Sealing or Expunction of Criminal History Records: What All Lawyers Need to Know
by Clearwater Criminal Defense Lawyers George E. Tragos & Peter A. Sartes
In today’s high-tech world, records keeping and retrieval of records is as simple as logging on to the internet. A growing number of individuals find themselves more burdened by the paper trail created by their criminal case than the actual case itself. We find our practice contacted more and more by people frustrated by their inability to get a job, be accepted by a school, or to chaperone their children’s school field trip because of a criminal case that they thought was well behind them. In addition, we find that many of our colleagues who do not practice in the criminal realm are perplexed by the nuances between a sealing and expunction. We hope this article will provide the basic knowledge that practitioners can refer to when discussing the options available to people after the completion of their criminal case.
Even though many people refer to the process of limiting access to criminal history records as “sealing”, sealing and expunction (not expungment) are two legally separate and distinguishable events. When referring to the limitation of access to criminal history records, the appropriate terminology is not “sealing and expunction” rather it is “sealing or expunction”. Furthermore, the verb tense of expunction is to expunge.
There are four distinct forms of limiting or eliminating criminal history records. The most prevalent being sealing under section 943.059, Florida Statutes and expunction under section 943.0585, Florida Statutes. In addition, section 943.0581 provides for administrative expunction and section 943.0582 provides for pre-arrest, post-arrest, or teen court diversion program expunction.
Due to the language in sections 943.0585 and 943.059, Florida statutes, common sealing or expunction are normally once-in-a-lifetime events. Technically, if a subject has previously petitioned for sealing or expunction in any jurisdiction anywhere in the world, they are generally precluded from sealing or expunction again. If a subject has been adjudicated of a crime or comparable ordinance violation in any jurisdiction within the United States, the chances are that the FDLE background check through the Florida Crime Information Center (FCIC), the National Crime Information Center (NCIC), or the Department of Motor Vehicles and Highway Safety will yield a preclusion to the issuance of a Certificate of Eligibility which is provided by FDLE and is a predicate to petitioning for the sealing or expunction of a criminal record.
In many instances, if convictions are outside of the technological age, normally prior to around 1980, there is a good chance that a record may not surface, although both the sealing and expunction sections prescribed that knowingly providing false information to the court commits a third degree felony.
Finally, the sealing or expunction of criminal records normally applies to only one arrest or one incident of conduct. FDLE will not process an application for sealing or expunction for more than one arrest or to multiple counts unless there is a casual connection between the arrests or the multiple counts stem from the same arrest or from the same course of conduct.
A court ordered Sealing of a criminal history records is controlled pursuant to section 943.059 Florida statutes. This process makes the records confidential and exempt from the provisions of section 119.07 (1) and section 24 (a), article I of the Florida State Constitution which are commonly referred to as the Sunshine Laws. Practitioners should note that a sealed record still exists and is only available to the person who is the subject of the record, that person’s attorney, criminal justice agencies for purposes such as background checks, licensing, access authorization, and for employment purposes. In addition a sealed record is still available for review in subsequent criminal prosecutions, petitions for expunction, candidacy for employment with a criminal justice agency, or licensing with any educational facility, Juvenile Justice agency, Florida seaport, or with the Florida Department of Children and Family Services or the Department of Juvenile Justice; or is a candidate for admission to the Florida Bar. Furthermore sealed records are available during a criminal background check required for the purchase of a firearm from a licensed importer, manufacturer, or dealer. In all other instances, a subject may fail to recite or acknowledge a sealed record without committing perjury or liability.
In order to petition for a criminal history Sealing, a subject must established that the petitioner has never been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing a felony or misdemeanor specified in section 943.051 (3) (b.) which includes assault, battery, carrying a concealed weapon, unlawful use of a destructive device, negligent treatment of children, exposure of sexual organs, cruelty to animals, arson, unlawful possession or discharge of a weapon at a school sponsored event or on school property, petty theft, and unlawful possession of firearms; has not been adjudicated guilty or delinquent of committing any act stemming from the arrest or alleged criminal activity; and has never secured a prior sealing or expunction of a criminal history record.
A court ordered expunction of a criminal history record is controlled pursuant to section 943.0585 Florida statutes. It requires that the records must be physically destroyed or obliterated by any criminal justice agency having custody of those records except for records held by FDLE. Just like sealing, an expunged record is confidential and exempt from the provisions of section 119.07 (1) and section 24 (a),article I of the Florida State Constitution, but expunged records are not be available to any person. In addition, the subject of a criminal history record expunction may lawfully deny or fail to acknowledge the arrest covered by the expunged record except if that person is a candidate for employment with a criminal justice agency; is a defendant in a criminal prosecution; is a candidate for admission to the Florida Bar; is seeking to be employed or licensed by the Department of Children and Family Services or the Department of Juvenile Justice or to be employed or used by the department as a contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly; or is seeking to be employed or licensed by the Department Education, a Florida seaport or law enforcement agency.
In order to petition for expunction of a criminal history record the subject can not have been adjudicated guilty of a criminal offense or comparable ordinance violation or been adjudicated delinquent for committing any felony or misdemeanor specified in Section 943.051 (3) (b), has not been adjudicated guilty of or delinquent for committing any of the acts stemming from the arrest or alleged criminal activity and has never secured a prior sealing or expunction of a criminal history records, except for a sealing required pursuant to eligibility for expunction.
10 Year Rule
Section 943.0585(2)(h) provides that if a criminal history record was sealed pursuant to section 943.059 for a minimum of ten years because adjudication was withheld or the alleged activity to which the petition to expunge pertains was not dismissed prior to trial, without regard to whether the outcome of the trial was other than adjudication of guilt, then a subject may file a petition to expunge the already sealed record. This 10 year requirement does not apply when a plea was not entered or all charges relating to the arrest or the criminal activity were dismissed prior to trial.
Sealing and expunction are available to a minor to the same extent that they are available to adults. Although, due to the widely held misconception that the statutorily confidentiality of Florida Juvenile records is tantamount to the sealing of a juvenile record upon the reaching of the age of 18, very few people undertake the sealing or expunction of juvenile records. In fact, pursuant to section 943.0515, Florida statutes, juvenile records are maintained by the Criminal Justice Information Program for 5 years after the date that a juvenile reaches 19 years of age, unless a juvenile is classified as a serious or habitual juvenile offender, or was committed to a juvenile correctional facility or juvenile prison as a delinquent under Chapter 985, then the records are maintained for 5 years after the date that the juvenile reached 21 years of age. At that time the records are expunged automatically, unless a minor is adjudicated as an adult for a forcible felony or a person 18 years of age or older is charged with or convicted of a forcible felony and that person’s criminal history as a minor has not been destroyed. In these instances, the juvenile record is merged with that person’s adult criminal history record and is then retained as part of that person’s adult record.
One exception to the once-in-a-lifetime rule are for the expunction of those records involving non-judicial Juvenile Diversion Programs. In order to be eligible to expunge a non- judicial record for a juvenile, that juvenile must have successfully completed an authorized juvenile diversion program limited to first-time minor offenders charged with nonviolent misdemeanors completed on or after October 1, 2001 and must apply to FDLE for expunction no later than six months after the completion of the diversion program. The disclosure provisions of Section 943.0585(4)(a) do not apply, except for criminal justice agencies for the determination of eligibility for diversion programs, as part of a criminal investigation, or when the subject is a candidate for a criminal justice agency. For all other purposes, the subject may lawfully deny or fail to acknowledge the arrest and the charge covered by the expunged record. In addition, the expunction of a diversion program does not affect the subject’s eligibility to seal or expunge a subsequent criminal record under either sections 943.059, or 943.0585 Florida statutes.
Another exception to the once-in-a-lifetime rule involves unlawful arrest or mistake. A minor or an adult who is arrested by mistake, or who is determined to have been arrested contrary to the law by either a law enforcement agency, or by final order of the court is eligible for an administrative expunction pursuant to section 943.0581, Florida statutes. There are two ways in which an administrative expunction can be initiated. A law enforcement agency shall apply to FDLE for an administrative expunction if it determines, at its discretion, or by the final order of a court that an arrest was made by mistake, or contrary to law. In addition, a subject, or the parent or legal Guardian of a minor child may apply to FDL E for the expunction of a any non judicial record of an arrest alleged to have been made contrary to law or by mistake. In order to qualify, an application must be supported by the endorsement of the head of the arresting agency or the state attorney of the judicial circuit in which the arrest occurred and must be accompanied by an affidavit executed by the chief of the law enforcement agency in which the affiant verifies that the record of the arrest was reviewed and was a mistake or contrary to law. The Affidavit must also include the date and time of the rest, the name of the arresting officer, the name of the person arrested, and the crime or crimes charged.
Sections 943.059, and 943.0585 Florida statutes both have provisions for violations that can not be sealed or expunged if the subject plead guilty or no contest even if adjudication was withheld. Those violations are listed within Sections 943.059, and 943.0585 Florida statutes and include:
1.) Section 907.041, Florida statutes “dangerous crimes”
b. Aggravated assault
c. Aggravated battery
d. Illegal use of explosives
e. Child abuse or aggravated child abuse
f. Abuse of an elderly person or disabled adult or aggravated abuse of an elderly person or disabled adult
g. Aircraft piracy
k. Sexual Battery
n. Lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of 16
o. 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
p. Burglary of a dwelling
q. Stalking and aggravated stalking
r. Act of domestic violence as defined in Section 741.28, Florida Statutes
s. Home invasion robbery
t. Act of terrorism as defined by Section 775.30, Florida Statutes
u. Manufacturing any controlled substance in violation of Chapter 893
v. Conspiracy or attempt any of the above crimes
2.) Sexual misconduct with developmentally disabled person and related offenses under Section 393.135, Florida Statutes.
3.) Sexual misconduct with mental health patients and related offenses under Section 394.4593, Florida Statutes
4.) Luring or enticing a child under Section 787.025, Florida Statutes
5.) Sexual battery and related offenses under Chapter 794, Florida Statutes
6.) Procuring person under 18 for prostitution under Section 796.03, Florida Statutes
7.) Lewd or lascivious offenses committed upon or in the presence of person less than 16 years of age under Section 800.04, Florida Statutes
8.) Voyeurism under Section 810.14, Florida Statutes
9.) Florida Communications Fraud Act under Section 817.034, Florida Statutes
10.) Lewd or lascivious offenses upon or in the presence of an elderly or disabled person under Section 825.1025, Florida Statutes.
11.) Sexual performance by a child under section 827.071, Florida Statutes
12.) Offenses by public officers or employees under section 827.071, Florida Statutes
13.) Selling, showing or providing obscene literature to minors under section 847.0133, Florida Statutes
14.) Computer pornography under section 847.0135, Florida Statutes
15.) Selling or buying of minors under section 847.0145, Florida Statutes
16.) Trafficking in controlled substances under section 893.135, Florida Statutes
17.) Sexual misconduct with mentally deficient or mentally ill defendant and related offenses under section 916.1075, Florida Statutes
18.) A violation of any offense which qualifies for registration as a sexual offender or sexual predator under sections775.21 and 943.0435, Florida Statutes.
19.) DUI under section 316.1923, Florida Statutes.
20.) Reckless driving under section 316.192 Florida Statutes.
21.) Driving while license suspended cancelled or revoked (certain circumstance) under sections 322.34 and 322.341.
Both Sealing and expunction orders direct law enforcement agencies, jails and clerk’s offices to redact their material appropriately, one of the most problematic issues that face our clients is the migration of criminal history records, such as mug shots from State law enforcement websites to private websites like MySpace. The jurisdiction of the Courts only applies to State agencies and is unenforceable in the private sector. The most effective way to minimize this dilemma is to discuss sealing or expunction early in a case, and to advise clients to avoid advertising their criminal problem outside of the attorney-client relationship. Although this is not a cure, it is the best way to minimize negative exposure.
Many background search companies maintain a database from either FCIC or NCIC. The problem materializes when a client triggers an event that requires a background search. When the client’s profile is run, the arrest or criminal case is downloaded to the background search company’s website and stored. If the subject’s profile is subsequently run, even after expunction, the history remains on the private database with no current method of relief. The best way we know to minimize this exposure is to advise clients to avoid life altering events if possible. Advise against changing jobs, seeking promotions, or undertaking activities that naturally require background checks.
Be cautious of Pretrial Intervention Agreements or Diversion Programs. Some State Attorney sponsored programs include language in their agreements that restrict the sealing or expunction of records even after successful completion of the program.