In the case of Fisher v. State of Florida, Mr. Fisher filed a petition to expunge his criminal record.  The judge deciding his case denied his petition but did not state why she did so based upon the specific facts of Mr. Fisher’s case.  Instead, she merely noted that the law gives judges discretion to grant or deny a person’s request to have his criminal record expunged.

Florida’s Second District Court of Appeal reversed the judge’s decision and in doing so stated:

1.   When a person meets the legal requirements for having his record sealed or expunged and files an appropriate petition with the Court, “he is entitled to a hearing at which the trial court should consider all of the facts and circumstances of his case.”

2.  Because the trial judge in Mr. Fisher’s case did not state why she denied his petition based upon the facts of his particular case, the appellate court was unable to determine whether she exercised her discretion properly.

3.  The trial judge was ordered to conduct another hearing regarding Mr. Fisher’s petition, and if she denied it a second time, she was to state why she denied it based upon the particular facts and circumstances of Fisher’s case.

          Assuming you are fortunate enough to obtain a pardon, does that automatically mean that you can get your criminal record sealed or expunged?

          That was the question decided by the Florida Supreme Court in the case of R.J.L. v. State of Florida.

          In that case, an individual with the initials “R.J.L.” was convicted of kidnapping but was later granted a full pardon.  40 years after receiving that pardon, R.J.L. applied to the Florida Department of Law Enforcement (“FDLE”) for a certificate of eligibility to have his criminal record expunged.  FDLE denied the application because according to Florida law, a person cannot get his record expunged if he was adjudicated guilty of the crime that he is applying to have expunged from his record.  When R.J.L. pointed out that he had been granted a full pardon, FDLE responded that the pardon did not remove the fact that he was adjudicated guilty of kidnapping and therefore legally ineligible to have his record expunged.  R.J.L. ultimately appealed to Florida’s Supreme Court.

          The issue decided by the Supreme Court was whether R.J.L.’s pardon acted to eliminate his adjudication of guilt so as to make him legally eligible to have his record expunged.        

          Unfortunately for R.J.L. and for those in a similar situation, Florida’s Supreme Court sided with FDLE and against R.J.L.  In doing so, the Court stated:

          That was the ruling in the case of Harman v. State of Florida. 

          In that case, Mr. Harman, who had previously been charged with second-degree murder, filed a petition asking a judge to expunge his criminal history record.  The judge, however, refused Harman’s request even though the State Attorney’s Office had originally dropped the case.  The judge’s reasons for doing so were:

          1.  The crime of second-degree murder is serious; and

          2.  Mr. Harman had been previously accused of domestic violence.

          Harman appealed that decision to Florida’s Second District Court of Appeal which reversed the lower court’s order because:

          1.  The seriousness of a charge, standing alone, is insufficient to support the denial of a request to expunge  a criminal record; and

          2.  The prosecutor failed to present any evidence supporting his allegation that Harman had previously committed an act of domestic violence.

          As a result, the appellate court sent Harman’s case back to the trial judge and ordered him to reconsider Harman’s request that his record be expunged.

That is precisely what happened in the case of Orozco v. State of Florida.  In that case, Ms. Orozco pled guilty to the crime of petit theft, and adjudication was withheld.  Sometime later, she filed a petition to seal her criminal record along with all the necessary paperwork including a certificate from the Florida Department of Law Enforcement stating that she was legally eligible to have her record sealed.  Instead of scheduling a hearing to decide Orozco’s petition, however, the judge hearing her case simply entered an order denying her petition.

On appeal, Florida’s Fourth District Court of Appeal reversed the lower-court decision stating that since Orozco complied with all the necessary requirements, the judge deciding her case should have ordered that her record be sealed unless there was a good reason to deny it.  The court of appeal, therefore, sent Orozco’s case back to the lower court to have a hearing to decide whether or not such a reason existed.

For example, in the case of Kanji v. State of Florida, Mr. Kanji filed a petition to expunge his criminal history record.  The prosecuting attorney objected to his petition for the following reasons:

1.  “[M]embers of the public who came into contact with Kanji should have unfettered access to his criminal history records so they might be better informed before establishing a relationship with him;” and

2.   “The arresting affidavits reflected that Kanji’s purported wrongdoing constituted a ‘violation of trust’ because the alleged victim was a family friend.”

The trial judge hearing Kanji’s petition ultimately denied it but in so doing failed to state why.  Kanji appealed the judge’s ruling, and the appellate court hearing the case decided in Kanji’s favor stating that “[i]n exercising its discretion, the trial court must consider all the facts and circumstances and may not deny the petition based solely on the nature of the crime.”  The appellate court then sent the case back to the trial judge and instructed her to either grant Kanji’s petition or else state why she was again denying it.

According to Florida Statute Section 943.0581, an adult, or a parent or legal guardian of a minor, can request that FDLE administratively expunge “any nonjudicial record of an arrest alleged to have been made contrary to law or by mistake,” provided that the following conditions are met:

• The application “is supported by the endorsement of the head of the arresting agency or his or her designee or the state attorney of the judicial circuit in which the arrest occurred or his or her designee”;
• The application “shall include the date and time of the arrest, the name of the person arrested, the offender-based tracking system number, and the crime or crimes charged”; and
• The application “shall be on the submitting agency’s letterhead and shall be signed by the head of the submitting agency or his or her designee.”

Some people believe that their arrest record is automatically expunged if their case never goes to court. That is incorrect! In order to expunge your criminal record, you must follow certain established guidelines, some of which have been discussed in this article.

The following is a list of 36 such crimes that appear on the Florida Department of Law Enforcement’s website:

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 the 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 a person in familial or custodial authority
16. Burglary of a dwelling
17. Stalking and Aggravated Stalking
18. An act of domestic violence
19. Home-invasion Robbery
20. An act of terrorism
21. Manufacturing certain controlled substances
22. Sexual misconduct with a developmentally-disabled person
23. Sexual misconduct with a mental-health patient
24. Luring or enticing a child
25. Sexual battery
26. Procuring a person under the age of 18 for prostitution
27. Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
28. Voyeurism
29. Scheme to defraud or organized fraud
30. Lewd or lascivious offense upon or in presence of elderly person or disabled person
31. Sexual performance by a child
32. Offenses by public officers and employees
33. Showing or selling obscene literature to a minor
34. Computer pornography
35. Selling or buying of minors
36. Trafficking in controlled substances

However, if you were simply arrested for one of the above-mentioned crimes or if you were charged with one of these crimes but charges were later dismissed, it may still be possible for you to get your criminal history record sealed or expunged.

• Section “A” of the application must be completed and signed in the presence of a notary public;
• 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;
• The applicant must provide a certified disposition of the case that he is applying to have sealed or expunged.
• A nonrefundable money order or cashier’s check in the amount of $75.00 made payable to the FDLE must accompany the application.
• If you are requesting an expunction of a criminal history record, the Office of the State Attorney or the Office of the Statewide Prosecutor with jurisdiction over your case must complete Section “B” of the application. If section “B” is not completed, FDLE will assume that you are attempting to get your criminal history record sealed rather than expunged.

The issuance of the certificate of eligibility is not the final step in the sealing or expunging process nor does it guarantee that a criminal history record will be sealed or expunged.

The final decision about whether or not to seal or expunge a criminal history record is up to the judge who has jurisdiction over your case.

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, those agencies may include the Florida Department of Corrections, Teen Courts, and the Florida Department of Juvenile Justice.