Sealing/Expunging a Criminal Record in Florida

SEALING AND EXPUNGING CRIMINAL RECORDS IN FLORIDA

As a criminal defense attorney, I am often asked about how to seal or expunge a criminal record in Florida.  In today’s post, I will answer some of the most common questions about sealing and expunging criminal records, including: 

• What is the difference between sealing and expunging a record?

• Do I qualify to have my record sealed or expunged?

• How do I seal my record?

• How do I expunge my record?

• If my record is sealed or expunged, who has access to my record?

• Can I lawfully deny the record once it is sealed or expunged?

• Common FAQs

The laws associated with sealing and expunging records are Florida Statute 943.0585 (expunging); Florida Statute 943.059 (sealing) and Chapter 11C-7, Florida Administrative Code.  These laws discuss how to seal or expunge your record; what charges can be sealed or expunged; and what charges cannot be sealed or expunged.

The Florida Department of Law Enforcement provides the service through which the applicable charges can be sealed or expunged.  

What is the difference between sealing and expunging a record?

Expunged

Florida Statute 943.0585(4) states that, pursuant to the Court’s order to expunge the record, the record must be “physically destroyed or obliterated by any criminal justice agency having custody of such record.”

This means that a criminal record that is expunged will be destroyed by the Clerk of the Court, the arresting police agency, the State Attorney’s Office, and any other criminal justice agency involved in the case.  The agencies must physically destroy their actual files.  This includes digital information, like computer records.  However, any identifying information, such as DNA or fingerprints, are excluded from the destruction.

The only agency that will retain a record of the arrest, per statute, will be FDLE.

 Sealed

When the record is ordered to be sealed, agencies do not have to destroy them. However, they must make the records confidential and not publicize them to anyone.

Florida Statute 943.059(4) states that, upon Court order to seal a record, the record is “confidential.”

This means that a criminal record that is sealed will be kept on file with the Clerk, the State Attorney’s Office, and with the arresting police agency, but the record will be placed in a sealed envelope.  It cannot be viewed by the public unless a Court order to unseal the record is obtained.

The Florida Department of Law Enforcement (FDLE) will also keep a record of the arrest.

Do I qualify to have my record sealed or expunged?

In order to Seal or Expunge your criminal record it must be determined that you are eligible to do so.  The Florida Department of Law Enforcement (FDLE) is the governing body who determines whether or not a person is eligible to Seal or Expunge their criminal record.  The following statutes may be referred to in order to determine eligibility:

Expunging a criminal record – Florida Statute §943.0585

Sealing a criminal record – Florida Statute §943.059

If you have ever been adjudicated guilty (or adjudged delinquent as a juvenile) of any misdemeanor or felony crime, then you will not be eligible to seal or expunge your criminal record.  This includes a conviction for DUI, Reckless Driving or Driving while license suspended (DWLS).

In order to Seal or Expunge your criminal record, the case that you seek to seal or expunge must be closed.  This would include the completion of all court supervision including any probationary terms.

Qualifications for Expungement:

To have your record expunged, the following qualifications must be met:

• Must never have been adjudicated guilty (convicted) of a crime or ordinance

• Have never secured a prior sealing or expunction of a criminal history record (unless expunction is being sought of a criminal offense sealed for 10 years, and is otherwise eligible for expunction)

  • If seeking expunction from the record sealed for 10 years, must have obtained a court order sealing the record for a minimum of 10 years because adjudication was withheld or was not dismissed prior to trial

• Must have no other petition for sealing or expunging a record pending before any court

• An arrest occurred for a criminal charge (a physical arrest or a Notice to Appear for a Court)

• The case is closed by one of the following ways:

• • No Action/No Information – This means that after you were arrested, the Office of the State Attorney reviewed the circumstances of your arrest and decided not to file any charges against you.
  • Nolle Prosse (Dismissal) – This means that after you were arrested, the Office of the State Attorney did file formal charges against you but later decided to dismiss them.  This may be because of lack of evidence, problems with witnesses, participation in a pre-trial intervention program or many other possible reasons.
  • Acquittal by a Judge or Jury at trial – The means that you had a trial and were found not guilty of the charges brought against you by the Office of the State Attorney.

Qualifications for Sealing:

To have you record sealed, the following qualifications must be met:

• Must never have been adjudicated guilty (convicted) of a crime or ordinance

• Have never secured a prior sealing or expunction of a criminal history record

• Must have no other petition for sealing or expunging a record pending before any court

• An arrest occurred for a criminal charge (a physical arrest or a Notice to Appear for a Court)

• Received a withhold of adjudication of the charge

• Must no longer be under court supervision or any other sentence applicable to the arrest or alleged criminal activity to which the petition to seal pertains

How many criminal records can I Seal or Expunge?

• You may only seal or expunge one criminal record in your lifetime.  That means that if you have two prior criminal charges that arose from different arrests (and both could both be eligible for sealing or expunging), you would have to choose between the two records and decide which one to seal or expunge.
• If you have numerous criminal cases and they each directly relate to the same original arrest, then the court may, at its sole discretion, order the sealing or expunction of your criminal history record pertaining to more than one record. 
  • Contact our office if you have questions on whether multiple charges qualify.

 Which criminal records may not be Sealed or Expunged?

 You may not seal or expunge your criminal record if you have been Adjudicated Guilty – this means that you were found guilty by the court after a plea or trial and that the court convicted you of the crime.       

Charges that can never be sealed:

• Arson; 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; Kidnapping; Homicide; Manslaughter; Sexual Battery; Robbery; Carjacking; Lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of 16 years; 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 a person in familial or custodial authority; Burglary of a dwelling; Stalking and Aggravated Stalking; Act of Domestic Violence; Home-invasion Robbery; Act of Terrorism; Manufacturing any substances in violation of §893; Attempting or conspiring to commit any of the above-listed crimes
• Sexual misconduct with developmentally disabled person and related offenses; Sexual misconduct with mental health patient and related offenses; Luring or enticing a child; Sexual Battery and related offenses; Procuring person under 18 for prostitution; Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age; Voyeurism; Florida Communication Fraud Act; Lewd or lascivious offense upon or in presence of elderly person or disabled person; Sexual performance by a child; Offenses By Public Officers and Employees; Showing, selling, etc., obscene literature to minor; Computer pornography; Selling or buying of minors; Trafficking in controlled substances; Sexual misconduct with mentally deficient or mentally ill defendant and related offenses; a violation of any offense qualified for registration as a sexual predator under §775.21 or for registration as a sexual offender under §943.0435.

  How do I seal my record?

  The process to seal a record can be lengthy.  So be patient.  The process is listed in the referenced statutes, administrative code, and on the FDLE seal/expunge website page.  A brief overview of the process is described here for you:

1. Your case must be completed with the Court, and you must not have been adjudicated guilty

2. To Petition the Court to seal your case, you must first obtain a certificate of eligibility from FDLE.  To obtain this certificate, you must:

   1. Obtain an application for the certificate from FDLE (available on the website)

   2. Complete the application

      1. Section A of the application must be completed and signed in the presence of a notary public.

   3. Be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint form must include the applicant’s name, race, sex, date of birth, social security number, and signature, prior to submission to FDLE. An FDLE Fingerprint Form is supplied with the application package available on the FDLE website.

   4. Obtain a certified disposition of the case that you are applying to have sealed. This may be obtained from the Clerk of Court in the county in which the charge(s) were brought. For Pre-trial Intervention cases and other Diversion programs, a certified letter of completion from the State Attorney’s office may substitute for a certified disposition. Provide a certified copy of Termination of Probation, if applicable.

   5. A NONREFUNDABLE money order or cashier’s check for $75.00 made payable to the FDLE must accompany the application.

3. Submit all of the items listed above to FDLE.  All items are required at the time that the application is submitted. (If an item is missing or the application or fingerprint form is not completed, the application will be returned unprocessed.)
4. Once the completed packet is submitted to FDLE, FDLE will begin their process of ensuring eligibility requirements. 
5. If FDLE accepts the application and determines you are eligible, they will send you a Certificate of Eligibility.
6. A Petition to Seal the Record is then filed with the Clerk’s office, along with the original Certificate from FDLE, and the appropriate filing fee. (Copies of the Petition and certificate are provided to the appropriate parties); the Petition is set for hearing and heard by the assigned Judge for determination.

The process to Seal or Expunge a criminal record can take approximately 4 – 6 months.  Please contact our office if you have any questions or would like to Seal or Expunge a past criminal record.

 How do I expunge my record?

The process to expunge a record can be lengthy.  So be patient.  The process is listed in the referenced statutes, administrative code, and on the FDLE seal/expunge website page. 

The process to expunge a record is very similar to the process of sealing a record.  There is one additional step for the expunction of a record.  (The additional step is added under Step (2) referenced in the sealing process above.) 

The additional step:  In addition to completing Section A of the application for certificate of eligibility, Section B of the application must also be completed.  You must have the state attorney complete Section B of the application. (If not completed, the application will be processed as a sealing of your criminal history record).

The remainder of the process is the same.

I applied for a Certificate of Eligibility with FDLE, but my certificate was denied.  Why?

Reasons for denial

1. The criminal history record reflects that you have been adjudicated guilty of a criminal offense or comparable ordinance violation.  If applicable, that you have been adjudicated delinquent for committing any felony or a misdemeanor specified in s.943.051(3)b. 

Certain driving violations are classified as criminal, such as DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked.       

1. The criminal history record reflects that you have been adjudicated guilty of or adjudicated delinquent for committing one or more of the acts stemming from the arrest or alleged criminal activity to which the application pertains.
2. The criminal history record reflects that you have received a prior sealing or expunction of a criminal history record.
3. The criminal history record to which the application pertains relates to a violation of one of the criminal offenses that is not eligible for sealing/expunging.  (See section above for charges that cannot be sealed/expunged).
4. The criminal history record reflects that you have another petition to seal or expunge pending before a court or competent jurisdiction.
5. The criminal history record reflects that the court supervision applicable to the disposition of the arrest or alleged criminal activity to which the application pertains has not been completed.
6. [For expunction only] The criminal history record reflects that some or all of the charges related to the arrest or criminal activity to which the application pertains were not dismissed prior to trial, adjudication, or the withholding of adjudication. If no other disqualification applies, the record would be eligible to be sealed.

If my record is sealed or expunged, who has access to my record?

If your record is sealed or expunged, you may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when: 

1. You are a candidate for employment with a criminal justice agency;
2. You are a defendant in a criminal prosecution;
3. You concurrently or subsequently petition sealing/expunging of a record;
4. You are a candidate for admission to The Florida Bar;
5. You are seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
6. You are seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or
7. You are attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is the subject to a criminal history background check under state or federal law.

Can I lawfully deny the record once it is sealed or expunged?

 Once your criminal record is sealed or expunged, you may deny or fail to acknowledge your criminal record.  However, there are a few exceptions where a person must disclose a criminal record when the record was sealed or expunged. 

 A person must disclose their sealed or expunged criminal record when:

• The person is a candidate for employment with a criminal justice agency;
• The person is a defendant in a criminal prosecution;
• The person is seeking to seal or expunge a record under §943.0583 or §943.059;
• The person is a candidate for admission to The Florida Bar;
• The person is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
• The person is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
• The person is seeking to be licensed by the Division of Insurance Agent and Agency Services with the Department of Financial Services; or
• The person is seeking to be appointed as guardian pursuant to section 744.3125.

 In addition to the above exceptions, a person with a sealed record must also disclose when:

• The person is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law
• The person is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm.  (this only applies to determine an applicant’s eligibility under section 790.06)

Common FAQs 

Common FAQs are addressed by FDLE on their website.  The common questions are listed below. 

• How do I have a criminal history record sealed or expunged?
• Where can I find the application for Certification of Eligibility?
• Why do I have a criminal history record when the charges against me were dropped/dismissed?
• What is the difference between having a criminal history record sealed vs. expunged?
• When is my criminal history record sealed or expunged?
• How many dates of arrest can I have sealed or expunged?
• What charges may not be sealed?
• What charges may be expunged?
• Can I appeal the denial of my application for a Certificate of Eligibility to seal or expunge my criminal history record?
• If I receive a full pardon can I have my criminal history record sealed or expunged?
• If I receive clemency, will my record be automatically expunged?
• If I have my civil rights restored, will my criminal history record disappear?
• Do I have to apply for a Certificate of Eligibility to have my juvenile criminal history record sealed or expunged?
• If I have a criminal history record sealed or expunged in another state or jurisdiction, am I still eligible to have a criminal history record sealed or expunged within the State of Florida?
• How long does it typically take to receive a response from my application for a Certificate of Eligibility?
• What type of background check is conducted by FDLE to determine my eligibility to have a criminal history record sealed or expunged?
• Why is the Florida Department of Highway Safety and Motor Vehicles checked to determine my eligibility to have my criminal history record sealed or expunged?
• Who should receive a copy of the order to seal or expunge a criminal history record
• hat do I do with my Certificate of Eligibility?