Attorney Eric J Dirga, PA

This will be the first in a series of blogs to address the key player’s roles in the Florida expungement process. This post will address the role of the reviewing prosecutor when he/she receives a Florida Department of Law Enforcement [FDLE] application to expunge (the application is to seal or expunge but is not required to be signed by a reviewing prosecutor if the applicant is only seeking to seal their record). In order to obtain a Certificate of Eligibility to expunge a record, the State Attorney or Statewide Prosecutor must sign off on the application.

Application to Expunge Florida Record

In order for an applicant (a defendant seeking to have his or her record expunged) to obtain a Certificate of Eligibility to Expunge from FDLE the application must be signed by the State Attorney’s Office. The signature is not required if the applicant is seeking to seal his or her record.

Florida Administrative Code 11C-7.006

Florida Administrative Code 11C-7.006 simply indicates that “[t]he appropriate state attorney or statewide prosecutor should complete section B of the Application for Certification of Eligibility and have it certified.” This is typically delegated to a reviewing prosecutor within the office.

The Application to Seal or Expunge a Record

The application instructs the reviewing prosecutor to sign indicating that the applicant is eligible to have his record expunged under the following circumstances:

1. An indictment, information, or other charging document was not filed or issued in the case; OR
2. An indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi by the state attorney or statewide prosecutor, or was dismissed by a court of competent jurisdiction; OR
3. (a) None of the charges (acts) related to the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains resulted in an adjudication of guilt or of delinquency; AND
   (b) The record of the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains has been sealed for at least 10 years; AND
   (c) None of the charges (if any) for which adjudication of guilt or of delinquency was withheld relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 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.

Signing Does Not Indicate the Position of the State Attorney

By indicating with signature that the applicant is eligible based on the above criteria, the application specifically states that the prosecutor’s signature “does not imply that the applicant has satisfied all other statutory eligibility criteria, or that this Office would not oppose a petition to expunge the above-referenced case.” In other words, the processing of the application is strictly administrative and does not reflect the position of the State Attorney’s Office.

Indicating Ineligibility Based on Statutory Requirements

The reviewing prosecutor can also sign the application indicating that the applicant is not eligible to have his or her record expunged due to the following criteria:

• One or more of the charges (acts) related to the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains resulted in an adjudication of guilt or of delinquency;
• OR, BECAUSE OF ONE OR MORE OF THE FOLLOWING REASONS:
  • The record of the arrest or alleged criminal activity to which the application for certificate of eligibility to expunge pertains has not been sealed for at least 10 years;
  • One or more of the charges for which an adjudication of guilt or of delinquency was withheld relate to a to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, 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;
  • Records available to this Office disclose some other ground of statutory ineligibility (e.g., adjudication of guilt in a different case; previous expunction or sealing).

Signing the application indicating that the applicant is not eligible to expunge is based on statutory requirements. Regardless of how the prosecutor signs off, FDLE will again review the eligibility of the applicant when it receives the application.

Role of Reviewing Prosecutor

The role of the reviewing prosecutor is simple. Either sign the application indicating that the applicant is eligible or that the applicant is ineligible based on statutory criteria. It cannot be based on arbitrary reasons. The reviewing prosecutor should return the application to the applicant in a reasonable amount of time (applicant is responsible for providing a self-addressed stamped envelope).

Application for Certificate of Eligibility is Not Void if Ineligible to Expunge

If the reviewing prosecutor indicates that the applicant is not eligible to have his or her record expunged and the applicant is otherwise qualified to have the record sealed – the application itself is still good. The applicant can send it along with the supporting documentation to FDLE in order to obtain a Certificate of Eligibility to Seal the record.

For More Information Emailed to You

Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

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

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

You have a record for an arrest from a few years back. It keeps popping up on your background checks and it is preventing you from getting the job you want or the apartment you like. You want it expunged.

You have heard of expunging the record but everywhere you check the attorney fees are too high. You want to resolve this yourself for free if possible?

Unfortunately, even if you do this yourself, there are some costs that, if everything goes smoothly, will run you upwards of $250.

Not So Free Record Expungement

If you qualify to have your record expunged there are several things you have to pay for, even if you do this yourself. These are:

• $?? to get your fingerprints taken from a law enforcement agency.
• $10 each for two notary stamps on the application and the affidavit.
• $?? to get certified copies of the disposition from the Clerk of Court.
• $75 FDLE fee when you submit the application.

Once you receive your Certificate of Eligibility you then have to petition the court. This is where it may get complicated. You need a step-by-step guide for this because you won’t get your questions answered for free by a lawyer or correctly by anyone else.

No worries. I wrote a book that will take you step by step through the process of expunging or sealing your record in Florida. For the $24, it is worth the price if you are seriously considering doing this yourself.

Step-by-Step Guide to Expunging Your Florida Record

The Mandatory Court Fees

All courts will require either a filing fee (paid when the petition is filed) or court costs (after the petition has been granted). There is at least one county that has a filing fee and court costs.

Filing fees vary from county to county and usually are around $70. Court costs also vary and are also around $70. Even if you get your petition granted, nothing will happen until these fees are paid.

Other Required Expenses

There are also undefined expenses. This is not to discourage you from doing this on your own but you will need access to a computer, printer, scanner, copier, and a word processor.

On top of those items, you will need to take the time to:

• write your petition, affidavits, etc.
• learn how to eFile your petition and supporting documents to the court.

Along with the other costs (noted above) you may also have to prepare for a hearing. There is stress involved with appearing before the court and, if your petition is denied, an appeal can cost thousands of dollars.

Grand Total

If you have all the necessary equipment and you are a quick learner on eFiling, then your grand total (excluding your time) for your free Florida record expungement can be as low as $200 (+/-$50).

The problem most people run into when trying to do this on their own is when they have a question. The Clerk of Court isn’t suppose to give you legal advice (but they do, often with disastrous results). The State Attorney won’t – they are the party you are going against. FDLE can’t either. Only an attorney can give you legal advice and they won’t advise you without getting paid because it subjects them to liability – and liability costs money.

For More Information Emailed to You

Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

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

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

It is accepted that the Florida Law of sealing or expunging a criminal record requires that the person seeking such relief has never been convicted of committing a crime. In legal terms this means you can never have been adjudicated guilty or adjudicated delinquent of a criminal act. This can be confusing because in Florida you can be “found” guilty but not convicted (see, what does convicted mean in Florida). Here we are only addressing “convictions” (adjudicated guilty as an adult or adjudicated delinquent as a child) and the adjudication exception to this blanket rule of no prior convictions. The rule is consistent regarding convictions as an adult. However, there are some adjudication exceptions for some “convictions” (adjudications of delinquency) as a juvenile.

When Being Adjudicated (Delinquent) is Not a Bar

The terminology for a conviction as a juvenile is “adjudicated delinquent” or “adjudication of delinquency.” In sections 943.0585(2)(d) (pertaining to expungements) and 943.059(2)(c) (pertaining to sealings), Florida Statutes, there is an exception for juvenile convictions being a bar to qualifying for a record expungement or sealing. Specifically, each section states that the person seeking such relief has “never been adjudicated guilty (as an adult) or been adjudicated delinquent (as a juvenile) for committing any felony or a misdemeanor specified in s. 943.051(3)(b).”

A Misdemeanor Specified in Section 943.051(3)(b)

As written, sections 943.0585(2)(d) and 943.059(2)(c), Florida Statutes, would allow a person with an adjudication of delinquency for a misdemeanor, not found in s. 943.051(3)(b), Fla. Stat., to still qualify to have a criminal arrest record sealed or expunged. The list of misdemeanor offenses found in this section are:

1. Assault, as defined in s. 784.011.
2. Battery, as defined in s. 784.03.
3. Carrying a concealed weapon, as defined in s. 790.01(1).
4. Unlawful use of destructive devices or bombs, as defined in s. 790.1615(1).
5. Neglect of a child, as defined in s. 827.03(1)(e).
6. Assault or battery on a law enforcement officer, a firefighter, or other specified officers, as defined in s. 784.07(2)(a) and (b).
7. Open carrying of a weapon, as defined in s. 790.053.
8. Exposure of sexual organs, as defined in s. 800.03.
9. Unlawful possession of a firearm, as defined in s. 790.22(5).
10. Petit theft, as defined in s. 812.014(3).
11. Cruelty to animals, as defined in s. 828.12(1).
12. Arson, as defined in s. 806.031(1).
13. Unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property, as provided in s. 790.115.

Any other misdemeanor offense would fall under the adjudication exception.

Non-Specified Misdemeanors Adjudication Exception

Offenses often charged against juveniles, that are not on this list, include criminal mischief, graffiti, and trespass, just to name a few. Typically, the Juvenile Justice System does not adjudicate children for these offenses to begin with, so applying this section would be rare. However, for the practitioner and the person seeking relief, this adjudication exception exists.

Although the adjudication of delinquency may not be a bar to qualifying, the person seeking relief still cannot seal or expunge any arrest that resulted in the adjudication of delinquency. It is simply not a bar for qualifying to seal or expunge a different arrest.

Sealing Record With Adjudication of Delinquency: Possible Scenario

A possible scenario could be as follows:

An adult wants to seal a petit theft charge he received at age 23. He had the adjudication withheld. His prior history includes an adjudication of delinquency for criminal mischief (misdemeanor) when he was 13 years of age. He could apply to FDLE and should obtain a Certificate of Eligibility to seal the petit theft arrest.

This would be rare, as mentioned above, since most juvenile courts would not have adjudicated a 13 year old of misdemeanor criminal mischief without a prolonged history. However, the possibility of this adjudication exception should be investigated in order to assist a person who wants to seal or expunge a criminal arrest record.

Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

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

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

Many people who contact me about an expungement are concerned about their ability to be a teacher in the public school system of Florida. In this post I try to explain what the Florida law states regarding the employment of teachers as it relates to past criminal records. You may also want to read my post on obtaining public employment with a criminal record.

Can You Teach With A Criminal Record

Florida has strict guidelines for those who want to teach. Part of being a teacher in Florida will require you to have periodic background checks. Whether a past or future arrest will affect your career depends on the nature of the charge and the outcome of your case.

Prerequisites to Teach

The State Board of Education requires that, to be eligible for employment, the following positions hold a Certificate:

• School Supervisor
• School Principal
• Teacher
• Library Media Specialist
• School Counselor
• Athletic Coach
• Other position in which the employee serves in an instructional capacity.

There may be differences in the educational background needed for each of those positions (see, section 1012.55, Florida Statutes) and no one seeking a certificate can have a conviction for certain specified crimes. See, section 1012.315, Florida Statutes.

Once You Have a Teaching Certificate

Even if you have a teaching certificate, there are qualifications that are required to be employed. These can be found under section 1012.32, Florida Statutes (Qualifications of personnel). These include:

• Be of good moral character
• Be 18 years of age
• Cannot be ineligible under s. 1012.315, Fla. Stat.
• Hold a Certificate
• Pass a Level 2 background screening (repeated every 5-years)
• Cannot have been convicted of a crime of “moral turpitude”

Note that some of these requirements can be interpreted broadly.

What Convictions Can Prohibit a Certificate

The list of crimes that can prohibit a person from receiving any teaching certification is listed in section 1012.315, Florida Statutes.

Good Moral Character; Moral Turpitude

As noted above, some qualifications can be broadly interpreted. What is considered “good moral character” may be subject to local rules and appellate decisions. Moral turpitude typically includes a finding that actions taken by a person involved baseness, vileness, or depravity. An example of a crime of moral turpitude is prostitution. Note that the crimes listed in section 1012.315 are mostly serious offenses. However, violating “good moral character” or being involved in acts of “moral turpitude” need not be as serious an offense.

Can an Expungement or Sealing of a Criminal Record Help

The disqualifying criteria regarding crimes listed above all require that the person have been “convicted” of the offense. It is not clear whether convicted includes offenses where a person was found guilty but had the adjudication of guilt “withheld.” (See, differences between a conviction and a withhold). The qualification requiring that the person “be of good moral character” may envelope any finding of guilt.

A sealed record or an expunged record is no longer a public record. The sealing and expungement laws also allow you to deny that the arrest ever occurred (or that it was not you). There are exceptions to this “deniability” benefit. Even if a record has been sealed or expunged, the law requires that a person seeking employment as a teacher disclose the the arrest (even if dropped).

Expunging the Record

Expunging a criminal record requires that the charges have been dropped. Since a case where the charges have been dropped would not be a finding of guilt, it seems this would not affect employment or the obtaining of a certificate. However, it would seem advantageous to have the record expunged. Although disclosure to the school is required, it would stop parents and other individuals from seeing the arrest.

Sealing the Record

A person can seal a criminal record if found guilty of a criminal offense and the adjudication has been “withheld.” However, certain offenses, even if the adjudication has been withheld, are prohibited from sealing. Moreover, disclosure to the school is still required. If the offense is not one found in section 1012.315 and is eligible to be sealed it is always better to have it sealed even though it won’t prevent the school from knowing of it.

Whether you seal or expunge your record, always obtain certified copies of your court file. It is important to have these because once the record has been sealed or expunged, access to these records will end.

Should You Seek Being a Teacher With a Record

If you have been arrested, regardless of the outcome, and you are considering teaching as a career you should first talk with your school/college Guidance Counselor and check with the local School Board in your county. Contacting the licensing board is also a good idea. If you decide to seal or expunge the record, be sure to obtain certified copies of the important case documents. You may need to provide them to future potential employers.

If you are currently employed, you should know the law regarding the implications of an arrest. I cover this in An Arrest, A Background Check, Your Job.

For More Information Emailed to You

Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

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

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.