When FDLE Refuses Certificate of Eligibility

FDLE Refuses To Issue Certificate

Case Law on Certificate of Eligibility

Statewide Representation

This page provides links to Florida Case Law regarding sealing and expungements and what happens when FDLE refuses to issue a Certificate of Eligibility [COE] and remedies when FDLE fails to act. The cases are listed below from the most recent to the earliest. A brief description follows. Citations were removed. Please refer to actual case for complete understanding.

Florida Seal and Expunge Case Law – FDLE Refuses to Issue Certificate of Eligibility and Other Remedies

Issues when FDLE refuses to act typically involve FDLE’s refusal to issue a certificate of eligibility to an applicant. However, other issues arise dealing with FDLE and the method to address these are including i the case law listed below.

A.J.M. v. Florida Department of Law Enforcement, 15 So.3d 707 (Fla. 3d DCA 2009): A.J.M. was pulled over for speeding. A.J.M. was later charged in circuit court with possession of cocaine, and in county court with DUI and driving while license suspended (“DWLS”). A.J.M. pled guilty to possession of cocaine, and the circuit court withheld adjudication and he now seeks to seal this charge. The DUI and DWLS charges are currently pending before the county court, and the county court stayed the proceedings pending the resolution of this appeal. The Department declined to issue the certificate of eligibility based on its determination that A.J.M. failed to meet the statutory criteria. Specifically, the Department determined that because the county court charges were pending, A.J.M. could not attest that he [had] 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 seal pertains, as required by section 943.059(2)(d). Based on the clear and unambiguous language of section 943.059(2)(d), the Department cannot issue a certificate of eligibility under these circumstances.

 

Williams v. State, 879 So.2d 77 (Fla. 3d DCA 2004): Where a certificate of expunction has been denied, the correct procedure to challenge FDLE’s ruling is to file a petition for writ of mandamus in the circuit court, naming FDLE as the respondent. See State v. Harvill, 860 So.2d 999 (Fla. 5th DCA 2003); Rowell v. State, 700 So.2d 1242 (Fla. 2d DCA 1997). The FDLE included this information in its letter of denial and the FDLE has correctly stated the procedure. In the instant case the deficiency was waived by FDLE. The petitioner wanted to seal a charged designated as Domestic Violence. A clear reading of the statutes prohibits this. FDLE was correct in not issuing a Certificate of Eligibility.

 

Walker v. Florida Department of Law Enforcement, 845 So.2d 339 (Fla. 3d DCA 2003): The matters which had given rise concerning appellant occurred in the 1970’s. There was a court order directing FDLE to seal and expunge the defendant’s records. Nevertheless, due to an error, the records were subsequently included among the criminal histories posted on the FDLE’s web site. In February 2001, WPLG Channel 10 aired a story referring to the appellant as the “Teflon teacher.” The report was based, in part, on information that was obtained from the FDLE’s web site. Prior to the airing of the report FDLE had expressly advised the station that it was under a court order to expunge claimant’s record and requested that the information not be used, but, nonetheless, the station aired the report. The appellant appeals an order dismissing his complaint for invasion of privacy against the Florida Department of Law Enforcement. The trial court correctly held that the claimant could not state a cause of action for invasion of privacy, as a matter of law, because the information allegedly disseminated by FDLE constituted a matter of legitimate public interest or concern. Additionally, the defendant has failed to comply with the notice provisions of Section 768.28(6)(a), Florida Statutes (2002), requiring proper, timely notification to the Department of Insurance as well as the Department of Law Enforcement. Moreover, FDLE’s failure to have properly and completely complied with the court order of expungement did not give rise to an independent cause of action. Appellant’s remedy is the right to return to the trial court which ordered the records expunged to seek compensatory damages for economic losses which the defendant is able to establish as a result of FDLE’s non-compliance. Such damages would be in the nature of civil compensation for violation of an injunction.

 

Tudor v. State, Florida Department of Law Enforcement, 768 So.2d 1242 (Fla. 1st DCA 2000): FDLE’s failure to comply with the 1991 court order gave appellant the right to return to the trial court for enforcement of the order to expunge, and to request compensatory sanctions for any economic losses which appellant was able to prove he sustained as a result of FDLE’s non-compliance. However, we do not believe that the agency’s failure to comply with a court order gives rise to a common law negligence action such as has been put forward by appellant in this case. The parties have been unable to provide legal authority directly addressing this concept, and our independent research has failed to disclose authority for such principle.

 

Rowell v. State, Florida Department of Law Enforcement, 700 So.2d 1242 (Fla. 2d DCA 1997): FDLE’s letter informing Rowell that a certificate [of eligibility] could not be issued in her case was neither a final agency action nor a quasi-judicial order. FDLE was merely complying with—or trying to comply with—a legislative mandate to perform a ministerial act and was not otherwise acting on its own authority. A citizen who contends that [FDLE] has not issued a certificate of eligibility in accord with section 943.059(2) may petition the [trial] court for compliance and have the issue adjudicated. Appeal dismissed as District Court did not have jurisdiction.

 

State v. Silva, 691 So.2d 529 (Fla. 3d DCA 1997): FDLE refused to comply with order to expunge non-judicial records because petitioner failed to obtain a Certificate of Eligibility. Five weeks after the order was entered, FDLE wrote to the state attorney, advising that the petitioner had not complied with the statute. FDLE stated that, under authority of paragraph 943.0585(3)(d), Florida Statutes, the agency declined to act on the order to expunge. FDLE requested that the state attorney take action within sixty days to petition the court to void the order. The state attorney did not do so. After the sixty days expired, defendant moved to hold FDLE in contempt for refusing to expunge defendant’s criminal history records. The first sentence of paragraph 943.0585(3)(d) states that . . . the department [FDLE] or any other criminal justice agency is not required to act on an order to expunge entered by a court when such order does not comply with the requirements of this section. The legislature clearly intends that obtaining the required Certificate of Eligibility is a condition precedent to obtaining any relief under the statute, and that criminal justice agencies need not act unless the required Certificate has been obtained. The final sentence emphasizes the point by saying that [a] cause of action does not arise against any criminal justice agency for failure to comply with an order to expunge when such order does not comply with the requirements of this section. The legislative intent is clear that there be no enforcement of an expungement order unless the necessary certificate has been obtained. The instruction to file with the court within 60 days is addressed to the state attorney and is, in our view, directory. FDLE and the other criminal justice agencies need not comply with the expungement order until the appropriate certificate has been obtained.

 

State v. J.W., 664 So.2d 29 (Fla. 1st DCA 1995): State sought review of court order holding FDLE in contempt for failing to abide by court order to seal records. FDLE was found properly in contempt because, although there were deficiencies with the application provided to FDLE, the department failed to seek clarification, to set aside, to vacate, prohibition, or review of the court order. It simply ignored it (s. 943.059(3)(d), Fla. Stat., now addresses this issue).


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