Unfortunately, those wheels are slow in turning but turn they will. If new laws benefit your situation, you will be able to take advantage of the new laws.

Additional Information

Helpful Expungement Links

Misconceptions About Expungements

Florida Expungement Benefits

Expunge Your Domestic Violence Arrest


Contact Eric J Dirga PA


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.

So You Want to Expunge Your Florida Arrest Record

expunge your florida arrest record

If you have ever been arrested or received a “Notice to Appear” to court for a criminal offense, you have an arrest record. This is also called a “criminal record.” Florida law allows you to expunge your Florida arrest record.

This record begins with the arrest and it does not go away because the case was dropped. It originates from two sources; the Clerk of Court and the Florida Department of Law Enforcement. Both of these agencies sell these records to private entities. The Clerks of Court also have these records listed for free on their websites.

These records are public records. The expungement process set forth under Florida statutes s. 943.0585 and s. 943.059, can remove these records from the public domain.


Expunge Your Florida Arrest Record As Soon As Possible

If you have an arrest record, it is a good idea to consider expunging your record as soon as possible. The sooner the record is expunged the sooner the government stops selling it. Additionally, if you are eligible to expunge your record today and you wait, the law may change and prohibit you from expunging it in the future.


Do You Qualify for the Expungement Process

“Do you qualify” is the first question you should ask yourself. Knowing if you qualify will save you a lot of time and effort if you start this process and find out later that you do not qualify.

What Do You Qualify For

Under Florida law, there are two types of expungements.

Expungements

The first is called an “Expungement” and it applies only to charges that were eventually dropped. Any reason for the case being dropped is okay, so long as it was dropped. This applies to when the State Attorney does not file formal charges, drops the case after filing formal charges, court dismissals, and pretrial diversion drops.

Sealings

The second type is called a “Sealing.” A sealing applies to charges that were not dropped. These are charges you either admitted to or were found guilty after a trial. In order to qualify for a sealing the court must “withhold the adjudication of guilt.” Additionally, the offense cannot be prohibited by statute.

See Qualifying For A Florida Expungement for more information.

See Prohibited Offenses for more information.

Additional Requirements

In either case, you cannot have ever been convicted of a criminal offense. This means “ever.” Nor can you have ever been adjudicated delinquent as a juvenile. If you’ve ever been adjudicated guilty or adjudicated delinquent – you do not qualify to have any arrest record sealed or expunged.

See What is a Florida Conviction for more information.

See, No Prior Adjudication Exception for Juvenile Cases for an exception to this rule.

Additionally, only one arrest can be sealed or expunged. Multiple arrests for the same bad conduct may be expungeable and you should consult with a lawyer if this is your situation.


What Is The Cost

The cost can vary depending on if you hire a lawyer or you do this yourself. You can save money by doing this yourself, however you should consider a lawyer if you need to get this done as soon as possible (without mistakes and backtracking).

See, How Much A Free Expungement Costs for more information on doing this yourself.

See, My Legal Fees to Expunge or Seal Your Arrest Record for more information on my fees.


How Long Will It Take

Currently, the process to expunge your Florida arrest record takes approximately 8 to 12 months. A sealing may take a month less to complete. The biggest delay right now is it takes FDLE 6 months to process the application.


Should You Do This Yourself (Without A Lawyer)

Despite what other lawyers may say, this is not rocket science nor is it brain surgery. The process to expunge your Florida arrest record is relatively straight forward. The one thing that you may run into and not know what to do is if the court requires a hearing. If you get to that point and the court does not grant your request but instead sets your petition to seal or expunge for a hearing, you may want to consult with a lawyer.

There are plenty of helpful websites to assist you with the expungement process and even a “How-To” Expungement Book. If you have the time and you are not concerned about getting it done as fast as possible then give it a try.

If you need to expunge your Florida arrest record as soon as possible, you may want to consider hiring a lawyer. If you are trying to expunge a felony or you have multiple arrests, you may want to consider hiring a lawyer.

See, Do You Need An Expungement Lawyer for more information.

See, Do-It-Yourself Expungement for more information.

See, Erase Your Record for more information on the do-it-yourself without a lawyer book.

Helpful Florida Expungement Links


Contact Eric J Dirga PA


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.

Expunging a Sealed Record

Expunging the Sealed Record: Florida Expungements

Expunging Sealed Record in Florida: Under Florida law, a criminal arrest record that has been sealed for 10-years can be expunged so long as the petitioner still qualifies. This is something to think about when you qualify and have your arrest record sealed today.

Expunging the Sealed Record

Florida law specifically states that an arrest record that has been sealed for 10-years can be expunged provided the petitioner (you) qualifies:

943.0585(1)(b)3. – Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.059, former s. 893.14, former s. 901.33, or former s. 943.058, unless expunction is sought of a criminal history record previously sealed for 10 years pursuant to paragraph (2)(h) and the record is otherwise eligible for expunction.

This may be something you want to do in the future and should be analyzed or discussed with your attorney that is petitioning the court to seal your arrest record.

Qualifying to Expunge Your Sealed Record

In order to qualify to have your sealed record expunged, ten years must have passed from the date of the order to seal and you must never have been convicted of a criminal offense. New offenses that have happened since your record was sealed do not automatically disqualify you unless they resulted in a conviction. However, they will be considered by the Court when it considers whether or not to grant your request.

Additionally, the offense that was sealed must have remained eligible for this relief. As time goes on, the laws may change. If the offense you had sealed 10-years ago is now prohibited by law from being expunged then it cannot be expunged. This is rare but can happen. (See, Mary Kirby Quandary)

Problems To Avoid

The biggest hurdle to overcome when trying to expunge your arrest record that has already been sealed for 10-years or more is gathering information. When you’re expunging sealed record, you will need to know the case number, arresting agency, date of arrest, etc. This information is typically no longer available from the Clerk of Court.

Lawyers are require to maintain records for 6-years, unless you are informed otherwise. Today, many attorneys keep records indefinitely because they scan their cases into a convenient format that is easy to maintain. You should contact the attorney that sealed your case today to see if they still have copies of these records if you are considering expunging sealed record.

Keep The Records of Your Sealed Case

If you have had your arrest record sealed, keep all the documented copies you have. You should have received a certified copy of the order. Some attorneys (me in particular) will also try to obtain certified copies of the charging document, arrest affidavit (police report), and disposition to provide to you once the sealing has been ordered. Copies of these records will have the information necessary to expunge your record in 10-years.

If you are currently in the process of having your record sealed, obtain certified copies of 1) the charging document, 2) the police report, and 3) the disposition of your case. There may be other documents you should have such as all violations of probation dispositions, but at a minimum have the above-noted three.

Expunging Sealed Record Checklist

If you are having your arrest record sealed and you think you may want to have it expunged in 10-years, keep this checklist in mind:

  • Keep all your case documents-
    • If your record is not yet sealed, get these records (certified) now from the Clerk of Court.
    • If your record is already sealed, track down your records – contact your attorney.
  • Do not get arrested in the future-
    • Avoid criminal behavior and those who behave that way.
    • If arrested, avoid conviction if possible.
  • Hope that the charges you had sealed are not prohibited by the legislature between the time they are sealed and the time you try to have them expunged.

Contact Eric J Dirga PA


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.