Can’t Be Sealed Even if Withheld
Eric J. Dirga, P.A., Office Orlando
REMEMBER: This list applies only if you were found guilty of the below-listed charges. If the charges you were arrested for were amended, reduced, or the case was dropped you may still qualify.
The FDLE has a comprehensive list of what can and cannot be sealed under the Florida Sealing Statute (section 943.059, Florida Statutes). This is where you should look to be absolutely convinced. FDLE: CHARGES THAT CANNOT BE SEALED EVEN IF ADJUDICATION WAS WITHHELD
Why You May Not Be Able To Have Your Record Sealed Or Expunged
Here is a quick list of why, despite all your desires, you cannot seal or expunge your Florida criminal record:
- You have been convicted of a criminal offense (anywhere at any time).
- You have already sealed or expunged a criminal record in Florida.
- FOR EXPUNGEMENT: Your case was not dropped/dismissed (You may still qualify for sealing the record).
- FOR SEALING: Your case resulted in a withhold but is prohibited by statute (see list below).
Do You Have A Prior Conviction
Under Florida law any conviction for a criminal offense bars you from ever sealing or expunging a criminal record (except if you were the victim of human trafficking). Let me repeat this – If you were ever convicted of a criminal offense = you are not eligible.
Be careful, in Florida being found guilty does not mean you were necessarily convicted. You can be found guilty and have the adjudication (the conviction) withheld. See the difference between a conviction and a withhold here.
If you were convicted of a criminal offense you may be able to get that conviction overturned. In Florida, the ways to do this are limited and time sensitive. The sooner you try the better. In other states there may be other ways to address convictions.
Have You Already Sealed Or Expunged A Criminal Record IN FLORIDA
Florida allows only one sealing or expungement for a Florida charge under its statutes per lifetime. This does not apply to out-of-state expungements. Florida is only concerned with prior sealings or expungements in the state of Florida. If you have already had a criminal record sealed or expunged in Florida you cannot do it again.
The only exception is if you have had a qualified juvenile expungement done in the past. Those do not count towards your one chance to seal or expunge a criminal record in Florida. Those expungements are only for non-violent misdemeanor juvenile cases that successfully completed a diversion program.
Expungement Requires That Your Case Was Dropped
You can expunge a case if it was dropped or dismissed prior to a trial. If it was not then it will not qualify to be expunged. However, it may still qualify to be sealed. (See the differences between a sealing and an expungement.). If you do not understand this please contact me. It can be confusing.
Sealing Means You Were Found Guilty And Received a Withhold (Not Convicted) AND Your Charge Is Not Prohibited (What You Pled To Is Not Listed Below)
The charges below refer to what you were ultimately found guilty of – not what you were arrested for:
- 393.135 Sexual misconduct of developmentally disabled
- 394.4593 Sexual misconduct of the mentally disabled
- 787.025 Luring or enticing a child
- Chapter 794 Sexual Battery (if your charged starts with 794.nnn you are ineligible)
- 796.03 Procuring person under age of 18 for prostitution
- 800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
- 810.14 Voyeurism
- 817.034 Florida Communications Fraud Act
- 825.1025 Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person
- 827.071 Sexual performance by a child
- Chapter 839 Offense by Public Officers and Employees
- 847.0133 Protection of minors; prohibition of certain acts in connection with obscenity
- 847.0135 Computer pornography; traveling to meet minor
- 847.0145 Selling or buying of minors
- 893.135 Trafficking in Controlled Substances
- 916.1075 Sexual misconduct mentally ill defendants
- Aggravated assault
- Aggravated battery
- Illegal use of explosives
- Child abuse or aggravated child abuse
- Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
- Aircraft piracy
- Homicide (Murder)
- Sexual battery (Rape)
- Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority
- Burglary of a dwelling
- Stalking and aggravated stalking
- Act of domestic violence as defined in s. 741.28
- Home invasion robbery
- Act of terrorism as defined in s. 775.30
- Manufacturing any substances in violation of chapter 893 (Controlled Substances)
The list above includes attempts to commit such crimes also.
Shock v. State, 750 So.2d 769 (Fla. 5th DCA 2000): Appellant asserts that because his offense was only an attempt to violate that statute, he is entitled to have the record sealed. He says he violated section 777.04, a general attempt statute and not the drug trafficking statute section 893.135. We disagree and affirm the order of denial. The record-sealing statute says that if the criminal history record relates to the drug trafficking statute then the record will not be sealed. Certainly an attempt to traffic in drugs relates to drug trafficking so logically the legislature meant to include the attempt.
Remember that a Dropped Case Can Be Expunged
Don’t be confused by FDLE’s website – any offense can be expunged if the case was dropped/dismissed and you otherwise qualify.
Babun v. State, 576 So.2d 377 (Fla. 3d DCA 1991): The State concedes that the trial court erroneously applied section 943.058, Florida Statutes (1989), in denying a motion to expunge and seal court records showing that the movant was arrested and charged with a criminal offense. The statute, which prohibits the sealing of records in a completed case, does not apply where the charges are nolle prossed.
Do You Need An Attorney To Seal Or Expunge Your Record – Yes
You can try and do it on your own however I will suggest you hire someone that knows what they are doing, like me.