Category Archives: Clearing Criminal Record

How To Expunge A Criminal Record In Florida


Starting Your Expungement

For the non-lawyer trying to save a buck or two, expunging a criminal record will initially sound easy. The first “easy” sound regarding how to expunge your record usually comes from another non-lawyer such as a clerk at the courthouse. Years ago FDLE would provide expunge “packets” to the Clerk’s Office to hand out to lawyers and non-lawyers alike. There were pre-approved fingerprint cards and applications back then – don’t try creating a merge application back then because it would not be accepted. The non-lawyer would ask the clerk if she knew anything about expunging a record and the clerk would hand over the packet and add “you don’t need an attorney for that.”

Today, it is seemingly much easier. FDLE has put everything online. No longer do you have to ask someone for them to tell you about a mysterious packet – just Google it. FDLE has the entire mystery packet online. Get online and print out everything FDLE put on there website.

Getting Help Without Paying An Attorney

Forget the clerk that told you that you did not need a lawyer. She can’t give out legal advice. However, the FDLE website download includes instructions for obtaining the Certificate of Eligibility. You’ve got that but that’s as far as FDLE goes. You need that certificate so get that first.

The next step after receiving a Certificate of Eligibility is to file the petition, serve copies on all the required offices, set a hearing (if necessary), and if there is a hearing – arguing why it should be granted. Where do you find help for all that? The first place to look is in the Florida Rules of Criminal Procedure. You’ll need to also Google for that. Don’t worry, there are a lot of sources for these rules. Once you pick one you need to look at rules 3.692 and 3.989. This is where you will find the form for the petition and the affidavit. Break out your word processor and start formatting.

Finally, look at the Florida Statutes. You’ll need to focus on section 943.0585, Florida Statutes. Read it, then read it again. This will complete the non-lawyer help resources. Now read it again.

What Do I Do With All This?

Let’s take a step back. Let’s do some backward planning. What is your goal? To have the court sign an order expunging your criminal record. So ultimately you are trying to get to court.
How do you get to court? You have to file the petition and you have to do that correctly (read above for help). And when you file the petition you need to file the Certificate of Eligibility with the petition.

So first you need to secure the Certificate of Eligibility from the FDLE. Next, properly prepare the petition and accompanying affidavit (see rules listed above). Serve the petition on all necessary parties. File petition with Certificate of Eligibility with the court. Request a hearing.

Addendum

I know this seems very skeletal. Unfortunately, law school is three years long and I can’t cover it all here. Try rereading this admittedly brief article. It does spell out the basic steps and should help you achieve your goal. Take it step by step. That will make it much easier. Get the Certificate. Create the petition and affidavit. File and serve them. Ask for a hearing. Good luck.

Related resources:

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Criminal Record Expungements: More Good Stuff


In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

English: Excerpt from the swiss criminal recor...

Redacted Record.

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FLA Expungements: A Brief History, Part 1.


Florida Expungements

Clearing up your past.

COURT RECORDS ARE ALWAYS ONLY SEALED

Birth is a struggle.  It is the painful point that let’s us all know “life ain’t going to be easy.”  Like so much in life, analogies can be found everywhere.  With the Florida expungement law, this is true.  It all starts with a bill becoming law.  Good intentions within the legislators’ efforts become twisted through the process.  Like so many court “issues” the statute allowing a person to expunge his arrest record did not come to us in perfect condition – a healthy baby.   The immediate confusion centered on the new statute’s authorization of the destruction of judicial records.  There was a lot of concern that the law unconstitutionally encroached upon the Judicial branch’s powers.

The Florida Supreme Court addressed this issue early on in Johnson v. State, 336 So.2d 93 (Fla. 1976).  Poor Mr. Johnson was arrested for heinous act of possessing cannabis.  Apparently, law enforcement improperly discovered their probable cause and the evidence was suppressed by the trial court.  Later the state filed a nolle prosequi and Mr. Johnson went free.  Not long afterward (about 5 years later) Mr. Johnson decided to remove this scar from his arrest record and he moved to expunge it.  The trial court granted the motion and, never to be one-upped, the state appealed.  The trial court indicated that the statute did not include the destruction of records of judicial acts.

The Florida Supreme Court hit head-on to the issue of the legislature’s authority to require the court to destroy its own records.  The Johnson Court recognized “the value of the expungement statute” but found that the law unconstitutionally encroached upon the procedural responsibilities of the Court.  Id. at 95.  The Court’s ruling found unconstitutional the part of the law that required the destruction of judicial acts, ordered the lower court to “seal” those records and concluded that the Court would come up with rules of procedure to carry out the legislative intent of the statute.  Id.

This was not the end of the Johnson decision.  Justice Adkins dissented with an opinion and touched on issues that would eventually help carve out the present statutes we have today.  Id. at 95-96.

ANY SINGLE CONVICTION BARS THE PETITION FROM RELIEF

The Third District Court of Appeal addressed poor Mr. Sobie’s case who was arrested for public drunkenness, possession of cannabis, and possession of barbiturates to which he entered a plea of no contest.  State v. Sobie, 343 So.2d 73 (Fla. 3d DCA 1977).  The case arose after the lower court granted Mr. Sobie’s petition to expunge.  The State tried to stop the court because Mr. Sobie had previously fought alcohol in public and lost, and that time the lower court had adjudged him guilty of the municipal ordinance violation.  The Sobie Court pointed out that, even in the earliest form of the expungement statute, the wording clearing required that the petitioner “has never been convicted of a criminal offense or municipal ordinance.”  Id. at 74.  This barrier to relief continues to exist today.

THE LAW IN EFFECT AT TIME OF PETITION IS THE LAW THAT APPLIES

The same year as the Sobie court handed down their decision another court in Capuano v. State, 347 So.2d 629 (Fla. 4th DCA 1977) came down with its own decision.  The Capuano court set forth the retroactive effect of the sealing and expungement statutes and has been cited for this position as recently as 1990 in State v. Greenberg, 564 So.2d 1176 (Fla 3rd DCA 1990) and by the Attorney General in AGO 94-70 (1994).


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Can a Pardon Make you Eligible to Seal or Expunge Your Record?


In order to seal or expunge a criminal record in Florida the law requires that the Petitioner obtain a certificate of eligibility from the Florida Department of Law Enforcement. To qualify for a Certificate of Eligibility the applicant cannot have been convicted of any prior offense. Under Florida law a conviction, for purposes of sealing or expunging a criminal record, means that the petitioner was either adjudicated guilty as an adult or adjudicated delinquent as a juvenile for a criminal offense. The question that often comes up is whether a pardon will alleviate the conviction impediment.

The first instance I have found where the pardon powers of the executive collided with the legislative powers to write laws is in the case of Doe v. State, 595 So.2d 212 (Fla. 5th DCA 1992). Mr. Doe had asked and received a record sealing/expungement (at the time both sealing and expunging criminal records fell under a single statute s. 943.058, Fla. Stat.) after having been convicted of accessory to robbery in 1976. He completed a term of 10 years probation and in 1986 Mr. Doe was given a full and unconditional pardon. Thereafter, in 1990, he sought and received the granting of a sealing/expungement petition.  Soon afterwards the state asked the court to reconsider the granting of the relief and the court reversed itself stating that the petitioner, Mr. Doe, did not qualify for the relief because he had been convicted of the underlying offense, the pardon notwithstanding.

The Fifth District Court of Appeal reversed the lower court’s decision.  It pointed out that “[w]hen the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he never committed the offense.”  It cited several cases from the 1800s and a few from the 1950s in support of its position.  The Court went on and found that the lower court failed to have the state meet the burden necessary to unseal the court’s file after it had been sealed.  The decision was reversed and all seemed well that a full and unconditional pardon could eliminate the conviction barrier for sealing or expunging a criminal record.

Then in 2001 the First District Court of Appeal decided Randall v. Florida Department of Law Enforcement, 791 So.2d 1238 (Fla. 1st DCA 2001).  Mr. Randall was convicted of fraudulently making a certificate as a notary public in 1985.  He received a full pardon from the governor in 1998.  In 1999, Mr. Randall applied for a certificate of eligibility from the Florida Department of Law Enforcement [FDLE] and was denied.  The FDLE stated that the reason for denial was because he had been adjudicated guilty of the offense he sought to expunge.  Mr. Randall filed a writ of mandamus asking the circuit court to order FDLE to issue the certificate of eligibility.

The court issued a rule to show cause order and the FDLE responded stating that because of substantive changes to the statutes it was not authorized to issue a certificate of eligibility to Mr. Randall.  Mr. Randall argued that his full pardon made him eligible and he cited the Doe case.  The FDLE pointed out that Doe was decided under the previous statute.  The current statute instituted the use of the certificate of eligibility and precluded issuance if the applicant had been convicted of a criminal offense.  The Court concluded that it would have to decide the effect of a full pardon on an applicant’s ability to qualify for a certificate of eligibility under the new statute.

The Court decided that Mr. Randall was not eligible for a certificate of eligibility despite having received a full pardon from the governor.  It pointed out that recent case law stood for the proposition that “while a full pardon restores one’s civil rights . . . it does not obliterate the fact of the commission of the crime and the conviction thereof[.]”  In more simple language a pardon “involves forgiveness and not forgetfulness.”

The conflict presented between the Doe case and the Randall case did not go unnoticed by the Florida Supreme Court.  Unfortunately, Mr. Randall was killed in a car accident before the conflict could be heard and his case was dismissed as moot.  Luckily, another case was stayed pending the decision in the Randall case and, when Randall was dismissed, the Court accepted jurisdiction to resolve the conflict.  The case was R.J.L. v. State, 887 So.2d 1268 (Fla. 2004).

The facts of R.J.L. are similar to the facts in Randall.  R.J.L. requested a certificate of eligibility from FDLE after having been convicted of a criminal offense for which he received a pardon.  FDLE refused and R.J.L. filed a writ of mandamus.  Finding conflict with the Doe case the Florida Supreme Court accepted jurisdiction.

Reviewing not only the cases cited in Doe and Randall but also looking at Federal cases and other state cases the Supreme Court agreed with the Randall court.  A pardon forgives the offense but does not create a legal fiction that the crime never occurred.  It then stressed that to be eligible for a certificate of eligibility from the FDLE one could not have been convicted for the criminal record sought to be sealed or expunged.

In conclusion, the bottom line is that a full pardon will not undo the conviction for purposes of obtaining a certificate of eligibility.  Since the certificate of eligibility is a condition precedent to having a petition to seal or expunge heard, a person convicted of a crime is not eligible to have his record sealed or expunged regardless of whether he was granted a pardon.

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