Morgan & Barbary

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Sealing & Expungement

Everything you always wanted to know concerning Sealing and Expungement or Expunction is regulated by Florida Statutes §943.0585 and §943.059.

To be eligible to have a criminal history record sealed or expunged, you must first apply to the Florida Department of Law Enforcement (F.D.L.E.) for a Certificate of Eligibility. Your receipt of a Certificate of Eligibility does not guaranty that a Court will order that your criminal history record be ordered sealed or expunged. It merely indicates that you are eligible for the type of relief that is being requested pursuant to the Statutes listed above.

If you have 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 you are applying for, the record is ineligible for sealing or expunction and the application will be denied.

Do you have questions about your record? We can help.

Call Morgan & Barbary’s experienced criminal defense attorney, Darrell Sedgwick, located in Melbourne, Florida for your FREE telephone consultation to discuss the specifics of your case: 321-951-3400. Call today, we are here to assist you with these important matters.

Why isn’t my criminal history record cleared when the charges against me were not filed, dropped or dismissed?

The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. (F.S. §943.053(3)). Your criminal record is created when you are arrested and fingerprinted. Even though the record will include the disposition of that arrest, whether it is a conviction, acquittal, and dismissal of charges before trial, or other disposition, many potential employers fail to read and or understand the complete record, and their information of your criminal record is usually distorted and incorrect.

What is the difference between having my criminal history record sealed and expunged?

If your criminal history record is sealed, the public will not have access to it (certain governmental or related entities, primarily those listed in F.S. §943.059(4)(a), have access to sealed record information in its entirety). See below. If your record has been expunged, the entities, which would have access to your sealed record, will not have access to the record itself without a Court Order. They’ll only know that the subject of the record was expunged.

What charges may be expunged?

A charge, which was dismissed before trial (e.g., no information, no filed, 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.

What charges must first be sealed for 10 years before it can be expunged?

A charge which resulted in a withholding of adjudication or in an acquittal (a not guilty verdict) after trial may not be expunged unless and until it has first been sealed for at least 10 years.

How many criminal events can I have sealed or expunged?

You may only seal or expunge one arrest record. Sometimes, 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, which could be sealed but not be expunged, may become eligible for expungement after it has been sealed for 10 years.

What charges may not be sealed even though the Court withheld adjudication?

Offenses listed in F.S. §907.041(4)(a):

  • Arson
  • Aggravated Assault
  • Aggravated Battery
  • Illegal use of explosives
  • Child abuse or Aggravated Child Abuse
  • Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
  • Aircraft piracy
  • Kidnapping
  • Homicide
  • Manslaughter
  • Sexual Battery
  • Robbery
  • Car jacking
  • Lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of 16 years
  • Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of a person in familial or custodial authority
  • Burglary of a dwelling
  • Stalking and Aggravated Stalking
  • Act of Domestic Violence as defined in F.S. §741.28
  • Home-invasion Robbery
  • Act of Terrorism as defined by F.S. §775.30
  • Attempting or conspiring to commit any of the above crimes

And also:

What is the effect a full pardon on my ability to have my criminal history record sealed or expunged?

Unless the pardon indicates on its face that it entitles your 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.

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.

If the juvenile criminal history record you want to seal or expunge precedes October 1, 1994 (for felonies), and July 1, 1996, (for specified misdemeanors), keep in mind that the juvenile arrest records were not then maintained by F.D.L.E., and would therefore not be available to the general public, unless the juvenile was charged as an adult.

If I have a criminal 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 said record was sealed or expunged after you successfully petitioned a court and obtained a court order, you are not eligible to have another record sealed or expunged here.

What background check is conducted by F.D.L.E. to determine my eligibility to have my criminal history record sealed or expunged?

FDLE will check the Florida Crime Information Center (F.C.I.C.), as well as the national record check through the National Crime Information Center (N.C.I.C.). It will also check your driving history with the Florida Department of Highway Safety and Motor Vehicles (D.H.S.M.V.).

Why is the Florida Department of Highway Safety and Motor Vehicles (D.H.S.M.V.) checked to determine my eligibility to have my criminal history record sealed or expunged?

Because certain driving offenses are criminal offenses, such as DUI, Driving While License Suspended/Canceled/Revoked With Knowledge, or Reckless Driving, and may appear in the D.H.S.M.V. database even though they may not be entered in the criminal history record system maintained by F.D.L.E.

Keep in mind that as a DUI must be adjudicated by statute, anyone who ever plead or was found guilty of DUI loses his or her eligibility to seal or expunge this or any other criminal history record.

Which entities receive a copy of the order to seal or expunge a criminal history record?

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.
  • The arresting agency or agencies, which in turn become 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 F.D.L.E., these agencies may include the Department of Corrections, Teen Courts, and Department of Juvenile Justice.

For what reasons would my Certification of Eligibility to seal or expunge a criminal history record be denied? (see F.S. §943.0585 and F.S. §943.059)

  • You have been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing any felony or a misdemeanor specified in F.S. §943.051(3)(b).
  • You have been adjudicated guilty of or adjudicated delinquent for committing one or more of the acts stemming from the arrest or alleged criminal activity to which the application pertains.
  • You have sought and obtained a prior sealing or expunction of a criminal history record under F.S. §943.0585§943.059, former §893.14, former §901.33, former §943.058, or from any jurisdiction outside the state.
  • The case you are attempting to seal or expunge pertains to a crime listed in §6 above.
  • You have another petition to seal or expunge pending before a court or competent jurisdiction.
  • The case in the record you are attempting to seal or expunge is not closed.
  • For expunction only: Some of the charges related to the arrest or criminal activity pertaining to your application were not dismissed and adjudication was withheld, or you were found not guilty a trial. Your case may still qualify to be sealed.

To whom do I have to disclose the fact that my record is sealed or expunged?

Once your record is sealed or expunged, you may lawfully deny or fail to acknowledge the arrests of which record was sealed or expunged, except if:

  • You are a candidate for employment with a criminal justice agency;
  • You are a defendant in a criminal prosecution;
  • You concurrently or subsequently petition for relief under F.S. §943.0585 or §943.059;
  • You are a candidate for admission to The Florida Bar;
  • You are 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 §110.1127(3)§393.063(15), §394.4572(1)§397.451§402.302(3)§402.313(3)§409.175(2(i)§415.102(4)§415.103, §916.106(10) and (13), §985.407, or Chapter 400; or
  • You are 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.

When the record is expunged the agency will only receive the subject’s demographic information and a statement that the criminal history information has been expunged, but said agency will be unable to receive the details.

The process usually takes between 60 and 120 days. It does involve certain costs. If you feel you qualify for a sealing or expunction, here at Morgan and Barbary, we can ease the procedure and do it for you. We usually charge between $1,250.00 and $1,500.00 depending on the circumstances.

Call our Melbourne; Florida experienced criminal defense attorneys Patrick Barbary and Darrel Sedgwick today at 321-951-3400 for your FREE telephone consultation to discuss the specifics of your case.

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