Category Archives: Florida Expungement Law

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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Another Good Case on Sealing Records


A rejected petition to the Tsar of Russia by U...

A rejected petition to the Tsar of Russia by US citizens, 1903, now kept at the US National Archives (Photo credit: Wikipedia)

SHANKS v. STATE, 37 Fla. L. Weekly D728a (Fla. 1st DCA, Mar 28, 2012)

Mr. Shanks had entered a plea of nolo contendere to a charge of possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2009). The trial court withheld adjudication of guilt and sentenced him to twelve months’ drug offender probation with the special condition that he complete a six-month recovery program. Upon request of his probation officer, Mr. Shanks’ probation was terminated early. He then filed his petition to expunge or seal, which meets all rule and statutory criteria.

(Here is the problem with appealing a petition to seal or to expunge – it defeats the purpose to some degree especially with Google Scholar)

“[O]nce an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records. However, the petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997) (citation omitted). Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case.

But “[w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks'] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks'] request to seal his records.” Cole v. State, 941 So. 2d 549, 551 (Fla. 1st DCA 2006). Accordingly, we reverse and remand for further proceedings. See Light v. State, 37 Fla. L. Weekly D386 (Fla. 1st DCA Feb. 14, 2012); Hobbs v. State, 37 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 14, 2012); Baker v. State, 53 So. 3d 1147, 1148-49 (Fla. 1st DCA 2011); VFD v. State, 19 So. 3d 1172, 1175 (Fla. 1st DCA 2009).

(Note: VFD was not a juvenile. It requested this designation on appeal and the District Court followed it)

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FLA Expungements: A Brief History, Part 2.


Goya painting. Diego Mateo López Zapata in his...

Image via Wikipedia

MEETING STATUTORY CRITERIA – BURDEN SHIFTING?

It seems obvious that a “petitioner” for relief would carry the burden.  The question with sealing or expunging a criminal record in Florida is whether meeting all the statutory and rule criteria shifts the burden to the state?  This has become a more interesting issue due to recent opinions that have come down from the higher courts.  To really get at this issue we need to delve back to a short little case called Green v. State, 505 So.2d 38 (Fla 4th DCA 1987).  This case is brief and to the point:

“Not only do appellant’s petition and affidavit meet the statutory criteria, but the forms appellant has used have been approved by the supreme court.  Since appellant’s petition was alternatively titled ‘Petition to Expunge or Seal,’ the trial court abused its discretion in denying appellant’s petition where appellant met the criteria for the sealing of criminal history records as provided by section…” Id.

This seems to suggest that once the petitioner has fulfilled the requirements of the statute the court is obliged to grant the petition absent an objection from the state.

Ten years later, in a case called Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997), the court was a bit bolder in its position and clarified it this way, it stated that:

“It is our view that once an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records.”

This refers to the Rules of Criminal Procedure and “court records” and seems to suggest that the court is bound to seal the court records so long as the Rules have been followed.  Non-judicial records are governed by statute.  The court said that denial of the petition was discretionary but, if all requirements had been met, the court was required to give “good reason for denial based on the facts and circumstances of the individual case.” Id. at 252.  Moreover, “the exercise of discretion contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge.” Id. at 254: Kanji v. State, 4 So.3d 65 (Fla. 5th DCA 2009)(reiterating that the term “sole discretion” is not unfettered discretion permitting the arbitrary denial of an expunction).

Now the shift of the burden is seemingly complete upon meeting the statutory criteria (for non-judicial records) and the criteria required to be met in the Florida Rules of Criminal Procedure (judicial records).  In Baker v. State, 36 Fla. L. Weekly D275a (Fla. 1st DCA, Feb 7, 2011), the court, referencing the statutory and rules requirements, stated that although “these authorities do not confer a right to expunction on the petitioner, satisfaction of their requirements does create a presumption in favor of expunction.”  The court went on to state that “it is an abuse of discretion [the standard by which appellate courts review denials*] for the trial court to deny the petition without a factual basis.” Id. (citations omitted).

WHAT IS THE FACTUAL BASIS REGARDING A DENIAL OF A PETITION TO EXPUNGE?

In order for the court to have a factual basis to support the denial of a petition to expunge (that has met all statutory and rule requirements) the court must rely on “the facts and circumstances of the individual case.”  Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009)(emphasis added).  In Harman, the trial court denied the petition based solely on argument of the prosecutor despite the petitioners compliance with all requirements.  No testimony or documentation was offered by the state.  The Harman court found this to be an abuse of discretion (even though the petitioner failed to object to the state’s argument). Id. at 899; see also VFD v. State, 19 So.3d 1172 (Fla. 1st DCA 2009)(stating that “[i]n the absence of evidence presented at the hearing to support the prosecutor’s representations, the trial court had no specific factual basis to support the denial of VFD’s petition to expunge”).  Thus, as the First and Second DCA have articulated, actual evidence must be properly admitted to form a factual basis for a trial court to rely on in denying a petition that has met all statutory and rule requirements.

*Oymayan v. State, 765 So.2d 812, 814 (Fla. 1st DCA 2000); VFD v. State, 19 So.3d 1172, 1174 (Fla. 1st DCA 2009).

…to be continued.

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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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