Attorney Eric J Dirga, PAThis page provides links to Florida Case Law specifically dealing with the requirement of obtaining a Certificate of Eligibility as a condition precedent to the sealing or expunging of a criminal record in Florida.
The cases are list below from the most recent to the earliest. A brief description follows. Citations were removed. Please refer to actual case for complete understanding.
Obtaining a Certificate of Eligibility
Obtaining a Certificate of Eligibility from the Florida Department of Law Enforcement is a prerequisite necessary to petition the court for relief.
Florida Seal and Expunge Case Law – Certificate of Eligibility
The statutes for both sealing a criminal record and expunging a criminal record require that a certificate of eligibility be obtained prior to the relief of having non-judicial records either sealed or expunged being granted. For additional information go to the differences between judicial and non-judicial records page.
Lazard v. State, 229 So.3d 439 (Fla. 5th DCA 2017): Nixon Lazard appeals the trial court’s order denying his motion to compel the Florida Department of Law Enforcement (FDLE) to issue a certificate of eligibility to seal his criminal history record under section 943.059(2), Florida Statutes (2016). In 2016, Lazard applied to the FDLE for a certificate of eligibility to seal his criminal history record pertaining to the 2003 charge and plea, pursuant to section 943.059, Florida Statutes (2016). The FDLE sent Lazard a letter stating that it would not issue a certificate because his criminal history related to “a violation enumerated in s.907.041” (specifically, an act of domestic violence), an offense which rendered his criminal history ineligible for sealing under section 943.059. Section 943.059, Florida Statutes, establishes the requirements that a petitioner must satisfy to have his or her criminal history record sealed. Under section 943.059(2), the FDLE “shall issue” a certificate of eligibility, provided that the applicant [has complied with subsections (a) – (f)]. Here, the FDLE should have issued the certificate because Lazard satisfied the conditions of section 943.059(2).
Young v. State, 17 Fla. L. Weekly Supp. 541a (17th Jud. Cir., Apr 13, 2010): Under Fla. R. App. P. 9.315(a), “[A]fter service of the initial brief . . . the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.” Appellant petitioned the trial court to expunge or seal his criminal history record relating to his misdemeanor arrest[.]. [The court] issued an order denying Appellant’s petition, ruling that he has failed to satisfy the criteria of Section 943.0585, Fla. Stat. [for the lack of a Certificate of Eligibility]. Appellant’s petition was properly denied, as he has failed to follow the appropriate procedures set out in § 943.0585, Fla. Stat. and Fla. R. Crim. P. 3.692. The procedures set forth in that statute and rule are required before relief on a petition to expunge or seal may be granted. Under Section 943.0585(1)(a), “Each petition to a court to expunge a criminal history record is complete only when accompanied by a valid certificate of eligibility for expunction issued by the department pursuant to subsection (2).”
State v. Harvill, 860 So.2d 999 (Fla. 5th DCA 2003): Petitioner filed a petition to expunge and attached the required certificate of eligibility from the Florida Department of Law Enforcement (FDLE). However, several days before the hearing on the motion, FDLE advised petitioner’s attorney and the State that it was revoking the certificate of eligibility because FDLE learned that the petitioner secured a prior sealing or expunction of a criminal history record in Louisiana. The existence of a valid certificate of eligibility is a condition precedent to the court’s consideration of an expungement petition. The trial court erred when it failed to consider the revoked certificate of eligibility. The petitioner had not complied with the required conditions precedent. If the petitioner believes that FDLE has erroneously revoked his certificate of eligibility, he may file either a mandamus petition, or other appropriate action, in the trial court to resolve the dispute.
Norton v. State, 857 So.2d 273 (Fla. 2d DCA 2003): Petitioner filed request to seal or expunge without a Certificate of Eligibility. Since no certificate appeared in the record, the petitioner would not be entitled to expunction or sealing under s. 943.0585 or 943.059, Fla. Stat. Therefore, the Court affirmed without prejudice to any right the petitioner has to once again file his petition in accordance with the applicable statutory requirements. See also, Ramos v. State, 858 So.2d 1118 (Fla. 4th DCA 2003).
State v. S.C., 762 So.2d 1008 (Fla. 3d DCA 2000): After successfully completing his juvenile sentence, in an effort to have his file become confidential, S.C., by ore tenus motion, sought to have his file moved to juvenile court. The state argued that S.C.’s case was direct filed into adult court and that he should be treated as an adult with respect to the administration of his file. The State argues that S.C.’s failure to follow the procedure established in Florida Rule of Criminal Procedure 3.692 and sections 943.0585 and 943.059, Florida Statutes (1999), mandate reversal. The Court agreed. The statutory mechanism established for the relief sought in the instant case was not followed.
State v. Wages, 757 So.2d 1285 (Fla. 4th DCA 2000): We reverse the trial court’s order denying the state’s motion to modify its prior order granting expunction of a criminal record. As the state argued below, appellant is entitled only to have his record sealed. See § 943.059, Fla. Stat. (1999). Appellant did not obtain a certificate of eligibility for expunction from the Florida Department of Law Enforcement. See § 943.0585(2), Fla. Stat. (1999). If the record is sealed for ten years, and appellant meets the other statutory criteria, he may then apply for expunction. See § 943.0585(2)(h), Fla. Stat. (1999).
State v. Plotka, 689 So.2d 1174 (Fla. 5th DCA 1997): Petitioner failed to file a Certificate of Eligibility prior to asking the court to grant an expungement of his records. Court found Rule 3.692 inconsistant with s. 943.0585, Fla. Stat., requiring a COE, and expunged the record. Court relied on State v. D.H.W., (see below) to requiring that petitioner file a COE prior to being granted relief.
State v. D.H.W., 686 So.2d 1331 (Fla. 1996): Answering the questions posed in State v. D.H.W., 666 So.2d 564 (See below): (1) Does legislature violate separation of powers or court’s rulemaking authority when it establishes a procedure that is a condition precedent to the sealing of criminal history records maintained outside the judicial branch of government? The State argues that the statutory fee and certificate requirements are constitutional because they govern the substantive right, based on legislative enactment, to the sealing of nonjudicial records. The Court agreed. Therefore, the answer to the first certified question is no, with the proviso that a petitioner has the right to file a petition to require compliance with the statute if an agency refuses to seal the specified records. The trial court and the district court erred in determining that rule 3.692 superseded the provisions of section 943.059(2), Florida Statutes (1993), requiring a $75 processing fee and an FDLE certificate of eligibility before allowing a petition to order the sealing of nonjudicial criminal history records. (2) May a court seal all court records under Florida Rule of Criminal Procedure 3.692 without first complying with the tests described in State v. P.D.A.? The Court held that a court is not required to apply the constitutional test described in P.D.A. before ordering the sealing of judicial criminal history records, with a caveat that the court must appropriately address any constitutional issues specifically raised in a proceeding. The court need only ensure that a petitioner has complied with rule 3.692 and rule 3.989.
State v. D.H.W., 666 So.2d 564 (Fla. 2d DCA 1995): Court found that requirement to obtain Certificate of Eligibility from FDLE prior to petitioning the court for an order to seal non-judicial records was unconstitutional as a legislative intrusion into the judicial procedure. Certified questions of great public importance: (1) Does legislature violate separation of powers or court’s rulemaking authority when it establishes a procedure that is a condition precedent to the sealing of criminal history records maintained outside the judicial branch of government? (2) May a court seal all court records under Florida Rule of Criminal Procedure 3.692 without first complying with the tests described in State v. P.D.A.?
Mantilla v. State, 615 So.2d 809 (Fla. 3d DCA 1993): First case under current statutes. Court decides that certificate of eligibility [COE] does not have to be filed simultaneously with petition but petition is not complete until a COE is filed.
Walker v. State, 493 So.2d 488 (Fla. 5th DCA 1986): Persons prosecuted as youthful offenders are subject to expunction under the same provisions of law as apply to expunction of records of other adult offenders. Must follow same procedure. This case was decided under previous statute but should still apply to current procedures and statutes.
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