Attorney Eric J Dirga, PA

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.


Can A Fixed “Suspension” Thwart a Conviction for DWLS-HTO

Airline Highway, Metairie, Louisiana. Louisian...

Airline Highway, Metairie, Louisiana. Louisiana Department of Motor Vehicles office. (Photo credit: Wikipedia)

I have been perplexed by an issue that seems to depend on the Court I am before. When a client hires me with a new law offense for driving while his license has been suspended as a habitual traffic offender [HTO] and I am able to remove the HTO status and get him a valid drivers license, can the state still prove their case? The statute  (s.322.264) defines HTO as “[a] ‘habitual traffic offender’ is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles [DMV], shows that such person has accumulated the specified number of convictions for offenses described in . . .”  Some judges will note the new driving record and find no factual basis for the offense causing the state to drop their case. Other judges are under the belief that it is what the Department records reflected on the day of the arrest and will not dismiss for lack of factual basis.

The “No Factual Basis” Argument

In Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2002), the appellate court was presented with the question of whether a computer printout of the defendant’s driving record (as maintained by the Department) was sufficient to present a prima facie case for the first two elements of the offense of driving while license suspended for HTO [DWLS-HTO](that 1. the defendant’s license was suspended under s. 322.264, and 2. that the Department gave notice of the suspension to the defendant). The answer was in the affirmative.

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. These statutes permit the state to make this proof by presenting a certified copy of the motorist’s driving record maintained by DMV.

Id. at 483.

Typically, the state has in their possession (and they provide through discovery) a copy of the defendant’s driving record that is usually within a month of the arrest but not on the date of the arrest. This record will show that on a specific date before the arrest the defendant’s license was suspended for a period of time that extended through the date of arrest. It will also show a date that is allegedly the date notice was sent to the defendant. According to Rodgers, this is all they need to introduce to get past a judgment of acquital [JOA] for the first two elements of the offense. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002); Bowen v. State, 833 So.2d 288 (Fla. 5th DCA 2002);  see also, Card v. State, 927 So.2d 200 (Fla. 5th DCA 2006).

By logical implication a record, as maintained by the Department, that does not show a suspension prior to the date of the arrest would not present a prima facie showing to withstand a JOA.

As Maintain on the Date of Arrest

The other argument is that it doesn’t matter that the record has been “fixed” it just matters whether or not the Department maintained a record on the day of the arrest that reflected a suspension and notice. This theory is supported by State v. James, 928 So.2d 1269 (Fla. 2d DCA 2006).

In James, the court states that “[e]ven if Mr. James is successful in vacating his Hillsborough County conviction, the DMV records would be affected only from the date that the conviction was set aside.” However, the court seems to make several presumptions in this case. For instance, the court presumes that the record reflected a third conviction and that the DMV record was “accurate.” Moreover, the court points out that the DMV record only need show that the driver’s privilege had been suspended “at the time” the driver was stopped.

State’s Record vs. Defendant’s Record

Let’s say the Driver is stopped on day 1 and cited for DWLS-HTO. On day 20 the State runs a DMV record and it indicates that the Driver was designated HTO on day -10. Their DMV record would then show that from day -10 to day 20 the DMV maintained a record that indicated the Driver was HTO. On top of that, the record would reflect that the suspension was for 5-years. Then let’s say the Driver fixes his DMV record and on day 50 the DMV record does not show an HTO designation at all. Once fixed, and once there are no longer the prerequisite offenses for HTO designation, the DMV redacts the suspension from their maintained records.  Now, should a trial occur, the state would have a record on day 20 showing an HTO designation, the Driver would have a record on day 50 showing no designation, and no one would have anything showing what the DMV had maintained on their records on the day of the offense.

The definition of HTO refers to the records “as maintained by the DMV.” In the scenario above, the maintained records on the day of the trial would not show the suspension. However, James suggests that it is what the records reflect at the time of the offense. The state can only show what the records reflected on day 20. Is this enough for a judgment of acquittal? It is definitely enough to argue that the charge has not been proven beyond a reasonable doubt. And if the State tries to argue that the record was “fixed” object as to facts not in evidence (unless they have done their due diligence and produced the certified records of the “fix”).

So the question remains, can a fixed suspension thwart a conviction for DWLS-HTO?

As of the day of this post I have yet to go to trial and argue this issue.

What can you do with a BPO drivers license?

I’m always looking for cases that define what can be done with a BPO license.  I want to do a blog listing cases with activities.  Please forward me any additional cases that you may have:

Britt v. State, 50 Fla. Supp. 2d 16 (9th Jud. Cir., 1991)

Allert v. State, 9 Fla. L. Weekly Supp. 499c (20th Jd. Cir., 2002)

State v. Quiroli, 9 Fla. L. Weekly Supp. 780b (15th Jud. Cir., Sep 12, 2002)

Vilches v. State, 12 Fla. L. Weekly Supp. 530a (11th Jud. Cir., Mar 29, 2005)

Please comment with cases or email me at

Eric J Dirga, PA

FLA Expungements: A Brief History, Part 2.

florida expungement history part 2
Ah, Part 2 of the amazing History of Florida Expungements. There is never a dull moment at the Florida Appellate Courts. Prepare to have your mind blown as you read about burden shifting and the factual basis. Put your seat belts on…


Green v. State

It seems obvious that a “petitioner” for relief would carry the burden.  The question with sealing or expunging a criminal record in Florida is whether meeting all the statutory and rule criteria shifts the burden to the state?  This has become a more interesting issue due to recent opinions that have come down from the higher courts.  To really get at this issue we need to delve back to a short little case called Green v. State, 505 So.2d 38 (Fla 4th DCA 1987).  This case is brief and to the point:

“Not only do appellant’s petition and affidavit meet the statutory criteria, but the forms appellant has used have been approved by the supreme court.  Since appellant’s petition was alternatively titled ‘Petition to Expunge or Seal,’ the trial court abused its discretion in denying appellant’s petition where appellant met the criteria for the sealing of criminal history records as provided by section…”

This seems to suggest that once the petitioner has fulfilled the requirements of the statute the court is obliged to grant the petition absent an objection from the state.

Anderson v. State

Ten years later, in a case called Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997), the court was a bit bolder in its position and clarified it this way, it stated that:

“It is our view that once an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records.”

This refers to the Rules of Criminal Procedure and “court records” and seems to suggest that the court is bound to seal the court records so long as the Rules have been followed.  Non-judicial records are governed by statute.

Kanji v. State

The court said that denial of the petition was discretionary but, if all requirements had been met, the court was required to give “good reason for denial based on the facts and circumstances of the individual case.” Id. at 252.  Moreover, “the exercise of discretion contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge.” Id. at 254: Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009)(reiterating that the term “sole discretion” is not unfettered discretion permitting the arbitrary denial of an expunction).

Baker v. State

Now the shift of the burden is seemingly complete upon meeting the statutory criteria (for non-judicial records) and the criteria required to be met in the Florida Rules of Criminal Procedure (judicial records).  In Baker v. State, 36 Fla. L. Weekly D275a (Fla. 1st DCA, Feb 7, 2011), the court, referencing the statutory and rules requirements, stated that although “these authorities do not confer a right to expunction on the petitioner, satisfaction of their requirements does create a presumption in favor of expunction.”  The court went on to state that “it is an abuse of discretion [the standard by which appellate courts review denials*] for the trial court to deny the petition without a factual basis.” Id. (citations omitted).


In order for the court to have a factual basis to support the denial of a petition to expunge (that has met all statutory and rule requirements) the court must rely on “the facts and circumstances of the individual case.”  Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009)(emphasis added).  In Harman, the trial court denied the petition based solely on argument of the prosecutor despite the petitioners compliance with all requirements.  No testimony or documentation was offered by the state.  The Harman court found this to be an abuse of discretion (even though the petitioner failed to object to the state’s argument). Id. at 899; see also VFD v. State, 19 So.3d 1172 (Fla. 1st DCA 2009)(stating that “[i]n the absence of evidence presented at the hearing to support the prosecutor’s representations, the trial court had no specific factual basis to support the denial of VFD’s petition to expunge”).  Thus, as the First and Second DCA have articulated, actual evidence must be properly admitted to form a factual basis for a trial court to rely on in denying a petition that has met all statutory and rule requirements.

*Oymayan v. State, 765 So.2d 812, 814 (Fla. 1st DCA 2000); VFD v. State, 19 So.3d 1172, 1174 (Fla. 1st DCA 2009).

…to be continued.

Read Florida Expungement History, Part 1

FLA Expungements: A Brief History, Part 1.

history of expungements part 1

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


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

Johnson v. State

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

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

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


State v. Sobie

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


Capuano v. State

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

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

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

can a pardon make you eligible to expunge your record

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

Will a Pardon Change Your Conviction

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

Doe v. State of Florida

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

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

Denial of Expungement

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

Appeal to 5th District Court of Appeal – Reversed

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

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

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

Randall v. FDLE

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

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

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

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

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

RJL v. State of Florida

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

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


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

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

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

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.