Am I Eligible to Seal or Expunge My Criminal Record?

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We get calls all the time from good people who want to obtain sealing or expunction of their criminal records.  Many good people find themselves charged with criminal offenses.  Sometimes people are arrested or charged with a criminal offense when shouldn't have been and sometimes people are arrested or charged with only one offense in their entire lives.  If you have a prior criminal charge and want to get it sealed or expunged, give us a call.

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Florida Statute Section 943.059 provides the law as it relates to sealed records.  Any record that is sealed is confidential and exempt from public record  and is available only to:

• the person who is the subject of the record,
  
• the person's attorney,
  
• criminal justice agencies or
  
• certain licensing agencies.

A sealed record allows you to lawfully deny or fail to acknowledge the arrest covered by the sealed record except when:

• you are a candidate for employment with a criminal justice agency

• you are a defendant in a criminal prosecution

• you are applying for expunction

• you are seeking employment, licensing or contract work with DCF (Department of Family Services) or DJJ (Department of Juvenile Justice, or employment, contracting or licensing in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly.
  

• you are seeking employment or licensing by the Department of Education, school board, university laboratory school, charter school, private or parochial school or local governmental entity that licenses child care facilities.
  

• you are attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and are subject to a criminal history background check under federal or state law

• you are seeking authorization form a Florida seaport for employment within or access to one or more of such seaports. 
  

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Florida Statute Section 943.0585 provides the law as it relates to expunging your record.  The difference between a sealing and an expunction is that your criminal record is physically destroyed or obliterated by any criminal justice agency having custody of such record.  In most all other respects, there is no difference.  The information is not available to the public and is confidential and not subject to public record. 

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When you have a criminal record sealed or expunged, the Court orders the Clerk of Court and the law enforcement agency to take that criminal case out of its public database.  Once a record is sealed or expunged, you should no longer show up on the online clerk's screen or online inmate screens.  Your arrest should not show up on criminal background checks.  You are given the lawful authority to state that you have never been arrested or charged with a criminal offense before, even though you have, unless one of the exceptions above apply (i.e. applying to become a schoolteacher, applying to become a lawyer, etc).  This could mean the difference between obtaining and not obtaining a job, or even an apartment. 

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There may be very good reasons why you do not want your record sealed or expunged.  For example, if you are not a United States Citizen, you will have the burden of proving that you were not convicted or did not commit a crime that makes you deportable or inadmissible.  You would have to provide USCIS, ICE, CBP, or an Immigration Judge with a certified disposition stating that the case was dropped.  When your record is sealed or expunged, it is more difficult to obtain a certified disposition.  If your record was sealed, you would have to file a motion to unseal it, obtain a certified disposition and then reseal it.  If your record was expunged, there would be no record and you would not be able to obtain a certified disposition stating that the case was dropped. 

Regardless of your situation, you should obtain several certified dispositions from the Clerk of Court before you seal or expunge your case and keep them in a safe place in case you ever need it as proof that the case was dropped.  You may also want to obtain certified police reports, as well. 

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No.  The Certificate of Eligibility is only the first step in the process.  The State Attorney's Office can object to the sealing or expunction, and the judge can deny it as a matter of discretion.  If the prosecutor objects, or if the judge wants decides on his or her own, the judge will usually schedule an evidentiary hearing, where you would testify and the prosecutor would lodge his or her objections, and your attorney would argue why the judge should grant the petition to seal or expunge.  The judge will typically hear about the underlying offense, any other aggravated or mitigating information about you and the offense, and make a decision on whether to seal or expunge the record. 

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Not necessarily.  An order to seal or expunge is an order to the clerk's office and to the law enforcement agency to seal or expunge the records under their control.  It is not an order affecting private companies or individuals.  So, unfortunately, in today's world, where information is often floating on the internet and impossible to erase, your arrest history may still be on some websites or in some criminal history databases of private companies, even after your record is sealed or expunged.  If you find that is the case, you may be able to write to that company with a copy of your order to seal and expunge, and request that they remove your information. 

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Because of the required process, it typically takes up to 9 months to have your record sealed or expunged.  This is because the first step in the process that everyone must go through is obtaining a Certificate of Eligibility from the Florida Department of Law Enforcement.  They will conduct a background check and if you are eligible, will issue you a Certificate of Eligibility, which must accompany a Petition to the Court to have your records sealed or expunged.  If you wait until you need your record sealed or expunged, it will be too late, because there is no way to speed up this process or to move to the front of line to get your FDLE certificate. 

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If you have ever been convicted of any crime before, no matter how minor, you are not eligible to have your record sealed or expunged.  A conviction is an adjudication of guilty, as opposed to a withhold of adjudication or nol pros. If you aren't sure if you were adjudicated guilty, you can call us and we'll take a look.  Or you can go to the Clerk's website and search for the disposition in your case.  A "WH" is short for withhold of adjudication.  An "AG" is short for Adjudication of Guilty. 

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Under very limited circumstances, a person can seal 1 criminal offense if you weren't adjudicated guilty of that offense or any other prior offense.  So, in other words, if you receive a withhold of adjudication, and you have never been adjudicated guilty of any offense before, you may be eligible to seal your record, unless it is one of the following offenses.

If you received a withhold of adjudication on any of the following offenses, unfortunately you will not be eligible to get it sealed under the current law:

• Domestic Battery
• Any Act of Domestic Violence
• Arson
• Aggravated Assault
• Aggravated Battery
• Illegal Use of Explosives
• Child Abuse
• Aggravated Child Abuse
• Aircraft Piracy
• Kidnapping
• Homicide
• Manslaughter
• Sexual Battery
• Robbery
• Carjacking
• Lewd, Lascivious or Indecent Assault or Act Upon or in the Presence of a Child Under the Age of 16 Years
• 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
• Burglary of a Dwelling
• Stalking
• Aggravated Stalking
• Home Invasion Robbery
• Terrorism
• Manufacturing Any Controlled Substance
• Attempting or Conspiring to Commit any of the Above Listed Offenses
• Scheme to Defraud
• Voyeurism
  
• Sexual Battery and Related Offenses
• Procuring Person under 18 for Prostitution
• Offenses by Public Officers and Employees
  
• Computer Pornography
• Trafficking in Controlled Substances
• Most Sexual Offenses. 

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The first step in the process is to send an application for a certificate of eligibility to the Florida Department of Law Enforcement.  Once FDLE conducts a criminal background check, they will issue a certificate of eligibility if you are eligible.  This process takes an average of 6-9 months to obtain.  Once you receive the certificate of eligibility, you can file a Petition with the Court.  If there is no objection from the State and the judge agrees, the judge will issue an Order.

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There is a $75 FDLE Application Fee and in Duval County, a $3 fee to obtain your certified disposition, and a $59 sealing/expunction fee.  If you retain us to represent you, we charge $900, which includes the above mentioned $137 fees.  We will order your certified disposition, fill out the FDLE application, walk you through obtaining a fingerprint card from JSO, file your FDLE application, draft your Petition to Seal or Expunge, draft a proposed Order to Seal or Expunge, contact the State Attorney's Office, file the Petition, and represent you in a hearing (if required by the Court).  We will also answer your questions about the process and answer your questions about employment and rental applications. 

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