ERIC J DIRGA, PA

Expungements: No Prior Adjudication Exception

adjudication exception

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.

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


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

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

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

Domestic Violence Arrests Need to Be Expunged

expunge domestic violence arrests

Domestic Violence arrests are up. They have been rising for about 20 years. Not because man has decided to batter his wife more – because the legal definition has been expanded. Two siblings that get in a fight (say age 8 and 10) are now committing domestic violence. What use to be Spouse Abuse is now generically called domestic violence and that can include siblings, parent and child, ex-lovers, and even roommates. But that is not the worst of it. Get arrested for misdemeanor domestic violence and you immediately lose your Second Amendment right to bear arms. Poof – like that.

Most Domestic Violence Arrests Result in Dropped Charges

There is good news. Probably over (way over) 75% of domestic violence arrests result in the State Attorney dropping the charges. Sounds great but the problem with arrests is that even if the charges are dropped they stay on your background. I call this the Domestic Violence Trap Door. This means when you apply for a job, apartment, or want to volunteer, the odds are that this arrest will show up.

Dropped Charges Remain on Your Record – The Domestic Violence Trap Door

You must remember that your record is one of arrests not convictions. This means that, even if the case is dropped or you are acquitted after a trial, you still have a record of the arrest. These records are public – anyone can looked them up on the Clerk of Court’s website.

Background Checks Show Dropped Charges

Today, just about everything we want to do requires a background check. We don’t want people to see charges that were dropped or dismissed. We shouldn’t be punished for things we have never be found guilty of – should we?

Expunge Your Domestic Violence Arrest

Florida law allows for anyone who has been arrested but had the charges dropped, dismissed, being acquitted after a trial, or not even filed on to have that arrest expunged (so long as that person has never been convicted of a criminal offense).

An expunged or sealed record removes the arrest from all government agencies including the Clerk of Court, Florida Department of Law Enforcement, State Attorneys Office, and the Sheriff and arresting agency. The Federal Bureau of Investigation also makes such information confidential from the public.

Find out more information on my website about expungement (and sealings), how to qualify, how much it costs, and other questions and answers. Don’t let a domestic violence charge punish you for life. Have it expunged today.


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 representation for sealing and expunging criminal records throughout the state of Florida.

Arrested? Adjudication Withheld

arrested? make sure you resolve your case correctly

Resolving an Arrested the Right Way

Arrests for offenses such as petit theft (shoplifting), driving while license suspended, trespassing, public urination, and many other minor offenses occur daily. They may seem innocuous and you may not take them seriously, but you should. These offenses often don’t result in a physical arrest, but are instead initiated with a Notice to Appear. Unfortunately, a notice to appear is an arrest and it starts an arrest record. Resolving these minor offenses with a withheld adjudication is paramount.

The Arrest Record

Whether you are physically arrested (handcuffed and taken to jail) or you receive a notice to appear, both are arrests. An arrest record begins upon an arrest. Arrest records are Public Records. Because public records are available to the public and sold in bulk to private background check companies, it is important that you take the right steps to resolve your case that allows you to make this record a non-public record in the future. Having the case against you dropped, dismissed, or having the adjudication withheld is key.

Public vs. Non-Public Records

Public records are records created and maintain by the government. They often include many personal details. Running a personal background check on a website such as BeenVerified.com will often shock people. There are many companies out there that provide this service and the data they sell about you is all public records.

Chapter 119, Florida Statutes: Public Records

Chapter 119 of the Florida Statutes delineates what the State of Florida considers to be a public record. Public records can be accessed by the public – in other words, anyone. Recently, there have been measures taken to remove/redact sensitive data from public records, such as social security numbers, minor’s names, etc., however, the bulk of the data remains including every time you have been arrested.

Who Checks Your Public Records?

So why is it important to know that an arrest is a public record? Many people and organizations that you come in contact with during your life will check public records about you. These include potential employees, landlords, apartment complexes, schools, banks, etc.

Making Sure Your Arrest Record is Not Permanent

Although an arrest creates a record that is classified as a public record, Florida law allows you to make it a non-public record under certain circumstances. It is important that you understand these circumstances before you resolve your arrest. The process to make an arrest record a non-public record is called a record expungement or a record sealing. In order to qualify for either one of these you must ensure that your case is resolved in a specific manner, such as having the court withhold the adjudication of guilt.

Having Legal Counsel

The most important thing you can do after you have been arrested is to obtain legal counsel. This can be either private legal counsel, who you must pay, or a public defender, if you qualify. Representation by a criminal defense attorney (private or public) is essential in making sure you do not permanently mark your life with an arrest record.

The Legal Process after Your Arrest

The first thing you need to understand is the legal process. This can be confusing and this is why you need a criminal defense attorney anytime you have been arrested.

First Appearance

If you are physically arrested and do not bond out before the next day, you will be brought before a judge. This is called your First Appearance or Initial Appearance. The court will determine if there was probable cause for your arrest and set up the conditions for your release. This is also the first time you are given an opportunity to enter a plea.

A plea can be Not Guilty, meaning you are going to defend yourself from these charges or you need additional time to talk with a lawyer. You have a Constitutional Right to enter a plea of not guilty and it cannot be used against you in future court proceedings. You can also enter a plea of Guilty. This admits the charges against you and the court can immediately proceed to sentencing you. A plea of No Contest indicates that you are not contesting the allegations against you and you are leaving it for the court to decide if there is a factual basis for finding you guilty of the allegations.

The Arraignment

The arraignment will be the next hearing if you maintain a plea of “not guilty.” This is the first court date you will have to go to unless you have hired a lawyer to represent you. An arraignment is set for the court to determine the following:

  • The Court informs you of what the State Attorney’s Office has charged you.
  • The Court will determine if you qualify for the Public Defender to represent you if you are unrepresented.
  • The Court will provide you with another opportunity to enter a plea or change your original plea.
  • The prosecutor may make a offer to resolve your case.

If you enter a plea of Guilty or No Contest the court will probably resolve the case at that time. If you maintain a plea of not guilty the court will set the case for trial (unless a continuance is granted).

The Resolution of Your Case

A criminal case can be resolve in several ways:

  • You can maintain a not guilty plea and have a trial.
  • You can be offered alternatives to prosecution.
  • You can enter a plea of guilty or no contest and be sentenced.
  • You case can be dropped/dismissed.

If you decide to go to trial you should stop reading this article and consult with an attorney.

Alternatives to Prosecution

Many first offenders are offered an alternative to prosecution. These programs are run by the State Attorney’s Office and must be offered by the prosecutor. A judge cannot initiate this. These programs are typically called Pretrial Diversion [PTD] or Pretrial Intervention [PTI]. These programs have an “agreement” that you should understand fully. They will typically require participants to complete a certain amount of community service, an education component, and other goals depending on the nature of the crime. If successfully completed, the prosecutor will drop the charges (which is better than withholding the adjudication).

Entering a plea of “Guilty” or “No Contest”

The court will always entertain a change of plea. The fact that you initially entered a plea of not guilty does not preclude you from changing that plea in the future. People typically enter a plea of guilty or no contest based on an agreement with the prosecutor as to what the sentence will be. This is called a plea agreement. It means you know before you enter the plea what the sentence will be.

Agreement to a Conviction or a Withhold

In Florida you can enter a plea of guilty or no contest and be found guilty. However that does not necessarily mean you are convicted. A conviction in Florida is when the court adjudicates you guilty of the offense. An Adjudication of Guilt is a conviction. The court can withhold the adjudication of guilt and thus not convict you.

Why the Resolution of Your Case is Important

It is important how your case is resolved because that will determine whether you can make your arrest record a non-public record in the future. If you case has been dropped by the State Attorney or dismissed by the court, you may be eligible to expunge that record. If the adjudication of guilt was withheld, you may be able to seal that record.

The ability to either seal or expunge the arrest record is the ability to make that record non-public. There are more benefits to the seal/expunge procedure than I want to list here. This article is to help you resolve your case correctly so that option exists.

How to Make Your Case Non-Public

After your case has been resolved you can then determine if you are eligible or qualify to have your arrest record sealed or expunged. Sealing or expunging your record is the first step to removing this information from the public and the internet.


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.

Can You Teach With A Record

teaching in florida with a criminal record

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

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


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

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

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

Level 1 and 2 Background Check

level 1 and level 2 background screenings

The Level 1 and Level 2 background screenings (or background check) done in Florida are very confusing when it comes to having a record sealed or expunged. Is there a benefit?

The answer is yes. Expunging or sealing a record seems to benefit a potential employee when a level 1 or 2 background check is required. Below I explain this situation.

Florida Employment Background Screenings

Relating to Expungements and Sealings of Records

Many people are confused about the interactions between Chapter 435, dealing with background screenings (background check) for employment, and sections 943.0584 (restrictions on sealing records), 943.0585 (expungements) and 943.059 (sealings). The main question is what effect does an expunged or sealed record have on Level 1 or Level 2 state law required background screenings?  And do you have to disclose an expunged or sealed record when you have a level 1 or 2 background screening?

In order to find the answers to these questions we will need to first understand the laws that comprise these issues regarding the background check and Florida record expungements and sealings.

Chapter 435 – Employment Background Screenings

We need to understand how chapter 435 works. Section 435.01 points out that Chapter 435 is applicable for screening potential employees who are required to pass background screenings (background check) by law. The definitions (found under section 435.02) define “employer” as any person or entity “required by law to conduct screening of employees pursuant to this chapter.”

See also, An Arrest, A Background Check, and Your Job

See also, A Criminal Record and Your Job

Listed Agencies for the Background Check

The employers required to conduct employee background screenings pursuant to Chapter 435 are not specifically identified. However, section 435.02 does give us an idea on what type of employers would be required to do these background screenings. “Agency” is defined as any state, county, or municipal agency “that grants licenses . . . permitting the operation of an employer[.]” It further defines “specified agency” as the following:

  • Department of Health
  • Department of Children and Families
  • Division of Vocational Rehabilitation
  • Department of Education
  • Agency for Health Care Administration
  • Department of Elderly Affairs
  • Department of Juvenile Justice
  • Agency for Persons with Disabilities
  • Local Licensing Agencies approved pursuant to section 402.307
  • See, Chapter 402 – Health and Human Services; Miscellaneous Provisions

From this list we can get an idea of the types of employers that are required by law to perform the type of background screenings on potential employees required by Chapter 435. Businesses in the service field that deal directly with children, the elderly, the mentally or physically disabled, and health care services in general seemed to be the types of businesses (employers) required to perform these background screenings on potential employees.

The Two Types of Background Screenings; Level 1 Screening and Level 2 Screening

There are two types of employment background check; Level 1 and Level 2. I will start out by breaking down each of the background screenings into understandable language, then I will point out their differences.

Level 1 background screening is found under section 435.03, Florida Statutes. It as three subsections:

(1) All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

(2) Any person required by law to be screened pursuant to this section must not have an arrest awaiting final disposition, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

(3) The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.

Breakdown of Level 1 Background Check

When breaking down this statutory language note the words “by law.” This signifies that these background screenings are only appropriate for people seeking employment with entities that are required to perform these screenings. As is usual of legislative language, basic grammatical rules don’t see to apply. Therefore, I like to deconstruct the language for better understanding.
Subsection (1):

All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and through the Department of Law Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

Subsection (1) let’s us know what a Level 1 screening consists of, however – the words “not limited to” suggests that further background screenings that are more in depth is a possibility. With that in mind, this should be considered a list of the minimal amount of screening required for employment which requires a Level 1 screening.
Subsection 2:

Any person required by law to be screened pursuant to this section must not have:

  • an arrest awaiting final disposition,
  • must not have been found guilty of, . . . and
  • must not have been adjudicated delinquent, and
  • the record has not been sealed or expunged for,

any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

I have removed some of the language because “being found guilty of” encompasses all types of adult adjudications and types of pleas. An interesting point occurs with the next line “must not have been adjudicated delinquent.” This refers to Juvenile cases and the absence of language discriminating between types of adjudications seems to suggest that a juvenile offense in which the adjudication of delinquency is “withheld” is not a bar to employment.

The statute states what a potential employee cannot have on his or her record. The following line, with the conjunction “and,” states “the record has not been sealed or expunged for” any offense prohibited by section 435.04(2). This is confusing because it is hard to discern the point being made (is a sealed or expunged record a bar to employment or not?) without a full understanding of the sealing and expungement statutes.

The first thing to understand regarding expungements is that charges stemming from an arrest has to be dropped (dismissed, abandoned, etc.) or has had to been sealed for at least 10-years in order to qualify to be expunged. Arrests where the charges are dropped are not a concern according to the language of the statute.

In order to have an arrest sealed the defendant would have been found guilty of the offense and the adjudication must be withheld. The Level 1 screening statute contemplates this when it states that the potential employee must not have been found guilty of offenses prohibited under 435.04(2) “regardless of adjudication.” Since a dropped case is of no consequence to the statute, the reference to expunged record must be concerning a record originally sealed for 10-years and then expunged.

Therefore, a record of an offense listed under 435.04(2) that has been sealed would not be a bar to employment when the language “the record has not been sealed or expunged for” is interpreted correctly. The conclusion must be that the conjunction “and” and the language “the record has not been sealed or expunged for” would be clearer if it read “unless the record has been sealed or expunged for.”

Requirements For Sealing May Provide a Bar to Employment

The requirements to have a record sealed are different from having a record expunged. In particular, a record sought to be sealed must have the adjudication withheld and, the charges of which the defendant is found guilty, cannot be prohibited by section 943. 0584 or 943.059, Florida Statutes. The list of prohibited offenses is long. This brings up section 435.04(2), which is the list of offenses that a potential employee cannot have been found guilty of in the Level 1 (or Level 2) screening. By comparing the two lists we have a better understanding of which offenses in section 435.04(2) could be sealed and not a bar to employment.

Comparison of s. 435.04(2) and s. 943.0584, F.S.
Placing overlapping statutory references in section 435.04(2) with prohibited offenses in section 943.0584, side-by-side. If statute is not prohibited by s. 943.0584 or 943.059, then sealing the record may allow potential employee to qualify for employment.

Section 435.04(2)Section 943.0584
s. 393.135, F.S.s. 393.135, F.S.
s. 394.4593, F.S.s. 394.4593, F.S.
s. 415.111, F.S.Not prohibited from sealing
s. 782.04, F.S.Homicide
s. 782.07, F.S.s. 782.07, F.S.
s. 782.071, F.S.Homicide
s. 782.09, F.S.Homicide
All Chapter 784 Felony Offensess. 784.021 and 784.045, F.S.
s. 784.011, F.S. if minor victimNot prohibited from sealing
s. 784.03, F.S. if minor victimNot prohibited from sealing
s. 787.01, F.S.Kidnapping
s. 787.02, F.S.Not prohibited from sealing
s. 787.025, F.S.s. 787.025, F.S.
s. 787.04(2), F.S.Not prohibited from sealing
s. 787.04(3), F.S.Not prohibited from sealing
s. 790.115(1), F.S.Not prohibited from sealing
s. 790.115(2)(b), F.S.Not prohibited from sealing
s. 794.011, F.S.Sexual Battery
(former)s. 794.041, F.S.Sexual Battery
s. 794.05, F.S.Sexual Battery
Chapter 796Not prohibited from sealing
s. 798.02, F.S.Not prohibited from sealing
Chapter 800s. 800.04, F.S.
s. 806.01, F.S.Arson
s. 810.02, F.S.Burglary of Dwelling
s. 810.14, F.S. (if felony)s. 810.14, F.S.
s. 810.145, F.S. (if felony)Not prohibited from sealing
Chapter 812 (if felony)Robbery
s. 817.563, F.S. (if felony)Not prohibited from sealing
s. 825.102, F.S.Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
s. 825.1025, F.S.s. 825.1025, F.S.
s. 825.103, F.S.Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
s. 826.04, F.S.Not prohibited from sealing
s. 827.03, F.S.Child Abuse
s. 827.04, F.S.Not prohibited from sealing
(former)s. 827.05, F.S.Not prohibited from sealing
s. 827.071, F.S.s. 827.071, F.S.
s. 843.01, F.S.Not prohibited from sealing
s. 843.025, F.S.Not prohibited from sealing
s. 843.12, F.S.Not prohibited from sealing
s. 843.13, F.S.Not prohibited from sealing
Chapter 847s. 847.0133, s. 847.0135, s. 847.0145, F.S.
s. 874.05, F.S.Not prohibited from sealing
Chapter 893 (if felony or if any other person involved was minor)s. 893.135, F.S. and Manufacturing any substances in violation of chapter 893
s. 916.1075, F.S.s. 916.1075, F.S.
s. 944.35(3), F.S.Not prohibited from sealing
s. 944.40, F.S.Not prohibited from sealing
s. 944.46, F.S.Not prohibited from sealing
s. 944.47, F.S.Not prohibited from sealing
s. 985.701, F.S.Not prohibited from sealing
s. 985.711, F.S.Not prohibited from sealing

As can be discerned from the table above, many of the offenses that would prohibit a potential employee from employment are also prohibited from being sealed by section 943.059, Florida Statutes. However, some are not and this seems to confirm that subsection 2 (of section 435.03) allows for the employment of individuals that have had their record sealed even if it is a specified offense found in Chapter 435.

Subsection 3: (The Domestic Violence Bar to Employment)

Subsection 3 refers to a potential employee being found guilty of any act of domestic violence. Any act of domestic violence, where the defendant has been found guilty, cannot be sealed and, therefore, effectively bars employment.

Breakdown of Level 2 Background Check

Level 2 background check is very similar to Level 1 background check. It is more extensive.
435.04 Level 2 screening standards.—

(1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

. . .

(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction[.]

The level 2 background check differs only in the minimal screening standards. Unlike a Level 1 background check, a Level 2 screening requires the taking of fingerprints and a “national criminal history records checks through the Federal Bureau of Investigation.” The prohibited offenses are the same as those listed above.

What a Potential Employee Must Disclose

Potential employees are legally bound to be truthful on all applications for employment. A person who has had their arrest record sealed has an option. Once a person has their record sealed he/she may “lawfully deny or fail to acknowledge the arrests covered by the sealed record” for employment purposes, among other benefits. See. s. 943.059(4)(a), Fla. Stat. The exceptions to this ability to lawfully deny an arrest are broad when it comes to employment areas. Specifically, the statute states:

Section 943.059(4), Florida Statutes

[s. 943.059](4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal history record of a minor or an adult which is ordered sealed by a court pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject’s attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decisionmaking responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., 8., 9., and 10. for their respective licensing, access authorization, and employment purposes.

(a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:

1. Is a candidate for employment with a criminal justice agency;

2. Is a defendant in a criminal prosecution;

3. Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.0585;

4. Is a candidate for admission to The Florida Bar;

5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;

6. Is seeking to be employed or licensed by the Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses child care facilities;

7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;

8. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;

9. Is seeking to be appointed as a guardian pursuant to s. 744.3125; or

10. Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.

(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person’s failure to recite or acknowledge a sealed criminal history record.

If we review the “listed agencies” in s. 435, above, we will find some similarities with the agencies listed is s. 943.059. In the sealing statute, the listed agencies are as follows:

  • Criminal Justice Agency
  • The Florida Bar
  • Department of Children and Families
  • The Division of Vocational Rehabilitation within the Department of Education
  • The Agency for Health Care Administration
  • The Agency for Persons with Disabilities
  • The Department of Health
  • The Department of Elderly Affairs
  • The Department of Juvenile Justice
  • The Department of Education
  • The Division of Insurance Agent and Agency Services within the Department of Financial Services

The law states that when a person seeks direct employment, employment as a contractor, or licensing to work through these agencies he or she must disclose the record of arrest. This statute differs from 435 above, in that it is not a bar to employment. It only requires disclosure even if the record has been sealed.

Conclusions

The conclusions we seek are what effect would sealing an arrest record have on a person seeking employment with an entity that requires a Level 1 or Level 2 background check and would a sealed record have to be disclosed.

It seems the language of sections 435.03 and 435.04, Florida Statutes, would remove the bar to employment for those arrests that are “not prohibited from sealing” and the arrest has been sealed. We can conclude that sealing an arrest record may help in obtaining employment with such entity.

Section 943.059, Florida Statutes, that governs the sealing of records, will require the truthful disclosure of any sealed arrests to those agencies that require the Level 1 and Level 2 background screenings. Here we may conclude that even if the record is sealed a person seeking employment with one of these entities would still be required to disclose the details of the arrest. For this reason, anyone seeking to have their arrest record sealed or expunged should obtain certified copies of the court records prior to the final order.


For More Information Emailed to You

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.


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

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

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

Record Expungement and Sealing: Certified Copies

People who are not citizens, are looking to become lawyers, enter the medical field, or become teachers need to make sure you obtain certified copies of your court file before your record is ordered expunged or sealed.

Obtain Certified Copies of Court Documents

The premise:

  1. You have been arrested once in your life.
  2. You are eligible to seal/expunge the record.
  3. You want to expunge or seal your arrest record.

Everyone who is eligible should get this done.

The Extra-Issues

  • You’re a student who plans to go to law school one day, or
  • You’re a non-citizen that wants to extend your status, change your status, or become a citizen some day, or
  • You are anybody else.

Key Issue You Cannot Overlook When Expunging or Sealing Your Record

Expunging or sealing a criminal arrest record is a legal opportunity that everyone eligible should take. Currently, Florida law allows you to either seal or expunge one criminal arrest record in your lifetime. There have been efforts to expand this but this is the present state of the law.

The key issue is that if you plan on sealing or expunging your record you need to obtain certified copies of the pertinent documents found in the court file. Not just regular copies but certified copies. And you need to obtain those certified copies of all the pertinent paperwork before the process is completed. The absolute minimum certified copies you need are:

  • The charging document.
  • The police report.
  • The final disposition.

There may be other documents you should have that are unique to your case. Make sure you discuss this with your attorney.

KEY TAKE-AWAY: Obtain certified copies of the pertinent records in your court file

Those certified documents should be kept in a secure place. They may be needed in certain situations such as applying to the Florida Bar or if you are not a United States citizen (see below).

What if the Clerk of Court has purged the file and these documents no longer exist? This is a very real possibility, especially with older cases. Today, many Clerk’s of Court scan all their files – so those records will be around for a long time. However, older files were not scanned. Some may be on microfiche or some other medium or just in their original paper form. If you have an older case you need to try and secure these documents as soon as possible – even if you do not qualify to have the record sealed or expunged.

People that should be thinking about obtaining certified copies.

Non-citizens: Not all arrests are going to get you deported. Which ones that will, however, are changing everyday. You cannot change the fact that you have been arrested. You can try to expunge or seal that arrest record. Before you do or when you are consulting with a lawyer to expunge your record make sure you understand the following:

  • Sealing or Expunging your record will not hide it from United States Immigration or Customs.
  • Obtain certified copies of your court record. You will need them in the future if your goal is to become a citizen or re-apply for a visa.

Wannabe Lawyers: Despite the fact that the Florida Bar is the one mandatory “association” every Florida Lawyer must be a member of – and – that the lawyer you hire to seal or expunge your record is suppose to know the law, it doesn’t mean he or she knows all of the law. So you should know this:

  • The Florida Bar will want to see the court documents of any arrest you were involved in when you apply for membership.
  • The law requires you to disclose any expunged arrest to the Florida Bar.
  • The Florida Bar will not understand what it means when you tell them your record was expunged.

Wannabe Law Enforcement and Caregivers: People who want to become law enforcement officers (including firemen) or work in the healthcare industry will also want these documents.

I could go on and on, or simply say “everyone” ever charged with a crime should have certified copies of these documents in a secure place. However, I wanted to stress this point with the ones I have listed. It is much easier just to have those certified documents handy now, than to wait and hope they still exist later.

This was rewritten from a post I wrote on ejdirgapa/Blogspot.com on April 8, 2016.


For More Information Emailed to You

You can submit your information below and we will email you information about our record expungement and sealing services and representation. You can also go to our ⚖ Florida Expungement webpage for more details.

You will not be placed on a mailing list and we share your information with NO ONE. For more information, see our privacy policy.

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

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

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

Criminal Case Resolutions

Withholding the Adjudication of Guilt

As criminal lawyers we try to do the best for our client. This means working out the best possible resolution to the case if we can’t fight it at trial. We often are concerned about the penalties and how they will affect our client’s life. What we often forget, though, is what effect the record will have on their life. Anything other than adjudication withheld causes even the smallest offense to become a life sentence.

The Great News! that the Offer Is To Plea To A Misdemeanor

When representing defendants in felony cases we often think of an amendment to a misdemeanor as a victory. This is especially true the more serious the felony. Getting it knocked down to a misdemeanor means he or she won’t lose rights, won’t be a convicted felon, and won’t have to deal with a scoresheet for sentencing.
Those are all great achievements however, just because you got the burglary of a dwelling knocked down to a simple trespass doesn’t mean your client is “off the hook.” A plea to a lesser included offense of a misdemeanor from a felony means your client’s arrest history will still reflect a felony unless the resolution is adjudication withheld. Remember, criminal history records start at the arrest. That means regardless of the outcome of the case – your client’s criminal history will start with an arrest for the Burglary of a Dwelling.

The Hook That Is An Arrest Record

An arrest record is just that – a record of arrests. The only way to get rid of a black mark on an arrest record is to either seal the record or expunge it. Yes, your client was only found guilty of a trespass … and if you look far enough down on that record you may find some abbreviation that indicates that your client was only found guilty of the trespass. HOWEVER at the very top it will still say “arrested for Burglary of a Dwelling.” When the average person reads that, they will only see “burglary of a dwelling.”

Adjudication Withheld on All Amendments to LIO

It is very important to ask for the withhold of adjudication on the Lesser Included Offense [LIO]. This is especially true if this is the first criminal offense for your client. If your client has had previous arrests you need to know if he has ever been adjudicated guilty. If not, he still has the ability to seal or expunge an arrest (including one for a serious felony) so long as the misdemeanor disposition is adjudication withheld.

Judges and Prosecutors

Judges see lots of defendants everyday. They hear all the bad excuses and lies daily. You need to shake them out of that rut when they are dealing with your client by pointing out why adjudication withheld is appropriate for the lesser included offense. Today the main reason for asking for the withhold is the internet. Without the ability to seal the arrest, the offense your client is pleading to will haunt him or her for life. If that is not the punishment the court wants to impose then the disposition needs to be adjudication withheld.
Prosecutors need to also understand the penalties imposed. If they are willing to amend a felony to a misdemeanor they probably realize your client doesn’t deserve the punishment of a felony. They have to be made to understand that the record is a life sentence unless it can be sealed at a later date. The withhold is a necessary requirement.
___________________
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 representation for sealing and expunging criminal records throughout the state of Florida.

Why The Courts Are Wrong About Calculating HTO Status

Calculating HTO status correctly under Florida law the right way. It may not be accepted by the courts today but it is worth educating people.

The Definition of Habitual Traffic Offender

Section 322.264, Florida Statutes, is not a penalizing statute but simply a defining statute. Once a person has been defined as a Habitual Traffic Offender [HTO] by the Florida Department of Highway Safety and Motor Vehicles [Department] their driving privilege is revoked pursuant to s. 322.27(5)(a), Fla. Stat. How a person is defined as being HTO is the focus of this article.

Let’s look at the verbatim definition found under s. 322.264, Fla. Statutes:

Habitual traffic offender defined.—A habitual traffic offender is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period:

Reviewing a driving record as maintained by the Department we can clearly see two dates for each infraction. One date indicates the day the citation was issued and the other date is the date the citation was resolved (by either paying the fine, entering a plea, or being found guilty by the court).

For purposes of this article we will consider the date the citation was issued as the offense date and the date the citation was resolved as the conviction date.  The question posed here is whether the Department must use the Offense Date or the Conviction Date when calculating the 5-year time frame.

How The Courts Have Calculated HTO Status

In State v. Phillips, 852 So.2d 922, 924 (Fla. 1st DCA 2003), the Court simple confirms that s. 322.264, Fla. Stat., is used to define (designate) a person as HTO for purposes of revoking that person’s privilege to drive under 322.27(5)(a). Further, the Courts rely on the definition in order to find a person guilty of violating s. 322.34(5), Fla. Stat. See, Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2001).

However, the question posed in this post is how the courts are interpreting the calculation methods the Department uses to define a person as HTO under s. 322.264, Fla. Stat. In Rodgers the Court seems to skim over this point relying only on whether the defendant had been so designated:

To sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5 year period, and that DMV gave the motorist the statutory notice.
Emphasis added.

In the Court’s defense, the issue was not about how the definition was interpreted but whether the defendant had been designated HTO by the Department. With that in mind the above-quoted text does reveal something about how the court views the definition. Note that it states that its record shows the requisite three separate DWLS convictions within a 5 year period.

In State v. James 928 So.2d 1269 (Fla. 2d DCA 2006), we again have a Court addressing an issue slightly askew of directly addressing how the Department designates a person as HTO but in the verbiage of the opinion we again see the same references:

For a conviction, the statute requires the State to prove that (1) DMV maintains a record on the motorist, (2) DMV’s records show the requisite three separate convictions within a five-year period, and (3) DMV notified the motorist.
Emphasis added.

The James court adds:

Whether or not his challenge to the Hillsborough County conviction has merit, at the time of the Polk County charge, the DMV records accurately reflected the existence of three prior convictions.

The courts seem to suggest that the Department use the conviction dates rather than the offense dates when designating a person as a Habitual Traffic Offender. See, Rodgers footnote 4 (The DWLS conviction dates were March 10, 1992 in Duval County; May 2, 1992 in Indian River County; and January 14, 1997 in Indian River County.)(Emphasis added)

Logical Fallacies With The Court’s Interpretation

If we take the Court’s interpretation as correct (three conviction dates within a 5-year period) then we have to accept the logical inferences that it puts forth as being the legislative intent of the statute. Remember that the definition clearly requires something to occur within a 5-year period. The two possibilities are whether we use the offense date or the conviction date. Let’s look at the inferences of using the conviction date:

Conviction Date Inferences

  • A conviction date does not necessarily coincide with the bad act.
  • A conviction date can be manipulated by a defendant.
  • A conviction date can be manipulated by the court.

If we accept the courts’ interpretation then we must conclude that the legislature intended that the definition of a person as a Habitual Traffic Offender will be determined not by the bad act itself but rather by the follow-on decisions of the defendant or the court. A defendant or his/her attorney along with the court decides the conviction date. This variable can allow a defendant charged with one of the specified offenses to try and put off the resolution of the case until after the 5-year period has run if the court agrees to the delay. Not only is this possible it occurs within the courts everyday. Defense attorneys will ask for delayed resolutions in order to specifically avoid their client being designated a Habitual Traffic Offender.

It would be hard to believe the legislative intent was to allow defendants the ability to avoid the penalties of s. 322.27(5)(a), Fla Stat., simply by putting off the resolution of their case until after a specific date. The absurdity also stands out when the specified offenses are spread out over a 15 year period yet all are resolved within the 5-year period and the designation is ordered. Is the legislative intent of revoking a person’s driving privilege meant to punish the bad driving or to punish the timing of resolving such driving?

Offense Date Inferences

Conversely, the opposite inferences occur if the offense date is used:

  • Offense date coincides with the bad act.
  • Offense date cannot be manipulated by the Defendant.
  • Offense date cannot be manipulated by the court.

The Grammatical Approach To Calculating HTO Status

Let’s look again at the statutory definition. This time let’s remove some of the verbiage that is not necessary starting first with the as maintained by the Department of Highway Safety and Motor Vehicles language. We can assume that record refers to the one maintained by the Department. Next let’s get rid of the reference to the description of the offenses, described in subsection (1) or subsection (2), since that simply defines the term offense as used in the statute.
What we have left is the following:

A “habitual traffic offender” is any person whose record shows that such person has accumulated the specified number of convictions for offenses within a 5-year period

Now lets focus on the critical part – the specified number of convictions for offenses within a 5-year period. It seems as if the Department, along with the courts, have read this from the perspective that the term offenses modifies convictions despite the fact that the preposition for clearly refutes that possibility. Additionally, the preposition within follows offenses and is linked to the a 5-year period.

Let’s look at it this way:

such person has accumulated
the specified number of convictions
for offenses within a 5-year period

This is the best way to view the language. Here we can clearly see what is grammatically within the language of the statute.

Let’s look at it from another perspective. What did the legislature have in mind when this was written and does the plain meaning of the statute clearly indicate this. As noted above, it seems hard to believe that the legislature would want to allow the defendant the ability to escape the penalty of a license revocation simply by manipulating the date of the resolution of the offense. If we assume they did not want that then we have to assume they wanted the offense date to be the dates found within the 5-year period.

The language clearly states for offenses within a 5-year period. We can therefore conclude that the modifying language for those offenses is that they must also be convictions. If this is indeed the correct interpretation of the statute it would prevent a defendant from avoiding the penalties imposed by s. 322.27(5)(a), Fla. Stat. and the courts would no longer have to entertain long drawn out pleas.

Criminal Record Expungements: More Good Stuff

In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

Double-Jeopardy Issues with Suspended License Cases

Just a quick post on double-jeopardy issues with suspended license cases

Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).  Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).

A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).

A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?

The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).

but, . . .

A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).

but wait, . . .

A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).

When someone figures out what the Gil case is trying to say please comment or contact me and let me know.

Enjoy