Sealing And Expunging Of Criminal Records:

By Myles B. Schlam, J.D., CAP / CCJAP

Criminal Records

I decided to write this article because people ask me all the time if they are eligible to get their criminal records sealed or expunged, what is the difference and how to go about the process. There are many technicalities regarding Sealings and Expungements, but I am going to try to sum up the most important points in one page.

To have a criminal record either “sealed” or “expunged” a petitioner must be eligible for either a “sealing” or “expungement” under Florida Statutes section 943. I can tell you right off the bat that if you have EVER been convicted of any crime, felony or misdemeanor, you are not eligible to have any criminal record sealed or expunged. However, if you pled Nolo Contendere “No Contest” or Guilty, but the court “withheld adjudication” you may still be eligible for either a sealing or expungement. In order to determine if you were in fact convicted of a certain charge, you must get the case disposition “dipso” from the clerks office of whatever county you were charged in.

One common question I get asked is, “What is the difference between a “sealed” criminal record and one that is “expunged”?

Here is the way I explain it:

A Sealed criminal record cannot be viewed by the general public. Although it is in essence hidden from public view, certain people will be able to see that there is a file on that person, but they cannot see what is in that file. A sealed record can also be viewed by law enforcement and government officials.

An Expunged record is where the entire file is actually destroyed. There will be no indicia of the arrest or that there even was a charge when a record is properly expunged – and I stress the word properly.

While it is true that an Expungement is the best option, a very small minority of people are actually eligible for an Expungement. In order to be eligible for an Expungement, one of three things must occur.

1. The State decides to decline prosecution of your case before it goes to trial. (commonly called a “Nolle Prosse”)

2. The court dismisses the charge or grants a motion for Judgment of Acquittal. (“JOA”)

3. A client is given the opportunity to complete a court diversion program (I.e Drug Court) and after a set period of time, either 6 months or 12 months, the charge is dismissed. This is known as a “deferred prosecution”.

A Sealing of a criminal record would be an option where someone pleads “No Contest” or “Guilty” and while they are usually found Guilty, the court agrees to “Withhold Adjudication”. Again, you would need to check your case disposition to see whether the Adjudication was withheld or not. If the dispo says “Convicted”, then the Adjudication was NOT withheld and you are not eligible to get the record sealed.

Another common question I am asked is, “Can I still get a record expunged even though I have already had one sealed in the past?” or “Can I still get a record sealed, even though I have already had one expunged in the past?”

A person is only eligible to get ONE criminal record EITHER sealed or expunged in a lifetime. Therefore, if you already had a record sealed as a juvenile for instance, you cannot now have another record expunged as an adult. It is a common misbelief that a person can have one record sealed and still be eligible to have another expunged. This is false. However, if a person has had a record sealed for a period of ten years in the state of Florida, that record is eligible to be expunged.

“How long does a sealing or expungement of criminal record take?” is one of the first questions I usually get.

The answer for Expungements is approximately six months, but that is if everything is done properly and there are no set backs caused by either the petitioner or one of the several agencies an expungement must be processed by. A Sealing can be completed in less time, approximately four months, since it does not need to be processed by the State Attorney’s Office like an Expungement does.

“What charges would disqualify me from getting a record sealed or expunged?”

There is a whole list of enumerated charges that will disqualify a petitioner from getting the record sealed or expunged even if the Adjudication was Withheld. Some of these offenses which are listed in Fla Stat 907.041 include: Arson, Child Abuse, Carjacking, Robbery, Sexual Battery, Kidnapping, Burglary of a Dwelling, Homicide, Manslaughter, and “Aggravated” anything – such as Battery, Assault or Child Abuse. Acts of Domestic Violence would also be disqualifying.

“So what is the process for sealing or expungement?”

The process would begin with finding out if you are eligible for a sealing or expungement before wasting a lot of time and money. At ASI, we usually recommend a background check for those who are not sure if they may have other past convictions out there that they may have forgotten about, perhaps in another state. ASI will coordinate the background check for $50. If there are no past convictions or disqualifying offenses we would begin the process.

First, an application must be filled out stating specific and general information about the petitioner, the case and the charge/charges in question. The application must be signed by the Petitioner before a licensed Notary. If an Expungement is being sought, the application must then be turned into the State Attorney’s office in the county/circuit where the case transpired. Attached to the application should be a certified court disposition which can be obtained for about $3 from the clerk’s office. It will usually take about 45 days for the SAO to process Part B of the application, which is where they confirm or deny that the charge in question is eligible for sealing or expungement.

Once the application is signed off on by the SAO, it must be sent to Florida Dept. of Law Enforcement (FDLE) in Tallahassee to be processed. The petitioner must include fingerprints on a special card which can be obtained by ASI or the police department. The Petitioner must also include a money order or cashiers check for $75 made out to FDLE for processing. This FDLE part of the process can take anywhere from 2-3 months, depending on what time of year it is and other factors. If everything checks out OK with FDLE, after 2-3 months the petitioner should be issued a “Certificate of Eligibility”. This certificate simply states that FDLE has determined the petitioner is eligible for a sealing or expungement. However, ONLY the court can order a sealing or expungement. Once the petitioner has received the Certificate – a Petition, an Affidavit and a proposed Order needs to be filed with the court in which the charge was disposed. A copy of everything needs to be provided to the State Attorney’s Office as well. A self-addressed, stamped envelope should also be provided to the clerk.

The SAO will then have an opportunity to object to the petition if they feel strongly that it should not be sealed or expunged. I have only had one case where that happened and the charge was Battery on LEO (Law enforcement Officer) which was later dismissed. In that case, the Judge overruled the SAO’s objection at a hearing. The Judge would then sign the prepared Order and it would be sent to the Clerks Office. Whether there is a hearing on a Petition to Expunge or Seal is at the court’s discretion. In Broward County, there are hardly ever such hearings, while in Palm Beach County a hearing is always required for an expungement. Before the Clerk will enter an Order of Expungement or Seal, they will charge a fee of approximately $75 for the Expungement/Sealing and the cost of forwarding the order to all agencies which may have indicia of the charges. This would include the arresting agency for example to Expunge their records of your arrest, and Dept. of Corrections (D.O.C) who in some cases will have probation records relating to an expunged or sealed case.

One additional note: Even if you are granted a Petition to Seal or Expunge, there are five agencies that you are required by law to disclose your charges to if you are seeking employment with through them. They include: 1. The Florida Bar (if applying to be an Attorney) 2. The Dept. of Education (teacher, etc.), 3. Any law enforcement agency either State or Federal, 4. Dept. of Health, 5. Any employment dealing with adolescents, the elderly or the disabled.

If you or someone you know has had criminal charges and would like more information on the sealing or expungement of criminal records, feel free to contact ASI for a free consultation.

Sincerely yours,

Myles B. Schlam, J.D.,CAP/CCJAP

Advocare Solutions, Inc.- Executive Director

(954) 804-6888

www.drugcourtpro.com