I receive calls quite frequently from both new and previous clients inquiring about having a prior criminal record sealed or expunged. While the terms are commonly used interchangeably, they apply to different circumstances and require a different process, depending on the outcome of the original charge.
A. Record Sealing
Florida Statute 943.059 provides that criminal history information concerning a prior arrest can be sealed if the defendant was prosecuted for a charge which resulted in a guilty or no contest plea where the court did not formally convict the defendant or “withheld adjudication”. In addition, the defendant must not have ever been convicted of any other criminal offense ( felony or misdemeanor) at the time the records sealing is requested. There are a few enumerated offenses for which the sealing of a record cannot be obtained regardless of whether adjudication was withheld or not. These offenses primarily include child abuse, obscenity, and sexual offenses.
Once an order sealing criminal records information is entered by the court, all records ( court and law enforcement documents, computer entries, etc) must be removed from public view, and can only be accessed under the authority of a subsequent court order.
The process to obtain a records expungement pursuant to Florida Statute 943.0585 is basically the same as a records sealing. The difference is that expungement applies to cases where the defendant was arrested, but not prosecuted further by the State Attorney, either by initially refusing to file a formal charge ( or “information” ) or by dismissing ( or “nolle prossing” ) the case after prosecution has commenced.
C. Patience required
Unfortunately the sealing or expungement process can be a lengthy one that can last as long as 6 months from the initial application process. The FDLE is required to conduct a background check to make sure the defendant is eligible for the requested relief. As might be expected, there are thousands of these applications made in Florida each year. Given the budgetary contraints placed upon all state agencies, the FDLE is woefully understaffed to handle this volume of requests in a more timely fashion. When I call to the FDLE office in Tallahassee, I always have the image of one or two clerks working at their desks piled high with hundreds of applications.
D. Common Issues
Once a criminal record is sealed or expunged, it ” disappears” for most purposes. You should understand however, that under certain circumstances, you may be nonetheless be required to divulge a prior criminal record. These circumstances generally involve applications for employment with the US Armed Forces, State and local government, law enforcement, school boards, and some professional schools.
When making application for a sealing or expungement, my clients sometimes indicate that they have a number of prior arrests which they want to eliminate. While multiple arrests stemming from a single criminal episode are eligible, please understand, Florida law only permits ONE sealing or expungement. Be sure to use that opportunity wisely and for the criminal charge which most likely would cause problems with future employment.
In spite of these limitations, a record sealing or expungement is a relatively inexpensive way to remove an otherwise isolated criminal incident from the public eye and from the view of a prospective employer.
I am available for a no cost consultation at my office in St Petersburg should you wish to discuss the circumstances of your particular case and your options under Florida law.
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