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Beginner's Guide: Seal and Expunge your Case

It happened a while ago.. that Arrest. The Arrest that landed your mugshot on certain websites, that may have required you to show up for court, or that case that maybe ended with a Not Guilty or a Plea with a Withhold of Adjudication. Best case scenario? The case was dropped. But it still lingers. It still happens to creep up on you on the most inopportune time and there just has to be something you can do about it... Maybe there is something you can do about it. Sealing and Expungement. Heard of it? Chances are you have heard about Sealing/Expungement, but like the majority of legal processes, there may have also been some myths or misconceptions that come along with it.

First thing to know: Sealing and Expungement are two different things.

button-41707_640Sealing is the process where the Trial Court Judge orders that the Clerk of Court SEAL the court file. When the court file is sealed, the case can no longer be accessed by typical ways. This means that people who are considering you for employment or a loan can't look into those records during a background check as they aren't available through normal public records requests. Additionally, you can legally deny that the events related to the case ever existed, unless you are applying for certain jobs or positions.

Good to KnowGOOD TO KNOW:City, county, state and federal government and agencies, including the police and military, have a legal right to access criminal history records even if they are sealed.

burn buttonExpungement takes the process a step further. The Trial Court issues an order to Expunge or DESTROY the records. The Clerk of the Court is responsible by statute to certify a copy of the court order to the State Attorney’s Office or the Statewide Prosecutors Office and the arresting agency or agencies. The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, these agencies may include the Department of Corrections, Teen Courts, and Department of Juvenile Justice.

But like many legal solutions, the road to your result isn't always so easy. Here are some common myths and misconceptions. road sign

If my case gets dropped, it's no longer on my record. Have you heard that one before? We have and unfortunately that's just not the case. Arrested or not arrested, whenever a criminal case is opened by the Clerk of Courts, that case is on a person's record unless and until the case is sealed and/or expunged. It doesn't matter if the charges were dropped, dismissed, or even if you beat the case at trial, it will still be there. I got a Withhold of Adjudication, certainly I can get it sealed or expunged. Nope. Florida has a very specific list of charges where a person just will not be able to get their case sealed/expunged. If you enter into a plea agreement, even if it is a plea of nolo contendre (or 'no contest'), and/or are found guilty, even if the court withholds adjudication, the following charges are not eligible:
  1. Arson
  2. Aggravated Assault
  3. Aggravated Battery
  4. Illegal use of explosives
  5. Child abuse or Aggravated Child Abuse
  6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
  7. Aircraft piracy
  8. Kidnapping
  9. Homicide
  10. Manslaughter
  11. Sexual Battery and any related offense
  12. Sexual/ Lewd/ Lascivious related offenses involving or in the presence of children (pretty much anyone under the age of 18)
  13. Robbery
  14. Carjacking
  15. Burglary of a dwelling
  16. Stalking of Aggravated Stalking
  17. Act of Domestic Violence, as defined in s.741.28
  18. Home-invasion Robbery
  19. Act of Terrorism as defined by s.775.30
  20. Attempting or conspiring to commit any of the above crimes
  21. Manufacturing any substances in violation of chapter 893 § 393.135, F.S.23.
  22. Sexual misconduct with developmentally disabled, mentally ill, mentally deficient, elderly, or disabled person and related offenses
  23. Voyeurism
  24. Florida Communication Fraud Act (Scheme to Defraud or Organized Fraud, as defined in s.817.034, F.S.)
  25. Offenses by Public Officers and Employees
  26. Computer pornography
  27. Trafficking in controlled substances
  28. A violation of any offense qualify for registration as a sexual predator under s.775.21 or for registration as a sexual offender under s.943.0435.
Additionally, if you have ever been convicted of any offense, including a misdemeanor like a DUI, you are NOT eligible to have any offense sealed or expunged. I can seal/expunge all of my cases because they all got dropped. The answer is NEGATIVE. Like the Highlander, there may be only one. Meaning, a person is only eligible to have one case sealed and/or expunged in their lifetime. There is an exception if you had multiple cases that are directly related to each other. If I get a Certificate of Eligibility, I'm guaranteed to get my case sealed/expunged... NOPE. The Office of the State Attorney may issue an objection to certain petitions, especially if the person or case is directly related to issues of public safety or policy. For instance, the public may have an interest in knowing that someone employed in public safety had a serious drug or alcohol related offense in their past. If I win at trial, I can get my case expunged right away. Unfortunately not. If you win at trial OR if you plea to a case that qualifies and you received a withhold, you have to petition to have your case sealed. You then have to wait 10 years after it has been sealed before you will qualify to have the case expunged. If my case gets expunged, I don't have to tell anyone about it.. ever. Almost, but not quite. While you can legally deny that you had a case or were arrested, there are some exceptions. You have to disclose your record, even if it is sealed/ expunged, in the following instances:
  1. Applying for a job with a criminal justice agency
  2. If you are a defendant in a criminal prosecution (your lawyer needs to know)
  3. If you are trying to seal/expunge ANOTHER arrest record (have to disclose other cases)
  4. Applying for admission to the Florida Bar
  5. Seeking employment, licensing, or to contract with DCF (Dept. of Children and Family Services), the Agency for Health Care Administration, the Agency for Persons with Disabilities, DJJ (Department of Juvenile Justice) OR to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s.110.1127(3), s.393.063, s.394.4572(1), s.397.451, s.402.302(3), s.402.313(3), s.409.175(2)(i), s.415.102(4), chapter 916, s. 985.644, chapter 400, or chapter 429;
  6. Seeking employment or licensing by the Dept. of Education, district school board, university laboratory school, charter school, private or parochial school, or any local governmental entity that licenses child care facilities
  7. Seeking authorization from a Florida seaport identified in s.311.09 F.S. for employment within or access to one or more of such seaports pursuant to s.311.12 F.S. or s.311.125 F.S.
  8. Attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is the subject to a criminal history background check under state or federal law

What steps do you have to take to get the case sealed/expunged?

  1. Apply for and Obtain a Certificate of Eligibility from FDLE
  2. Complete an Affidavit explaining how you qualify to have your case sealed/expunged
  3. Petition the Court to Seal/Expunge your case (and send along a "Conforming"Order for the Judge to Sign)
Of course, there are a few more mini steps along the way and a petition/application can be denied if the documents are wrong and/or proper procedures aren't followed. If you are willing to put the time in, you can figure it out on your own. You can find the application for FDLE Online and some Clerks of Court have Petition and Order packets available at their office, you can also check out the Florida Bar website for the rules and coordinating Forms. There are fees and costs associated with the process, from the FDLE application fee to the filing fee with the Clerk of Courts. The most common mistake people make is not serving all of the proper agencies when filing their petition documents with the court. Keep in mind that this process can take several months to complete, so be patient and know it won't happen overnight. In the long run, getting that old haunt off your record can make a huge impact on your life. To take the daunting out of the process and let us handle it for you. Contact Colbert Law at (407) 705-3220 - we have helped many clients get their cases legally erased from their records and offer payment plans for that legal service.