If you have been arrested, Florida law allows a once-in-a-lifetime opportunity to have your criminal history record to either be expunged or sealed.
What is an Expunction?
A criminal record expunction generally means that your criminal history is cleared, or removed, from your official record and will not appear on a criminal background check. Further, after an expunction, your criminal history record is not available to the general public. A criminal record expunction pursuant to Florida Statute § 943.0585(4) states that a criminal record history “must be physically destroyed or obliterated by any criminal justice agency having custody of such record…”. In order to be eligible to have your record expunged, the charges brought against you by the State Attorney’s Office must have either (1) not been filed or (2) been subsequently dismissed, or Nolle Prosequi, and you must have no other prior criminal history.
What is a Sealing?
Where an expunction means that the record of your arrest is destroyed, a record sealing means that your criminal history record is only available to yourself, to your attorney, to criminal justice agencies (law enforcement), to judges and a few other entities as provided in Florida Statute § 943.059(4)(a)1-10. As with a record expunction, a record that has been sealed is not available to the general public. Whereas to be eligible for a record expunction requires that the criminal charges have either been not filed or dismissed, you are eligible for a record sealing if the adjudication of guilt in your case has been withheld by the court. A criminal history record that has been sealed for ten (10) years may be expunged.
How do I have my record expunged or sealed?
The process to have your record sealed or expunged can be a frustrating one. There are very particular forms and procedures that must be used, and if there are any irregularities at any step of the process, the application can be denied. This is why it is recommended that you hire an experienced attorney to assist in the process. At the Law Offices of R. Wayne Richter, P.A., we have more than a decade of experience working with all agencies involved in sealing and expunging records.
Once it is determined that you are eligible to have your record sealed or expunged, the process can begin immediately. The expunction or sealing process however cannot begin if you are currently on probation. The first step in the process is to have a Certificate of Eligibility issued by the Florida Department of Law Enforcement (“FDLE”). In order to obtain this Certificate, you must complete an Application for Certificate of Eligibility and sign it before a notary public. If you are attempting to have your record expunged, Section B of the Application for Certificate of Eligibility must be completed by the State Attorney or Statewide Prosecutor who has jurisdiction over your case. In addition, a fingerprint card must be obtained and you must be fingerprinted by an authorized law enforcement or criminal justice agency. Finally, you must include the non-refundable FDLE application fee.
After FDLE has issued and returned the original Certificate of Eligibility, this does NOT guarantee your record will be sealed or expunged. It is just the first step in the process. Next, you must prepare a Petition to be filed with the court in the county where you were arrested. To the Petition, you must attach the Certificate of Eligibility obtained from FDLE and an Affidavit stating that you have no prior criminal history. All of these documents must be filed as a package along with the filing fee charged by the Clerk of Court.
The final step after the filing has been made, is to obtain an Order from the judge presiding over the division where your original case was prosecuted. Depending on the county you are working with, a hearing may or may not need to be coordinated with the judge’s office as well as the state attorney’s office.
If the judge grants your petition, and once the Order has been signed, the clerk of court, state attorney’s office and any law enforcement agencies involved in the arrest should be notified and each agency must either remove, or seal, the arrest record from their system.
How would a criminal record expunction or sealing help me?
In addition to having the record of your arrest removed from your official criminal history record, a criminal record expunction or sealing permits you, with a few exceptions, to “lawfully deny or fail to acknowledge” your arrest. For instance, if a job application asks the question, have you ever been arrested or convicted of a crime, with a criminal history expunction or sealing, you may legally answer, “No”.
Some criminal offenses are not permitted to be expunged or sealed. For a review of your case, please contact our office and we can further advise you on eligibility requirements. We look forward to assisting you with this process!