applicable expungement law

Applicable Law, Date of the Petition

If Law Changes, You Win/Lose

If You Qualify, Do It; If Not, Wait

Statewide Representation

This page provides links to Florida Case Law regarding sealing and expungements and the applicable expungement law that is to be followed when a petition is filed with the court. 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.

Florida Case Law – Applicable Expungement Law at Time of the Filing of the Petition

The question arose about what applicable expungement law was to be used when a person petitions the court to seal or expunge a criminal record. Was it the law at the time the arrest took place, the case was resolved, or when the person petitioned the court for relief. The answer is, it is the law at the time the person petitions the court for relief.

This means that the law can be changed for better – expanding the ability to seal or expunge – or for worse, as in the case of Mary Kirby. So the wisdom gleaned from this is thus; if you qualify today, seal or expunge your record today. If you do not qualify, wait for the law to change – hopefully for the better.


The Mary Kirby Quandry

Mary Kirby found herself straddling two versions of the law. When she initially asked to seal her record the law had no prohibition regarding the offense for which she had been charged. Later she found that the law allowed her to expunge her record (after it had been sealed for a period of years) but prohibited her offense from the relief.

State v. Mary Kirby, 9 F.L.W. Supp. 614a (13th Jud. Cir., Apr 2, 2002): Petitioner was charged with Aggravated Assault in 1981 to which she pled. In 1990, the petitioner properly sealed her record. In 2001, the petitioner requested that her record be expunged. The statute had subsequently been changed to prohibit the expungement of an arrest that related to an enumerated offense found in s. 907.041, Fla. Stat. FDLE refused to issue a Certificate of Eligibility. Petitioner filed a motion to review request to expunge. At the hearing the petitioner’s attorney did not appear and the court ruled in favor of FDLE.

State v. Mary Kirby, 9 F.L.W. Supp. 615a (13th Jud. Cir., April 24, 2002): The court was advised that that the petitioner’s attorney had asked to continue the hearing on April 1 and subsequently filed a motion to set aside or rehear the motion. The court granted the motion finding that there had been a breakdown in communication.

State v. Mary Kirby, 9 F.L.W. Supp 613b (13th Jud. Cir., May 3, 2002): Court held hearing on issue. Petitioner had properly sealed her record in 1990. She asked the court to now expunge it after 10-years had elapsed, pursuant to statute. FDLE argued that an offense that related to aggravated assault was not permitted to be expunged and refused to issue a certificate of eligibility (despite having been properly sealed under the former statute). The court agreed with FDLE and refused to grant the petitioner’s request.


State v. J.C.H., 680 So.2d 606 (Fla. 2d DCA 1996): The case was initiated in 1990, when J.C.H.’s probation had been terminated five years early. The trial judge indicated a willingness to seal the defendant’s records under the statute then in effect but was persuaded to delay until the entire probationary period had passed. The court denied the motion to seal records without prejudice. Petitioner renewed his motion in 1995. Only at the request of the state did the petitioner file an additional motion. Earlier in 1995, when the subsequent motion was filed, the statute had been amended; the new statute, section 943.059, Florida Statutes (1995), did not permit sealing of records when the defendant had been charged with a violation of section 800.04, Florida Statutes. On this ground the state objected. The Court disagreed. From the procedural history of the case it was clear that the trial court initially favored granting the petition; the denial without prejudice left open the opportunity for the petitioner to renew the same motion. Thus, the law in effect at the time his original motion was filed should govern and the subsequent bar to sealing when the defendant has been charged with section 800.04 is not applicable in this case.

State v. Greenberg, 564 So.2d 1176 (Fla. 3d DCA 1990): The expungement statute as a whole is a remedial statute providing remedies which are civil in nature, and has already been held to apply retroactively. The consequences of filing a petition to expunge must be determined by the provisions of law on the date of filing.

Capuano v. State, 347 So.2d 629 (Fla. 4th DCA 1977): Finding that a denial of a petition is reviewable by appeal and the expungement statute is civil in nature and is retroactive.

Questions?

If you have questions, would like to suggest additional case law, or want to see if you qualify to have your criminal arrest record sealed or expunged – please feel free to contact me. I try to reply within 24 hours.

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