West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          The Florida Department of Law Enforcement website contains several frequently-asked questions and answers about sealing criminal history records in Florida.  This article discusses 11 of those questions.

          1. How do I get a criminal history record sealed or expunged?

          Florida Statutes sections 943.0585 and 943.059 set forth the criteria that must be met in order to be eligible to have a criminal history record sealed or expunged. In addition, these statutes also state that in order to have a criminal history record sealed or expunged in Florida, an individual must first make application to the FDLE for a Certificate of Eligibility. Please note that the issuance of a Certificate of Eligibility does not mean that your criminal history record will be ordered sealed or expunged. It merely indicates that you are statutorily eligible for the type of relief that is being requested.

          2. Why do I have a criminal history record when the charges against me were dropped?

          The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Florida Statutes section 943.053(3) which provides for public access to criminal history records. The term "criminal history information" is defined, tracking the federal definition, at Florida Statutes section 943.045(4). A criminal history record is created when a person is arrested and fingerprinted and includes the disposition of that arrest whether it be a conviction, acquittal, dismissal of charges before trial, or other disposition.

          3. Should I obtain a copy of my criminal history record prior to applying for a Certificate of Eligibility?

          Under Florida and federal law, an individual has the right to request a copy of his or her criminal history record for purposes of review to ensure that it is both accurate and complete. This process is known as a Personal Review. The requestor may examine the record obtained through Personal Review for accuracy and challenge any information contained within the criminal history record that the requester believes is inaccurate or incomplete. No charge is assessed by FDLE for this service. See Florida Statutes section 943.056. A Personal Review allows an individual to determine which, if any, date(s) of arrest the applicant will be eligible to have sealed or expunged. However, obtaining a personal review is not a prerequisite to applying for a certificate of eligibility to seal or expunge a criminal history record.

          4. What is the difference between having a criminal history record sealed versus having it expunged?

          When a criminal history record is sealed, the public will not have access to it. However, certain governmental or related entities, primarily those listed in Florida Statutes section 943.059(4)(a), have access to sealed-record information in its entirety. 

          When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged but would not have access to the record itself without a court order. All they would receive is a statement indicating that "Criminal Information has been Expunged from this Record".

          5. When is my criminal history record sealed or expunged?

          Once an order has been issued by the court of competent jurisdiction to seal or expunge your criminal history record and a certified copy of this order has been received by the FDLE, it will be complied with in accordance with state statutes.

          6. How many dates of arrest can I have sealed or expunged?

          The eligibility criteria for an applicant to have a record sealed or expunged include the requirement that the applicant be able to state under oath that he or she has never previously had a record sealed or expunged in Florida or in another jurisdiction. This means, in effect, that a person may only seal or expunge one arrest record in one proceeding. More than one record may be sealed or expunged in the same proceeding if the court, in its sole discretion, finds the arrests to be directly related.  A record that is initially ineligible for expunction (for example, where adjudication is withheld) may become eligible after it has been sealed for 10 years. However, a person may not seal or expunge one arrest record and then later, in a different proceeding, ask to have a different arrest record sealed or expunged. An expunction or sealing which occurs automatically or by operation of law, without any action on the part of the applicant, is not considered a prior expunction or sealing for this purpose. Florida Statutes section 943.0582 provides that a juvenile diversion expunction does not prevent an applicant from seeking a judicial expunction or sealing under Florida Statutes sections 943.0585 or 943.059.

          7. What charges may not be sealed?

          A list of charges that may not be sealed when adjudication is withheld is contained in Florida Statutes section 943.059. (The same listing is found in section 943.0585 because the specified offenses may not be expunged either.) In addition, if a person has been adjudicated guilty of any criminal offense in any jurisdiction (or adjudicated delinquent as a juvenile for any felony or for certain specified misdemeanors), whether or not related to the charge(s) that the person is applying for, the record is ineligible for sealing, and the application will be denied.

          8. What charges may be expunged?

          The same eligibility requirements which apply to sealing also apply to expunction, with certain additional requirements. Any charge, which resulted in a withholding of adjudication or in an acquittal (that is, a not guilty verdict) after trial, may not be expunged unless and until it has first been sealed for at least 10 years. See Florida statutes section 943.0585(2)(h).  A charge which was dismissed before trial (for example, no information, nolle prosequi, no bill, etc.) may be expunged immediately provided all charges related to the arrest were so disposed of and the record is otherwise eligible.

          9. Can I appeal the denial of my application for a Certificate of Eligibility to seal or expunge my criminal history record?

          If you believe that the denial of your application for Certification of Eligibility is in error, you may ask that the denial be reviewed. If the denial is based on information in your criminal history record that is believed to be in error or incomplete, the procedure for reviewing and correcting that record is given in Florida Administrative Code Rule 11C-8.001. If you agree that the criminal history information is correct, but believe that the law has been incorrectly applied or interpreted in your case, you may appeal the decision of the FDLE. The appeal of a denial is to be handled within the court of competent jurisdiction.

          10. If I receive a full pardon can I have my criminal history record sealed or expunged?

          Unless the pardon indicates on its face that it entitles the applicant to seal or expunge his or her criminal history record, the granting of a full pardon does not remove any condition of ineligibility for sealing or expunging a criminal history record imposed by the disposition of the pardoned offense. See Randall v. Florida Department of Law Enforcement, 791 So. 2d 1238 (Fla. 1st DCA 2001).

          11. If I receive clemency, will my record be automatically expunged?

          No. Neither a full pardon nor any other type of clemency will automatically expunge or facilitate the expungement of your criminal record.

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          The Florida Department of Law Enforcement website answers the question regarding where registered sex offenders and sexual predators may live in Florida as follows:

          "In very general terms, barring any exceptions as so outlined in Florida Registration Statute, if a subject is a registered offender, who has a released status (meaning he/she is no longer serving any sanctions for the crime), and his/her offense date was committed before 10/1/2004, there is no Florida Statutory restriction on where he/she can live based upon his/her designation as an offender/predator.

          However, Florida Statute 794.065, provides that certain individuals who have been convicted of a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0145, with an offense date on or after October 1, 2004, where the victim of the offense was less than 16 years of age, cannot reside within 1,000 feet of any school, day care center, park, or playground. Please see the complete statutory text for F.S. 794.065 for further information.

          Furthermore, there may also be municipal and/or county ordinances in your area regarding sex offenders/predators. Contact the appropriate entities in your local area (i.e. your local Sheriff's Office and/or Police Department) to obtain this information. For contact information for each of the Sheriff's Offices and Police Departments click on Links from the registry website.

          Finally, if you are a sexual offender/predator who is still serving sanctions imposed, such as probation, parole, or community control under the [Florida] Department of Corrections (DC), you are required to follow the Conditions of Probation ordered by the judge in accordance with Florida statute. Restrictions are normally listed in these conditions. You should contact your probation officer directly for more information."

          Some city and county ordinances in Florida make it extremely difficult--if not impossible--for sexual offenders to live lawfully in their communities.  Take Miami for example.  Last year, CNN reported how some sex offenders in that city have resorted to living under a bridge in order to comply with Miami's sex offender registration laws:

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          Florida statute section 933.09--sometimes called Florida's version of the so-called knock-and-announce rule--states that a police officer "may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute [a] warrant, if after due notice of the officer's authority and purpose he or she is refused admittance to said house or access to anything therein."  But what if the police do not give you "due notice?"   What if they do not first knock on your door and announce their presence before breaking your door down and entering your home with guns drawn?

          Before the United States Supreme Court's decision in Hudson v. Michigan in 2006, the law had been that if the police entered a home with a warrant but without first knocking and announcing their presence any evidence seized by the police following their illegal entry--evidence such as drugs or guns--would be thrown out of court.  The result in many instances was that the case against the owner of the home had to be dropped by the prosecution.

          But then came Hudson.  In that case, the Court correctly observed that the knock-and-announce rule has historically protected such interests as:

          1.  The physical safety of a home's occupants because an unannounced entry by the police may provoke violence from a surprised resident;

          2.  Property interest because the owner of a home would probably open his front door voluntarily if the police first announced their presence rather than allowing the police to break it down; and

          3.  The privacy and dignity of a home that is offended if the police enter it unexpectedly and forcefully.

          But then the Hudson Court fundamentally changed existing law by ruling that judges are not required to throw out incriminating evidence whenever the police violate the knock-and-announce rule.  That is because the police can be deterred from breaking that rule by other means such as civil-rights lawsuits and the increasing professionalism of police forces which includes a new emphasis on internal police discipline.

          Internal police discipline?  All that one has to do in order to see numerous modern-day examples of police officers who lack internal discipline is go to YouTube and type in the query "police brutality."  Perhaps if the members of our Supreme Court had done just that prior to deciding Hudson, the outcome of that particular case would have been far different.

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          During the last few years, I have represented several clients in both State and Federal Court who have been charged with growing marijuana plants in their homes.  Therefore, I was particularly interested to learn that on July 1, 2008 a new law went into effect in Florida called the Marijuana Grow House Eradication Act.  The following is a news article about that Act:

          TALLAHASSEE, Fla. -- Attorney General Bill McCollum announced Tuesday that the Marijuana Grow House Eradication Act has been signed into law, giving Florida’s prosecutors and law enforcement essential tools to combat for-profit growers of marijuana.

The New Law

          The new law, sponsored by Senator Steve Oelrich (R-Gainesville) and Representative Nick Thompson (R-Ft. Myers), passed as House Bill 173 during the 2008 Legislative Session and was signed into law by Governor Charlie Crist Tuesday. The bill was developed because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations.

          “Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.”

          The new law makes it a second-degree felony to grow 25 or more plants, targeting for-profit growers who exploit Florida’s previous threshold of 300 plants. The law will also make it a third-degree felony to own a house for the purpose of cultivating, packaging and distributing marijuana and a first-degree felony to grow 25 or more plants in a home with children present.

          “Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said Sen. Oelrich. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations.”

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          On July 25, 2008, the Alaska Supreme Court declared Alaska's Sex Offender Registration Act unconstitutional.  In a blog that I posted on this website on June 5, 2008 entitled "Sex Offender Registration:  Is It Punishment?," I observed that "[i]n the case of Smith v. Doe, the [United States Supreme] Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a 'civil, nonpunitive regime.' " I concluded that posting by opining that although courts may call sex offender statutes nonpunitive, they certainly seem punitive to me (and apparently to many others based upon the response that I have had to that posting).

          It appears that the Alaska Supreme Court shares my view because it recently declared Alaska's Sex Offender Registration Act ("ASORA") unconstitutional in the case of John Doe v. State of Alaska.  In John Doe, Alaska's High Court stated in relevant part that:

          We first ask “[w]hether the sanction involves an affirmative disability or
restraint.”  The state argues that ASORA involves neither because it imposes no
physical restraint, has obligations less harsh than occupational debarment — which the
Supreme Court has held to be non-punitive — and, in the Supreme Court’s words,
“restrains [no] activities sex offenders may pursue but leaves them free to change jobs
or residences.”

          But even though the statute imposes no physical restraints, we agree with Justice Stevens’s dissenting comments in Smith that ASORA “impose[s] significant affirmative obligations and a severe stigma on every person to whom [it] appl[ies].”  First, ASORA compels affirmative post-discharge conduct (mandating registration, reregistration, disclosure of public and private information, and updating of that information) under threat of prosecution.  The duties are significant and intrusive, because they compel offenders to contact law enforcement agencies and disclose information, some of which is otherwise private, most of it for public dissemination.
Furthermore, the time periods associated with ASORA are intrusive.  Sex offenders convicted of an aggravated sex offense or two or more sex offenses must re-register quarterly for the rest of their lives; all other offenders must re-register annually for fifteen years.  All sex offenders who change residences must notify the state trooper office or municipal police department closest to their new residences within one working day.  As we stated in Doe v. State, Department of Public Safety (Doe A), “ASORA thus treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.”

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