THE LAW OFFICE OF
WILLIAM MALLORY KENT - Click Here for Home Page
1932 PERRY PLACE
JACKSONVILLE, FLORIDA 32207
904-398-8000
kent@williamkent.com
CRIMINAL RECORD SEALING
EXPUNGING OF RECORDS
Under Florida law many types of criminal arrest records and court dispositions can be sealed from public disclosure.
Once a record is sealed, subject to certain limited exceptions, the person who was the subject of the arrest may lawfully deny the prior arrest, if asked about prior arrests or convictions on an employment application, school enrollment application or the like.
Once sealed, subject to certain very limited exceptions, the arrest record is no longer a public record and will not be disclosed if a background criminal record check is done by a potential employer.
To qualify for sealing, a person must not have ever had any prior criminal record sealed, and may only seal an arrest record that did not result in a criminal conviction.
In Florida, first arrests in particular, and sometimes repeat arrests, do not necessarily result in a conviction, but instead the court may "withhold adjudication of guilt," sometimes simply referred to as a "withhold," or "withhold of adjudication."
If the court has withheld adjudication of guilt, or if the charges were dropped, then the record can be sealed.1
Prior to petitioning the court to seal the record, a certificate of eligibility from the Florida Department of Law Enforcement ("FDLE") must be obtained. FDLE charges $75 for this certificate. You must first obtain and submit to FDLE a set of fingerprints. A certified copy of the disposition order of the case to be sealed must also be submitted to FDLE. We will take care of this for you if you retain us to seal your record.
Thereafter, once the FDLE certificate is issued, a petition for sealing the record is presented to the appropriate court and state attorney's office together with an appropriate statutory affidavit from the petitioner. Although discretionary with the court, such petitions are usually granted.
The entire process can take 60 days or more. At some times the FDLE becomes backlogged and the process can drag on for months. We have no control over that. After the order of sealing is granted, certified copies must be purchased from the clerk of the court for distribution to the relevant law enforcement agencies who will be affected by the order.
Our office can handle this process for you from start to finish in any court in the State of Florida. Our fee is $750, plus the above described out of pocket costs, $75 for the FDLE certificate, and approximately $40 for the clerk's costs for certified copies of the order.
We accept most major credit cards. For credit card payments we need the name as it appears on the credit card, the type of card (VISA, Amex, etc.), the expiration date of the card and the billing address including zip code for the card.
Please contact our office at 904-398-8000 or email Mr. Kent at kent@williamkent.com if you are interested in having your record sealed. There is no charge for a brief consultation for more information about sealing. The applicable Florida Statutes are set forth below for your information.
FREQUENTLY ASKED QUESTIONS:
How do I have a criminal history record sealed or expunged?
Florida Statutes, s.943.0585 and s.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 within the State of 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.
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Where can I find the application for Certification of Eligibility?
The FDLE provides applications for Certification of Eligibility to the Clerk of Courts in all sixty-seven (67) counties throughout the State of Florida. These application packages may be obtained from the Clerk of the Courts within each county courthouse. Please contact your local county Clerk's office for additional information. If you reside outside the State of Florida, you may request that an application package be mailed to you.
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Why do I have a criminal history record when the charges against me were dropped/dismissed?
The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Section 943.053(3), Florida Statutes, which provides for public access to criminal history records. The term "criminal history information" is defined, tracking the federal definition, at Section 943.045(4), Florida Statutes. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.
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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 to challenge any information contained within the criminal history record that the record subject believes is inaccurate or incomplete. No charge is assessed by FDLE for this service. See s.943.056, Florida Statutes. A Personal Review allows an individual to determine which, if any, date(s) of arrest he or she 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. The fee will not be refunded if the application is denied, even if the applicant asserts that he or she would not have applied had he or she been aware that the application would be denied.
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What is the difference between having a criminal history record sealed vs. expunged?
When a criminal history record is sealed, the public will not have access to it. Certain governmental or related entities, primarily those listed in s. 943.059(4)(a), Florida Statutes, 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. Such entities would receive only a caveat statement indicating that "Criminal Information has been Expunged from this Record".
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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. If the order is not in compliance with applicable law, however, it will be returned to the State Attorney to be set aside by the court. You or your attorney will be given notice of this action, if this occurs.
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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 attest 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 (e.g., 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 and 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 record subject, is not considered a prior expunction or sealing for this purpose. By law, s. 943.0582(8), Florida Statutes, a juvenile diversion expunge does not prevent the record subject from seeking a judicial expunction or sealing under s. 943.0585 or s. 943.059, Florida Statutes.
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What charges may not be sealed when adjudication is withheld?
A list of charges that may not be sealed when adjudication is withheld is included with the application package, and is also enumerated in s. 943.059, Florida Statutes. (The same listing is found in s. 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 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 or expunction and the application will be denied.
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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 (not guilty verdict) after trial, may not be expunged unless and until it has first been sealed for at least 10 years. See s. 943.0585(2)(h), Florida Statutes. A charge which was dismissed before trial (e.g., 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.
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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 Rule 11C-8.001, Florida Administrative Code. 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 should file a motion or petition with a court of competent jurisdiction and send a copy to:
Florida Department of Law
Enforcement
2331 Phillips Road
Tallahassee, Fl 32302
Attention: Office of General Council.
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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 record subject 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 R.V.L.V.
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Does the sealing or expunction of a juvenile criminal history record differ from the sealing or expunction of an adult criminal history record?
Juvenile criminal history records may be sealed or expunged in the same manner as adult criminal history records, by applying for a certificate of eligibility and, if eligible, petitioning a court for sealing or expunction. However, the following considerations are relevant to the decision whether to seek the judicial sealing or expunction of a juvenile criminal history record. Prior to October 1, 1994 (for felonies), and July 1, 1996 (for specified misdemeanors), juvenile arrest records were not maintained by FDLE in the criminal history record system and would not be available to the general public unless the juvenile were treated as an adult. Juvenile records are subject to an abbreviated retention schedule, if certain qualifications are met, which results in the automatic expunction of the record after a specified period, under s. 943.0515, Florida Statutes. Juvenile defendants who successfully complete a qualified diversion program, as set out in s. 943.0582, Florida Statutes, may be eligible for expunction of their record as the term is defined therein. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedure, which are similar to those for adults, are found in s. 943.059 and s. 943.0585, Florida Statutes. The treatment of juvenile criminal history records maintained by other agencies and by the courts is a matter on which the applicant may wish to seek legal advise.
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If I have a criminal history record sealed or expunged in another state or jurisdiction, am I still eligible to have a criminal history record sealed or expunged within the State of Florida?
If the other record were sealed or expunged by operation of law (administratively or automatically, without intervention or action by the subject of the record), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged.
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If I had a criminal history record sealed or expunged, and then had it vacated, could I apply to have a new date of arrest sealed or expunged?
As s. 943.0585(2)(f) and s. 943.059(2)(e), Florida Statutes require that an applicant have never secured a prior sealing or expunction of a criminal history record under current or former law, having an earlier seal or expunge order vacated does not remove this disqualification.
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Will FDLE notify the agencies involved with my case that the record has been sealed or expunged?
If the record is eligible and the court grants relief, FDLE will comply with the certified court order and seal or expunge the appropriate criminal history record. Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency or agencies involved with your case. The notification letter is to inform the agencies that FDLE has received and has complied with the order in accordance with the seal or expunge statutes.
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What type of background check is conducted by FDLE to determine my eligibility to have a criminal history record sealed or expunged?
FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV). These databases are searched to determine the eligibility of an individual to have a criminal history record sealed or expunged.
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Why is the Florida Department of Highway Safety and Motor Vehicles checked to determine my eligibility to have my criminal history record sealed or expunged?
A criminal offense such as DUI, Driving While License Suspended/canceled/revoked, or reckless driving may appear in the DHSMV database even though it may not be entered in the criminal history record system maintained by FDLE. Although non-criminal traffic offenses (such as careless driving) have no effect on eligibility to seal or expunge a criminal history record, an adjudication of guilty for any criminal offense renders the record ineligible for either form of relief.
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Who should receive a copy of the order to seal or expunge a criminal history record?
If the record is eligible and the court grants relief, the Clerk of the Court by statute is responsible 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.
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What do I do with my Certificate of Eligibility?
Once FDLE has issued the Certificate of Eligibility to seal or expunge a criminal history record, the next step is to file a petition for relief, along with the Certificate of Eligibility and the required affidavit, in the court in the county of the arrest. The issuance of the Certificate of Eligibility is not the final step in the Sealing/Expunction process, nor does it guarantee that a criminal history record will be sealed or expunged. The final decision to Seal/Expunge your criminal history is placed by law in the sound discretion of the court.
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What information is required to complete the application for Certification of Eligibility?
In order to obtain a Certificate of Eligibility to petition the court to seal or expunge a criminal history record, the following requirements must be met pursuant to s.943.0585(2) and s.943.059(2), Florida Statutes:
A. Section A
of the application must be completed and signed in the presence of a notary
public.
(SSN is optional
B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant's name, race, sex, date of birth, social security number, and signature, prior to submission to FDLE.
C. The applicant must provide a certified disposition of the case that he/she is applying to have sealed or expunged.
D. A NONREFUNDABLE money order or cashier's check for $75.00 made payable to the FDLE must accompany the application.
E. If you are requesting an expunction of a criminal history record, the State Attorney or Statewide Prosecutor with jurisdiction over your case must complete Section B of the application. (If not completed, the application will be processed as requesting a sealing of your criminal history record.)
*Special Note: All of the items listed above are required at the time that the application is submitted. If an item is missing or the application or fingerprint card is not completed, the application will be returned unprocessed.
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Florida also makes provision for restoration
of a person's civil rights after a felony conviction. For
information on restoration of civil rights in Florida, please see the ACLU's
webpage:
http://63.135.96.161/issues/voting_rights/applying_for_rights_restoration.cfm]
The Law Office of
William Mallory Kent
1932 Perry Place
Jacksonville, Florida 32207
904-398-8000
Monday-Friday 8:30 - 5:00
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The Applicable Florida Statutes
943.059. Court ordered sealing of criminal history records
The courts of this state shall continue to have jurisdiction
over their own procedures, including the maintenance, sealing, and correction of
judicial records containing criminal history information to the extent such
procedures are not inconsistent with the conditions, responsibilities, and
duties established by this section. Any court of competent jurisdiction may
order a criminal justice agency to seal the criminal history record of a minor
or an adult who complies with the requirements of this section. The court shall
not order a criminal justice agency to seal a criminal history record until the
person seeking to seal a criminal history record has applied for and received a
certificate of eligibility for sealing pursuant to subsection (2). A criminal
history record that relates to a violation of s.393.135,
s. 394.4593, [ s.
787.025,[Luring or enticing a child] chapter 794, [procuring a person under 18 for
prostitution] s.800.04, [lewd and lascivious assault] s.817.034, [communications fraud]s.825.1025, [lewd or lascivious assault upon or in
presence of elderly] s.827.071, [child sex performance] chapter 839,
[auctioneering offenses] s.847.0133,[obscene materials to minors] s.847.0135, [computer pornography] s.
847.0145, [selling or buying of minors] s.893.135, [drug trafficking], s.
916.1075, [ or a violation
enumerated in s. 907.041
[that is, 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;
12. Robbery;
13. Carjacking;
14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
15. 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 person in familial or custodial authority;
16. Burglary of a dwelling;
17. Stalking and aggravated stalking;
18. Act of domestic violence as defined in s. 741.28;
19. Home invasion robbery;
20. Act of terrorism as defined in s. 775.30; and
21. Attempting or conspiring to commit any such crime.]
may not be sealed, without regard to whether
adjudication was withheld, if the defendant was found guilty of or pled guilty
or nolo contendere to the offense, or if the defendant, as a minor, was found to
have committed or pled guilty or nolo contendere to committing the offense as a
delinquent act. The court may only order sealing of a criminal history record
pertaining to one arrest or one incident of alleged criminal activity, except as
provided in this section. The court may, at its sole discretion, order the
sealing of a criminal history record pertaining to more than one arrest if the
additional arrests directly relate to the original arrest. If the court intends
to order the sealing of records pertaining to such additional arrests, such
intent must be specified in the order. A criminal justice agency may not seal
any record pertaining to such additional arrests if the order to seal does not
articulate the intention of the court to seal records pertaining to more than
one arrest. This section does not prevent the court from ordering the sealing of
only a portion of a criminal history record pertaining to one arrest or one
incident of alleged criminal activity. Notwithstanding any law to the contrary,
a criminal justice agency may comply with laws, court orders, and official
requests of other jurisdictions relating to sealing, correction, or confidential
handling of criminal history records or information derived therefrom. This
section does not confer any right to the sealing
of any criminal history record, and any request for sealing a criminal history
record may be denied at the sole discretion of the court.
(1) Petition to seal a
criminal history record.__Each petition to a court to
seal a criminal history record is complete only when accompanied by:
(a) A certificate of eligibility for sealing issued by the department pursuant to subsection (2).
(b) The petitioner's sworn statement attesting that the petitioner:
1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing a felony or a misdemeanor specified in s. 943.051(3)(b).
2. Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
3. Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, former s. 943.058, or from any jurisdiction outside the state.
4. Is eligible for such a sealing to the best of his or her knowledge or belief and does not have any other petition to seal or any petition to expunge pending before any court.
Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Certificate of eligibility for sealing.__Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the department for a certificate of eligibility for sealing. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for sealing. The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:
(a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.
(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
(c) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing a felony or a misdemeanor specified in s. 943.051(3)(b).
(d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
(e) Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058.
(f) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to seal pertains.
(3) Processing of a petition or order to seal.__
(a) In judicial proceedings under this section, a copy of the completed petition to seal shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to seal.
(b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and to the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to seal to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
(c) For an order to seal entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of any order to seal which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged. Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to seal. The department shall seal the record until such time as the order is voided by the court.
(d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to seal entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to seal when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or when such order does not comply with the requirements of this section.
(e) An order sealing a criminal history record pursuant to this section does not require that such record be surrendered to the court, and such record shall continue to be maintained by the department and other criminal justice agencies.
(4) Effect of criminal history record sealing.__A criminal history record of a minor or an adult which is ordered sealed by a court of competent jurisdiction pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject's attorney, to criminal justice agencies for their respective criminal justice purposes, or to those entities set forth in subparagraphs (a)1., 4., 5., and 6. for their respective licensing and employment purposes.
(a) The subject of a criminal history record sealed under this
section or under other provisions of law, including former s.
893.14, former s.
901.33, and former s.
943.058, may lawfully deny or fail to acknowledge the
arrests covered by the sealed 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. 943.0585;
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 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 as provided in s. 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 415.103, s. 985.407, s. 916.106(10) and (13), s. 985.407, or chapter 400; or
6. Is seeking to be employed or licensed by the Office of Teacher Education, Certification, Staff Development, and Professional Practices of the Department of Education, any district school board, or any local governmental entity which licenses child care facilities.
(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 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 a sealed criminal history record.
(c) Information relating to the existence of a sealed criminal
record provided in accordance with the provisions of paragraph (a) is
confidential and exempt from the provisions of s.
119.07(1) and s.
24(a), Art. I of the State Constitution, except that
the department shall disclose the sealed criminal history record to the entities
set forth in subparagraphs (a)1., 4., 5., and 6. for their respective licensing
and employment purposes. It is unlawful for any employee of an entity set forth
in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., or subparagraph
(a)6. to disclose information relating to the existence of a sealed criminal
history record of a person seeking employment or licensure with such entity or
contractor, except to the person to whom the criminal history record relates or
to persons having direct responsibility for employment or licensure decisions.
Any person who violates the provisions of this paragraph commits a misdemeanor
of the first degree, punishable as provided
in s.
775.082 or s.
775.083.
(5) Statutory references.__Any
reference to any other chapter, section, or subdivision of the Florida Statutes
in this section constitutes a general reference under the doctrine of
incorporation by reference.
907.041. Pretrial detention and release
(1) Legislative intent.__It is the policy of this state that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest. However, persons found to meet specified criteria shall be released under certain conditions until proceedings are concluded and adjudication has been determined. The Legislature finds that this policy of pretrial detention and release will assure the detention of those persons posing a threat to society while reducing the costs for incarceration by releasing, until trial, those persons not considered a danger to the community who meet certain criteria. It is the intent of the Legislature that the primary consideration be the protection of the community from risk of physical harm to persons.
(2) Rules of procedure.__Procedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court.
(3) Release on nonmonetary conditions.__
(a) It is the intent of the Legislature to create a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release unless such person is charged with a dangerous crime as defined in subsection (4). Such person shall be released on monetary conditions if it is determined that such monetary conditions are necessary to assure the presence of the person at trial or at other proceedings, to protect the community from risk of physical harm to persons, to assure the presence of the accused at trial, or to assure the integrity of the judicial process.
(b) No person shall be released on nonmonetary conditions under the supervision of a pretrial release service, unless the service certifies to the court that it has investigated or otherwise verified:
1. The circumstances of the accused's family, employment, financial resources, character, mental condition, and length of residence in the community;
2. The accused's record of convictions, of appearances at court proceedings, of flight to avoid prosecution, or of failure to appear at court proceedings; and
3. Other facts necessary to assist the court in its determination of the indigency of the accused and whether she or he should be released under the supervision of the service.
(4) Pretrial detention.__
(a) As used in this subsection, "dangerous crime" means any of the following:
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;
12. Robbery;
13. Carjacking;
14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
15. 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 person in familial or custodial authority;
16. Burglary of a dwelling;
17. Stalking and aggravated stalking;
18. Act of domestic violence as defined in s. 741.28;
19. Home invasion robbery;
20. Act of terrorism as defined in s. 775.30; and
21. Attempting or conspiring to commit any such crime.
943.051. Criminal justice information; collection and storage; fingerprinting
(1) The Criminal Justice Information Program, acting as the state's central criminal justice information repository, shall:
(a) Collect, process, store, maintain, and disseminate criminal justice information and records necessary to the operation of the criminal justice information system of the department.
(b) Develop systems that inform one criminal justice agency of the criminal justice information held or maintained by other criminal justice agencies.
(2) Each adult person charged with or convicted of a felony,
misdemeanor, or violation of a comparable ordinance by a state, county,
municipal, or other law enforcement agency shall be fingerprinted, and such
fingerprints shall be submitted to the department in the manner prescribed by
rule. Exceptions to this requirement for specified misdemeanors or comparable
ordinance violations may be made by the department by rule.
(3)(a) A minor who is charged with or found to have committed an offense
that would be a felony if committed by an adult shall be fingerprinted and the
fingerprints shall be submitted to the department in the manner prescribed by
rule.
(b) A minor who is charged with or found to have committed the following offenses shall be fingerprinted and the fingerprints shall be submitted to the department:
1. Assault, as defined in s. 784.011.
2. Battery, as defined in s. 784.03.
3. Carrying a concealed weapon, as defined in s. 790.01(1).
4. Unlawful use of destructive devices or bombs, as defined in s. 790.1615(1).
5. Negligent treatment of children, as defined in s. 827.05.
6. Assault or battery on a law enforcement officer, a firefighter, or other specified officers, as defined in s. 784.07(2)(a) and (b).
7. Open carrying of a weapon, as defined in s. 790.053.
8. Exposure of sexual organs, as defined in s. 800.03.
9. Unlawful possession of a firearm, as defined in s. 790.22(5).
10. Petit theft, as defined in s. 812.014(3).
11. Cruelty to animals, as defined in s. 828.12(1).
12. Arson, as defined in s. 806.031(1).
13. Unlawful possession or discharge of a weapon or firearm at a school_ sponsored event or on school property as defined in s. 790.115.
(4) Fingerprints shall be used as the basis for criminal history records.
943.0585. Court_ordered expunction of criminal history records
The courts of this state have jurisdiction over their own procedures, including the maintenance, expunction, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions, responsibilities, and duties established by this section. Any court of competent jurisdiction may order a criminal justice agency to expunge the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2). A criminal history record that relates to a violation of s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, or a violation enumerated in s. 907.041 may not be expunged, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act. The court may only order expunction of a criminal history record pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion, order the expunction of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the expunction of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not expunge any record pertaining to such additional arrests if the order to expunge does not articulate the intention of the court to expunge a record pertaining to more than one arrest. This section does not prevent the court from ordering the expunction of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with laws, court orders, and official requests of other jurisdictions relating to expunction, correction, or confidential handling of criminal history records or information derived therefrom. This section does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.
(1) Petition to expunge a criminal history record.__Each petition to a court to expunge a criminal history record is complete only when accompanied by:
(a) A certificate of eligibility for expunction issued by the department pursuant to subsection (2).
(b) The petitioner's sworn statement attesting that the petitioner:
1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing a felony or a misdemeanor specified in s. 943.051(3)(b).
2. Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains.
3. Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058, or from any jurisdiction outside the state.
4. Is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court.
Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Certificate of eligibility for expunction.__Prior to petitioning the court to expunge a criminal history record, a person seeking to expunge a criminal history record shall apply to the department for a certificate of eligibility for expunction. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for expunction. The department shall issue a certificate of eligibility for expunction to a person who is the subject of a criminal history record if that person:
(a) Has obtained, and submitted to the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which indicates:
1. That an indictment, information, or other charging document was not filed or issued in the case.
2. That an indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi by the state attorney or statewide prosecutor, or was dismissed by a court of competent jurisdiction.
3. That the criminal history record does not relate to a violation of s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, or a violation enumerated in s. 907.041, where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense, or that the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, such an offense as a delinquent act, without regard to whether adjudication was withheld.
(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
(c) Has submitted to the department a certified copy of the disposition of the charge to which the petition to expunge pertains.
(d) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing a felony or a misdemeanor specified in s. 943.051(3)(b).
(e) Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains.
(f) Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058.
(g) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to expunge pertains.
(h) Is not required to wait a minimum of 10 years prior to being eligible for an expunction of such records because all charges related to the arrest or criminal activity to which the petition to expunge pertains were dismissed prior to trial, adjudication, or the withholding of adjudication. Otherwise, such criminal history record must be sealed under this section, former s. 893.14, former s. 901.33, or former s. 943.058 for at least 10 years before such record is eligible for expunction.
(3) Processing of a petition or order to expunge.__
(a) In judicial proceedings under this section, a copy of the completed petition to expunge shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to expunge.
(b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to expunge to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
(c) For an order to expunge entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of an order to expunge which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged. Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to expunge. The department shall seal the record until such time as the order is voided by the court.
(d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to expunge entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to expunge when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or such order does not otherwise comply with the requirements of this section.
(4) Effect of criminal history record expunction.__Any criminal history record of a minor or an adult which is ordered expunged by a court of competent jurisdiction pursuant to this section must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department must be retained in all cases. A criminal history record ordered expunged that is retained by the department is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and not available to any person or entity except upon order of a court of competent jurisdiction. A criminal justice agency may retain a notation indicating compliance with an order to expunge.
(a) The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, 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 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 as provided in s. 110.1127(3), s. 393.063(15), s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 985.407, or chapter 400; or
6. Is seeking to be employed or licensed by the Office of Teacher Education, Certification, Staff Development, and Professional Practices of the Department of Education, any district school board, or any local governmental entity that licenses child care facilities.
(b) Subject to the exceptions in paragraph (a), a person who has been granted an expunction under this section, former s. 893.14, former s. 901.33, or former s. 943.058 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.
(c) Information relating to the existence of an expunged criminal history record which is provided in accordance with paragraph (a) is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that the department shall disclose the existence of a criminal history record ordered expunged to the entities set forth in subparagraphs (a)1., 4., 5., and 6. for their respective licensing and employment purposes, and to criminal justice agencies for their respective criminal justice purposes. It is unlawful for any employee of an entity set forth in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6. to disclose information relating to the existence of an expunged criminal history record of a person seeking employment or licensure with such entity or contractor, except to the person to whom the criminal history record relates or to persons having direct responsibility for employment or licensure decisions. Any person who violates this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(5) Statutory references.__Any reference to any other chapter, section, or subdivision of the Florida Statutes in this section constitutes a general reference under the doctrine of incorporation by reference.
Certain serious offenses may not be sealed, and if a person has a prior conviction for certain serious offenses, then he or she no longer qualifies for sealing. Federal criminal records may not be sealed. [Return to text]