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:

• FLA Expungements: A Brief History, Part 1
• FLA Expungements: A Brief History, Part 2
• Another Good Case on Sealing Records
• Criminal Record Expungements: More Good Stuff

Eric J Dirga practices criminal traffic law in Orlando and criminal record expungements throughout the State of Florida. You can find out more information about expungements and him at his website.

Double-Jeopardy Issues with Suspended License Cases

Defendant and Counsel (1895), by Yeames, an example of the problem picture, which invites the viewer to speculate on the woman’s alleged crime and on whether or not she may be guilty. (Photo credit: Wikipedia)

Just a quick post on double-jeopardy issues with suspended license cases

Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).  Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).

A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).

A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?

The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).

but, . . .

A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).

but wait, . . .

A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).

When someone figures out what the Gil case is trying to say please comment or contact me and let me know.

Enjoy

Eric J Dirga, PA

Evidence from Recorded Communications by 911 Operator

PE - Bus Dispatcher MTA_1041 (Photo credit: Metro Transportation Library and Archive)

This is an interesting case regarding wireless communication interception by a 911 operator.  The case deals with chapter 934 which should be required reading for all graduating high school students and anyone getting married (not to mention lawyers).  It seems that I’ve copied the entire opinion – I have not.  The full opinion goes into the legislative history that supports the decision.

PERDUE v. STATE, 37 Fla. L. Weekly D305b (Fla 1st DCA, Feb 2, 2012) – Perdue raises two issues in this direct appeal of his convictions and sentences: 1) that the trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher, and 2) that section 893.13, Florida Statutes, is facially unconstitutional. We affirm the second issue without further comment based on Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011), and we reverse the first issue for the reasons that follow.

On January 17, 2010, a dispatcher with the Escambia County Sheriff’s Office, received a 911 call from a woman reporting a disturbance occurring at her daughter’s house next door. The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance. After the line was answered, the dispatcher heard screaming and yelling in the background. No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself. This call was recorded. Perdue moved to suppress the recording of the outgoing 911 call. He argued that the recording violated section 934.01(4), Florida Statutes (2009), and his right to privacy. After a hearing at which only the 911 operator testified, the trial court denied the motion. The court determined that the recording fell within the exception in section 934.03(2)(g)2, which the court broadly construed to allow an emergency agency to intercept and record any wire communication in order to acquire necessary information to render aid and assistance.

Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties’ consent or court authorization. However, an employee of an agency operating an emergency 911 system may lawfully intercept and record

incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only. It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested.

§ 934.03(2)(g)2, Fla. Stat. (2009) (emphasis added).

Communications intercepted in violation of Chapter 934, Florida Statutes, are not admissible in judicial proceedings, subject to a limited exception not applicable here. See § 934.06, Fla. Stat. (2009). Accordingly, as the trial court recognized, the disposition of the motion to suppress turns on whether the recording of the outgoing 911 call falls within the exception in section 934.03(2)(g)2.

The plain language of section 934.03(2)(g)2 allows emergency agencies to record only (1) incoming 911 calls, and (2) outgoing call-backs by the 911 dispatcher to the number from which the incoming call was placed when the call-back is necessary to obtain information required for emergency assistance. The statute does not allow other outgoing calls by the 911 dispatcher to be recorded without the consent of the person being called, even if the outgoing call is in reference to or relates to an incoming 911 call.

The Attorney General reached the same conclusion in Advisory Opinion No. 2002-56. There, the Attorney General was asked whether an employee of a municipal police department may record “an outgoing call made in reference to the recorded incoming call, if the outgoing call is made on the same line on which the incoming call is received.” See Op. Att’y Gen. Fla. 2002-56 (2002). The Attorney General answered that “[a]n outgoing call may be recorded only when it is made to the telephone number from which an emergency assistance request call was made in order to obtain information required to provide the emergency services being requested or when a called party gives permission for the call to be recorded.” Id.

Accordingly, for the reasons stated above, we reverse the denial of the motion to suppress.

Eric J Dirga

Florida 2d DCA conflicts on Gant Issue with 5th DCA

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STATE, v. McCULLOUGH, 37 Fla. L. Weekly D49b (Fla. 2d DCA, Dec 30,2011) – The State appeals from the trial court’s order granting Sharon Laverne McCullough’s motion to suppress evidence seized following her arrest. Because the search of McCullough’s car was illegal under the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009), we affirm.

McCullough was arrested during a “warrant round-up.” The arresting officer executed the warrant after McCullough pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. After McCullough locked the vehicle door, the officer effectuated the arrest under the outstanding warrant by instructing her to put her hands behind her back for handcuffing. Before being handcuffed, McCullough threw her vehicle keys to her son, who entered the residence at which the car was parked. McCullough was then escorted into the patrol car “without incident.” No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough’s son to give him the keys. After McCullough’s son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough’s key, and conducted a search inclusive of McCullough’s purse that was inside the car. The search revealed cash, marijuana, and cocaine inside McCullough’s purse.

The State argues on appeal that because the offense underlying the outstanding arrest warrant was drug-related, it necessarily follows that a search of McCullough’s vehicle incident to that arrest was per se reasonable and no further analysis is appropriate. If this reasoning is accurate, then an arrest warrant for a single sale of perishable contraband would authorize a search of the arrestee’s vehicle at any time, whether days, months, or even years later, despite the fact that it may not be reasonable to believe any evidence of the original illegal act remained. We do not believe this is what the Supreme Court envisioned when it explicitly conditioned the search of a secured arrestee’s vehicle on a reasonable belief that evidence of the underlying offense exists inside.

Gant holds that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer’s patrol car when her car was searched, this case concerns only the second prong of Gant’s holding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough’s vehicle contained evidence of the offense underlying her arrest. From the officer’s lawful standpoint outside the vehicle, he observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior — at an unknown location — would exist inside McCullough’s vehicle at the time of her arrest.

Order granting motion to suppress is affirmed. Certify conflict with Brown v. State, 24 So. 3d 671, 677 (Fla. 5th DCA 2009).

Eric J Dirga, PA

God Bless the DMV (and Happy Holidays to All)

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Malloy v. DHSMV, 19 Fla. L. Weekly Supp. 9a (18th Jud. Cir., Jul 1, 2011): Writ of Certiorari Denied – Here we have the case of the Department of Highway Safety and Motor Vehicles [Department] waiting six-years after the predicate third driving while license suspended [DWLS] conviction before they designate the driver as a habitual traffic offender [HTO] and suspend his driving privileges for the required 5-year  suspension starting in 2010.  The driver moved to quash the suspension or make it retroactive to the 2004 conviction date.  His argument was that he did not know the ramifications of his plea upon his driving privileges* and because of the delay it was too late to contest the underlying charge.  The court, in denying the petition, points out that the “long delay in the suspension process, by itself, does not create a basis for relief.” Citing DHSMV v. Hagar, 581 So.2d 214, 217 (Fla. 5th DCA 1991).

*See Bolware v. State, 995 So.2d 268, 276 (Fla. 2008)[33 Fla. L. Weekly S645a] for reasons why this argument no longer works.

Hmm, – a long delay by the Department in implementing a suspension affords the driver no relief.  This glossing over of what is, in essence, the ability of the Department to be  negligent in their duties to the detriment of the people just seems wrong.  We can banter back and forth about it being a collateral consequence, C.J. Quince’s dissent adequately points out the obvious fact that a suspension is punishment. Bolware, at 284-285.   If a person should receive a 5-year suspension when age 55 and needing to drive to work but does not have the suspension implemented until age 65 when retired, that may be a godsend.  If a person should receive a 5-year suspension when age 20 and living at a dorm in college but does not have the suspension implemented until age 30 when just hired to his or her dream job, well that’s just badluck.  I guess you could say it may work both ways under Malloy.  What the Malloy court fails to appreciate is the complete arbitrariness of their ruling and that allowing such lack of efficiency by a governmental agency can have only one possible result – detriment to the people.

Let’s take a look at a similar case that has the opposite result.  In Kuzmicz v. DHSMV, 13 Fla. L. Weekly Supp. 523a (6th Jud. Cir., Jan 27, 2006), the driver petitioned for a Writ of Certiorari when his license was suspended on August 29, 2005 for accumulation of points.  The statutory requirements for the point suspension were met on January 3, 2001.  The driver had elected to take a driving school and was required to submit proof with the clerk by January 2, 2001, but never complied.  The clerk adjudicated the driver guilty and accessed a processing fee.  The driver satisfied the processing fee on August 11, 2005.  The Kuzmicz court looked at the plain language of the law.  When a driver elects driving school but fails to comply the driver shall be deemed to have admitted the infraction and shall be adjudicated guilty.  The clerk is to notify the Department of such failure and assess a processing fee up to $18.  Section 318.15(b), Fla. Stat.  The problem, that the Kuzmicz court pointed out, was the Department waited for the payment of the processing fee before computing the points when it should have computed the points (according to the law) upon the date of the conviction ( four years earlier). See 322.27(4).

In Malloy, the court completely overlooks the plain meaning of the statute.  A habitual traffic offender is any person whose record shows that such person has accumulated the specified number of convictions for offenses within a 5-year period. Section 322.264.  The Department is authorized to suspend the license of any person without preliminary hearing upon a showing of its records that the licensee has committed an offense for which mandatory revocation of license is required upon conviction. See section 322.27(1)-(1)(a).  The Department’s ability to automatically suspend driving privileges is premised that by quickly doing so it will be protecting the public from the immediate harm posed by the driver that is guilty of such recent poor behavior.  See Kuzmicz (stating that the Department failed to adhere to the plain language of the statute by arbitrarily picking a date of conviction thus failing to promote public safety by an immediate suspension).  By allowing the Department to impose a delinquent suspension, neither public safety nor intent of the law are addressed.  The only thing promoted by the Malloy decision is the continuing inefficiency of the Florida Department of Highway Safety and Motor Vehicles.

The December Updates will be out soon.

Eric J Dirga, PA