CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh
During a consultation, a potential client explains that twenty years ago, when he was just 19, he was arrested and charged with possession of marijuana. He explains that after he was stopped for speeding, officers noticed a tiny half smoked marijuana cigarette in his ashtray. While in custody, he entered a "no contest" plea at his initial appearance before a judge, and received "time served" as his penalty. That meant that his case was closed, and that his total sentence was the several hours that he just spent in custody. For the past twenty years, this only contact with the criminal justice system adversely affected him in many ways. He desperately wanted to seal and/or expunge that arrest and conviction from his record. Will he be successful in sealing and/or expunging his record?
What is Sealing and Expunging?After a record has been expunged pursuant to Florida Statute 943.0585, the record must be "physically destroyed or obliterated." However, The Florida Department of Law Enforcement will maintain a copy of these records in all cases. On the other hand, a record that has been sealed under Florida Statute 943.059, will be preserved, but inaccessible to any person not having legal right of access to the record. Therefore, once a record has been sealed, the agency in possession of the documents may still retain copies of the paperwork, however, it must keep the records "confidential." A person whose criminal history record has been sealed and/or expunged, may lawfully deny those events covered by the sealed or expunged record except when dealing with the following types of agencies: The Florida Bar, health care administrators, any and all law enforcement agencies, The Department Of Children And Families, and those agencies responsible for licensing teachers. Any unauthorized release of information contained in a sealed and/or expunged record constitutes a first degree misdemeanor, punishable by up to a year in jail. (See F.S. 943.0585(4)(c))
Obtaining a Sealing and ExpungementWith some exceptions, a person is eligible to expunge their record if: 1) an Information, Indictment, or other charging document was not filed or issued in the case; or 2) the case was "nolle prossed" (dropped by the state) or dismissed by the court. If any other disposition was reached other then an acquittal, the individual is not eligible for expungement. Sealing is available under circumstances where a person receives a "withhold of adjudication" for the charge. There are several cicumstances which may render a person ineligible for sealing and/or expunging a record. First, the expungement and sealing statutes render ineligible any person who enters a plea (regardless of whether adjudication was "withheld") or was found guilty of certain enumerated offenses. Many of those offenses are listed under F.S. 907.041. Furthermore, if a person is "adjudicated" for the instant offense or has been adjudicated for any prior crime, that person would be deemed ineligible for sealing and/or expungement. Additionally, if a person has ever successfully sealed and/or expunged a prior record, or simultaneously has another pending petition, they are deemed ineligible. The only exception is that a person who has had their record sealed for a minimum of ten years, may move to have their record expunged.
Sealing and Expunging ProcessThe first step in sealing and/or expunging a client's record is to obtain and complete an "FDLE packet." Next, obtain from the clerk's office a certified copy of the disposition in the case. Then prepare an affidavit in which the client swears, among other things, that, pursuant to the requirements of the statutes, he is eligible to have his record sealed or expunged. Clients must have a fingerprint card completed by a law enforcement agency. Also, the State Attorney's Office or local prosecutor's office must certify the final disposition in the case. Then send to the FDLE all the above referenced items, along with a processing fee, and receive an FDLE certificate informing the court of the petitioner's eligibility. After receiving the certificate, the final part of the process is to return to the trial court and have the court grant the motion to seal and/or expunge.
ConclusionRegarding the potential client discussed above, unfortunately, he is without luck. Because he received an "adjudication" to the offense, he was rendered ineligible. Had the judge agreed to "withhold adjudication," he would be eligible to seal his record.