Discretion of the Court

This page provides links to Florida Case Law specifically about the effect of the statutory language sole discretion of the court means in regards to the granting a petition to seal or expunge.

⚖ Expungement Case Law

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.

Sole Discretion of the Court

Both sections 943.0585 and 943.059, Florida Statutes, refer to the sole discretion of the court. This sometimes leads judges, lawyers, and laypersons into the belief that the granting of a petition to seal or expunge is completely arbitrary. It is not.

Florida Seal and Expunge Case Law – Sole Discretion of the Court

The discretion of the court to deny a petition to seal or expunge a criminal record has been litigated often ever since the language sole discretion of the court was added. Before the language was added courts found that the court had no discretion to deny a request where the petitioner had satisfied all the statutory and procedural requirements. Today it is clear the court’s discretion is limited.

Grey v. State, 199 So.3d 988 (Fla. 4th DCA 2016): The court . . . denied her petition based on the nature of the initial charge and the corresponding probable cause affidavit. In this case, the court relied solely upon the probable cause affidavit as the basis to deny Appellant’s motion. Accordingly, we reverse and remand with instructions to the trial court to conduct a proper evidentiary hearing. Gotowala, see below, establishes that a court may not deny a petition to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit. Rather, the court must consider the facts actually established in the petitioner’s case.

Simone Maxwell, a/k/a Symone Maxwell, v. State, 185 So.3d 702 (Fla. 4th DCA 2016): The court found that the trial court gave acceptable reasons for denying Appellant’s petition. Those reasons were sufficiently related to the specific facts and circumstances of her case to constitute good reasons to deny the petition. Although Appellant relies on Baker, 53 So. 3d at 1148, that case is distinguishable. Baker dealt with expunging an arrest on charges that the State elected not to pursue. It did not involve an appellate reversal after a jury’s guilty verdict. Further, the trial court in Baker considered only the nature of the charge and the defendant’s occupation. This contrasts with the present case, where the trial court also considered the underlying facts and trial testimony.

Gotowala v. State, 184 So.3d 568 (Fla. 4th DCA 2016): the lower court’s mere reliance on the facts as laid out in a probable cause affidavit does not show “the court ma[d]e its decision based on consideration of all the facts and circumstances” of Gotowala’s case. Moreover, the court’s order does not indicate the specific facts that led it to conclude that sealing Gotowala’s records would pose a danger to public safety. Remanded with instructions that the trial court must provide specific reasons for denying Gotowala’s petition in a written order or after conducting an evidentiary hearing. The record must be clear that the decision was based on facts and circumstances of Gotowala’s individual case and not merely “generalized considerations.” On remand, the trial court again denied the petition based on the facts outlined in the arrest affidavit.

Shanks v. State, 82 So.3d 1226 (Fla. 1st DCA 2012): Daniel Shanks petitioned to have his criminal history record sealed, attaching the requisite affidavit and certificate of eligibility from the Florida Department of Law Enforcement. The trial court entered an order denying the petition to seal, stating (apart from formal parts) only: Having thoroughly reviewed the case and in consideration to the Amended Petition to Seal Criminal History Record, Response, and being fully advised in the premises, this Court denies the Petition to Expunge/Seal, pursuant to F.S. § 943.059. Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case. However [w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks’] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks’] request to seal his records. Reversed and remanded.

State v. S.A.B., 65 So. 3d 1160 (Fla. 5th DCA 2011): Although the rules of criminal procedure do not generally pertain to juvenile proceedings, rule 3.692 is expressly applicable to “all” petitions to seal or expunge. Even if rule 3.692 is not applicable, the trial court has the authority to utilize this procedure in the absence of a conflicting rule. Fla. R. Jud. Admin. 2.420(c)(9)(A)(vii).

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011): Appellant appeals an order denying his petition to expunge his criminal history records related to a charge that the State elected not to pursue. After a hearing at which no evidence was adduced, the trial court entered an order denying Appellant’s petition based on the nature of the charge and the nature of Appellant’s occupation. Where the petitioner has satisfied the requirements of the relevant rules and statutes, it is an abuse of discretion for the trial court to deny the petition without a factual basis. In deciding whether to grant a motion to expunge, a trial court must weigh the policy of public access to records against the long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty. The court’s discretion must be exercised based on the particular facts and circumstances surrounding the records at issue, and not solely on the nature of the charge. It is improper to deny a petition for expunction based on facts that would be applicable to any person seeking such relief.

State v. Contini, 18 F.L.W. Supp 273b (17th Jud. Cir., _, 2010): Defendant’s Petition for Expungement sought to expunge the unfiled felony count of resisting/obstructing an officer with violence and to expunge and/or seal the original arrest for resisting/obstructing a police officer with violence. Defendant seeks only to expunge that portion of the record pertaining to the unfiled felony arrest. The State argued that the Defendant did not and could not meet the conditions precedent for an expungement. The State did not differentiate between a request for full expungement and the partial expungement requested by Defendant. The State’s focus is on full expungement. Defendant contends that the trial court should be affirmed based upon the specific language of § 943.0585, Fla. Stat. (2009) which states [t]his section does not prevent the Court from ordering the expunction of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. The Defendant also cites to § 775.021 (1), Fla. Stat. (2009) concerning statutory construction and requirement that a statute be construed most favorably to the accused. Based on the foregoing the trial court’s order granting expungement of only a portion of a judicial record containing criminal history information and a portion of a criminal history record is AFFIRMED.

VFD v. State, 19 So.3d 1172 (Fla. 1st DCA 2009): In 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. Denial of VFD’s petition on grounds that the records, if not expunged, might — for reasons applicable in any case — prove useful in the future falls short of the exercise of discretion that the statute requires. The trial court abused its discretion by not hearing evidence and exercising its discretion based on the facts and circumstances of VFD’s case. The trial court was alerted to factual disputes. No evidence refuted VFD’s version of events. Accordingly, we reverse and remand with instructions to take evidence before either granting or denying VFD’s petition for articulated reasons based on the facts and circumstances of his case.

Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009): Kanji was arrested for a felony in Orange County, Florida. The State subsequently filed a Notice of No Information. The Notice recited that evidence submitted by law enforcement agency insufficient to prove guilt beyond a reasonable doubt. The State filed a response in opposition to the petition and requested a hearing. The State argued that members of the public who came into contact with Kanji should have unfettered access to his criminal history records so they might be better informed before establishing a relationship with him. The State also observed that the arresting affidavits reflected that Kanji’s purported wrongdoing constituted a “violation of trust” because the alleged victim was a family friend. Although section 943.0585 provides that any request for expunction of a criminal history record may be denied at the sole discretion of the court, Florida courts have consistently held that such discretion is not unfettered. The words sole discretion as used in this section do not permit the arbitrary denial of expunction. In exercising its discretion, the trial court must consider all the facts and circumstances and may not deny the petition based solely on the nature of the crime.

Pulcini v. State, 949 So.2d 1150 (Fla. 3d DCA 2007): Petitioner met all of the requirements of section 943.059, the trial court abused its discretion in denying her petition. The trial court’s stated reason, that the public’s interest in having access to Pulcini’s criminal history record outweighs Pulcini’s interest in sealing her record, is, on its own, insufficient. Although we recognize the trial court has discretion, a trial court’s discretion is not unfettered. Therefore, a trial court may deny the petition if there is good reason for the denial based on the facts and circumstances of the individual case. The record shows only counsel’s argument, filings, and Pulcini’s nolo contendere plea, which are not sufficient reasons to support the trial court’s denial. Accordingly, we reverse and remand with instructions to grant Pulcini’s petition to seal her criminal record.

Harrison v. State, 14 Fla. L. Weekly Supp. 702a (9th Jud. Cir., May 14, 2007): Defendant was arrested . . . for Aggravated Assault With a Firearm based on a Charging Affidavit/Arrest Report. However, . . . a “Request for Administrative Transfer” was filed and the case was transferred from the Circuit Court to the Traffic Division of the County Court. When the Information was filed on April 30, 2002, Reckless Driving was the only charge contained therein. [The Defendant] pled no contest to the Reckless Driving charge[.]. Thereafter, he petitioned for an order sealing his judicial criminal history records[.] In its “Opposition,” the State argued. . . that the Petition should be denied because of the unproven allegations in the Charging Affidavit, i.e., the charge of Aggravated Assault With a Firearm. The standard of review is whether the trial court abused its discretion in denying the Petition to Seal. See e.g., Oymayan v. State, 765 So. 2d 812, 813 (Fla. 1st DCA 2000) (orders denying expungement of criminal history records are reviewed under abuse of discretion standard). See also Parker v. State, 904 So. 2d 370, 379 (Fla. 2005) (discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable; i.e, where no reasonable person would take the view adopted by trial court). Furthermore, a trial court’s order denying a petition to seal is entitled to a presumption of correctness and appellate courts must not substitute their judgment for the discretion and judgment given to the trial court judge. See Smith v. State, 614 So. 2d 525, 528 (Fla. 5th DCA 1993). It is improper for a trial court to consider charges which have not been brought against a defendant. See Merritt v. State, 522 So. 2d 93 (Fla. 1st DCA 1988).

Godoy v. State, 845 So.2d 1016 (Fla. 3d DCA 2003): The petitioners entered pleas of nolo contendere to an information charging them with voting fraud, and received a sentence of one year of probation, adjudication withheld. They sought to have the records sealed under section 943.059, Florida Statutes (2002). The trial court denied their petition stating [t]his type of crime goes to part of [the] Constitution[al] system, therefore, at this time I will use my discretion and deny your motion to seal. As a consequence the Court reversed the denial of the petitioner’s request and remanded the cause with instructions to the trial court to exercise its discretion in accordance with Anderson (see below); that is, to render its discretionary decision based on all of the facts and circumstances, not solely on the nature of the charge.

Gutkind v. State, 765 So.2d 66 (Fla.4th DCA 2000): Appellant appeals from the trial court’s decision to seal his records instead of granting his petition to expunge his criminal history record under section 943.0585, Florida Statutes (1995). Any person who complies with the requirements of section 943.0585 may petition the court for the expunction of his/her criminal history record. However, [t]his section does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court. It is error for the trial court to refuse or fail to exercise its discretion. Reversed.

Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997): Defendant moved to seal his criminal history records. He obtained the required Certificate of Eligibility from FDLE. The trial court denied the motion and defendant appealed. The threshold question is whether the trial court has the discretion to deny a petition to seal criminal history records. For purposes of a petition to seal or expunge, a distinction must be drawn between (a) nonjudicial criminal history records, and (b) court records. The Court concluded that the statute (§ 943.059, Fla.Stat.) should be interpreted as written, and it explicitly allows the trial court discretion to deny a request for sealing based on the particular circumstances of the case. Further, it was the Court’s 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, however the petition is addressed to the sound discretion of the trial court and the petition may be denied if there is a good reason for denial based on the facts and circumstances of the individual case. Court found that denying relief based solely on nature of the charge was an abuse of discretion.

Smith v. State, 614 So.2d 525 (Fla. 5th DCA 1993): This case is often cited by prosecutors for wrong reasons in some circuits. Deals with previous statute 943.058. Court struggles with the discretion given to court under 1988 amendment. On rehearing the court focused on Rule 3.692 and the requirement for a meaningful hearing when requested. Key wording is that a hearing needs to be requested. In first dissent J. Dauksch addresses the discretion issue by citing previous cases: the words sole discretion as used in section 943.058 do not permit arbitrary, capricious or whimsical denial of expunction. Instead, this court must decide whether the trial judge used reasonable discretion in denying expunction.

Gonzalez v. State, 565 So.2d 410 (Fla. 3d DCA 1990): The 1988 statutory amendment (similar to current statute) required the court to employ an abuse of discretion standard in determining whether the trial judge wrongly denied expunction of the record. The words “sole discretion” as used in section 943.058 do not permit arbitrary, capricious or whimsical denial of expunction. Instead, this court must decide whether the trial judge used reasonable discretion in denying expunction. It is within the trial court’s discretion to find that the public has just as much right to know of the criminal records of existing public employees as it does to know of the criminal records of those seeking a position of public employment or trust.

Cases That Were Prior To The Statutory Amendment Follow:

Rumpza v. State, 534 So.2d 1251 (Fla. 2d DCA 1988): The petition (which was not contested by the state) was sufficient on its face to warrant the relief requested, and that the trial court failed to offer adequate justification for denying the petition.

Merritt v. State, 522 So.2d 93 (Fla. 1st DCA 1988): Under s. 943.058, Fla. Stat., court found the quantity of a drug is an invalid reason for refusing to seal a record. Moreover, an objection to sealing a record based on criminal charges never brought against a defendant cannot be considered a valid reason to deny a petition to seal. It was likewise improper in the instant case to use, as a ground for refusing to seal a record, the fact that, as a result of a negotiated plea, a charge was never brought against the defendant. See, Harrison v. State, 14 F.L.W. Supp 702a (9th Jud. Cir., May 14, 2007)(Applying same standard under s. 943.059, Fla. Stat., stating that it is improper for a trial court to consider charges which have not been brought against a defendant.)

Thomas v. State, 513 So.2d 163 (Fla. 2d DCA 1987): Under s. 943.058(2), Fla. Stat., the court found a person who meets the criteria set forth in the statute a substantive right to have his record sealed and that the trial court erred in denying him this right, a court does not have unbridled discretion when it considers a petition that meets all of the criteria of the statute, find no reason why offenses involving the element of intent should receive different treatment under section 943.058, and while we agree that an attorney has a duty to obey the law and is properly held to a high degree of integrity, we can find no reason why the benefits of the statute should be denied on that basis.

Williamson v. State, 510 So.2d 1052 (Fla. 3d DCA 1987): Concluding that there can be no reason to deny an otherwise statutorily qualified defendant’s petition to seal records, and thus no discretion to do so under section 943.058, Florida Statutes. The suggestion that a trial court could, as here, refuse to seal records because the speedy trial rule prevented the State from refiling charges against the defendant is no more acceptable than the preposterous suggestion that it could refuse to seal records because it disagreed with a jury’s verdict of acquittal. It is no more tolerable that a mere arrest without conviction can operate to deprive a defendant of the right to have his record sealed than it is tolerable that an arrest without conviction can be used to increase a defendant’s point score for sentencing guideline purposes. (Eventually superseded by new statutes)

Green v. State, 505 So.2d 38 (Fla. 4th DCA 1987): Not only did appellant’s petition and affidavit meet the statutory criteria, but the forms appellant used had 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 943.058(2), Florida Statutes (1985), and amended Rules 3.692 and 3.989, Florida Rules of Criminal Procedure.

Canter v. State, 448 So.2d 64 (Fla. 3d DCA 1984): The court read the statute as giving the trial court some discretion and found that when the petitioner met the criteria set out in the statute, the state did not object, and there was no other indication in the record of any pertinent reason for denying the motion, the court abused its discretion in not ordering the records sealed. Overruled, Hernandez v. State, 603 So.2d 105 (Fla. 3d DCA 1992)(statutory language changed in 1988 amendment to s. 943.058, Fla. Stat. Same language found in current statute).


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