11 Frequently-Asked Questions About Sealing Your Record in Florida
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.
Pleasee help. My boyfriend got a DUI in los Angeles about 3 years ago. He went to classes and we thought it was dismissed, but apparently it is not. Then he got a felony possession charge in Florida about a year ago. He went to rehab., and was told his case could be expunged. However, because of the DUI he was denied. We are told there might still be a way to seal the info. He really wants a job at a hotel and they do backround checks. Anyone have any ideas? or know of any lawyers that do this type of service? Thanks in advance
Attorney Chapman's response:
If adjudication was withheld on the DUI, then your boyfriend should be eligible to get his Florida case sealed. However, if he was adjudicated guilty of the DUI, then he is not eligible.
Dear Mr Chapman:
I had a felony record sealed over 23 years ago in florida, the case was not prosecuted, and it went to pre-trial intervention, and then successfully sealed and expunged.
My question is how does one answer the questions on various employment applications which ask if one has ever been "arrested" for a felony, even if the arrest did not lead to conviction, or was dismissed.
I understand that the nature of the employer may be significant (private vs. government), where in this case the questions are being asked in connection with an application to join the Army.
I've heard that if the agency is a law enforcement agency, that the question should be answered positively, because these agencies have "access" to the records? (Which I thought were sealed, or where any disclosure would be against the law?)
Note, the generalized question also takes the form in informal questionnaires, and ask things like "have you had any contact with law enforcement?"
In my opinion, I feel I have a right and duty to maintain the seal/expunge order, and would expect that my privacy and the confidentiality of the records stay that way. But in practice, this appears to not be the case, and in fact, I live with the stigma very much as if the record was never sealed in the first place.
In fact, on one occassion, an investigator presented a printout where the exact date and nature of charge of the felony was listed. I may simply have been a residual record, perhaps an arrest logsheet, or something, where the actual arrest affidavit and/or court documents have not been seen/or shown to me to date. But, still the arrest record, generated by I don't know, permits the employer who obtained it, to then cross referrence it, and begin further questions upon me about a confidential, sealed court record.
So, again, how does one answer the questions which in my opinion seek to circumvent the sealed nature of the file, by simply asking me about it.
However, if I do answer the questions in the negative, does it now create the situation where I may have not answered the question truthfully?
Even though legally, I may be entitled to say No, to any felony arrests, based on the court order sealing them, but its not clear to me how this works in practice.
What are perhaps some recourses I have if I am not hired, or loose a job based on information derived from a sealed court record?
My rationaly is that I am obeying the court order sealing the record.
I look forward to your remarks.
I actually am preparing to respond to questions tomorrow, so your prompt insight would be deeply appreciated.
Attorney Chapman's response:
Florida statute section 943.0585(4) states in relevant part that:
(a) The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law, . . . may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record:
1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under this section or s. 943.059;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the 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 . . . .
6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or
7. Is seeking authorization from a seaport listed in s. 311.09 for employment within or access to one or more of such seaports pursuant to s. 311.12.
(b) Subject to the exceptions in paragraph (a), a person who has been granted an expunction under this section, . . . may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge an expunged criminal history record."
First Mr. Chapman let me thank you for your voluntary advice column online. As a Registered Nurse trainee with an expunged criminal arrest in Florida (adjudication withheld), I understand that the Florida Agency for Health Care Administration will see the statement "Criminial information has been expunged from this record."
Will a private Florida hospital also see the statement?
If so, may I lawfully deny contact with law enforcement / arrest on a hospital employment application?
If I relocate to the State of North Carolina, will the statement of expungement be released to employers there?
Attorney Chapman's response:
1. Because a private Florida hospital is not one of the entities listed in Florida statute section 943.0585(4), the Florida Department of Law Enforcment will not disclose information about your expunged criminal-history record to it. Neither do you have to disclose it to a private Florida hospital.
2. I do not know the answer to your question about North Carolina because I do not practice law in that state.
Thank You again Mr. Chapman. Your response on July 29 concerning a Registered Nurse trainee with an expunged criminal arrest in Florida states that the Florida Department of Law Enforcment will not disclose information about a expunged criminal-history record to a private healthcare employer, i.e. hospital. In your opinion can such employers find other means to confirm my arrest record outside of a query to the FDLE ?
Attorney Chapman's response:
They should not be able to do so. But if a potential employer were to find out and you found out the source of their information, you can contact FDLE which will, in turn, contact that source and advise them that your record has been expunged and that they should remove your criminal-history information from their database.