Florida Criminal Records FAQ - by Ron Chapman

Can a Judge Refuse to Seal Your Record in Palm Beach County Florida Without Giving a Valid Reason?

rchapman — Fri, 11 May 2012 20:47:39 +0000

In the case of Gerald Kenneth Cole versus the State of Florida, Mr. Cole was charged with committing the crime of lewd or lascivious molestation. He went to trial, and a jury found him not guilty.

Following the jury’s decision, Cole filed a petition with the court asking to have his record sealed. The presiding judge held a hearing on Cole’s petition but denied his petition without giving any reason for doing so.

Cole appealed the judge’s decision, and the appellate court ruled that the judge incorrectly based his decision solely upon the crime that Cole was charged with committing–lewd or lascivious molestation. However, what the judge should have done, the appellate court ruled, was to consider all of the facts and circumstances in Cole’s case. Because the judge did not do that, the court of appeal sent Cole’s case back to the trial judge and instructed him to either grant the petition to seal or else provide a reason, based upon all of the facts and circumstances, why he was denying Cole’s petition.

What Major Changes Have Occurred in Florida’s Clemency Law?

rchapman — Tue, 27 Dec 2011 00:59:11 +0000

Clemency has been defined as “the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it.”

Florida attorney Reginald Garcia has written an article entitled “Florida Executive Clemency: Seeking Mercy and Justice for Convicted Felons.” In this article, Mr. Garcia discusses changes in Florida’s clemency law that went into effect earlier this year. These changes affect such things as the restoration of civil rights, full pardon and firearm authority, and prison commutations. I highly recommend Mr. Garcia’s article to anyone who is interested in learning more about these very important changes.

How is a Judge’s Discretion to Deny Your Petition to Expunge Your Criminal Record Limited?

rchapman — Fri, 09 Dec 2011 00:04:58 +0000

Florida law provides that “any request for expunction of a criminal history record may be denied at the sole discretion of the court.” However, that discretion is limited. For example, in the case of Kim Wells versus the State of Florida, Ms. Wells filed a petition with the court asking that her criminal record be expunged. The Office of the State Attorney replied acknowledging that she was, in fact, legally eligible to have her record expunged and that the presiding judge should therefore hold a hearing at which time he could decide whether Ms. Wells’ record should be expunged. Instead of following that procedure, however, the judge simply denied Wells’ petition without a hearing.

Wells then appealed the judge’s decision to Florida’s Fifth District Court of Appeal which ruled that the lower-court judge had to hold a hearing before deciding how to rule on Wells’ petition. The appellate court stated, “[W]e believe that once the court was presented with a proper petition for sealing and expunction, unopposed by the [prosecutor], the matter should have been set for hearing, as requested by the [prosecutor], and not summarily denied. [Florida law] contemplates that a hearing will be afforded when requested.”

In other words, the appellate court did not say that the lower-court judge was required to expunge Wells’ criminal record; however, the lower-court judge was required to set the matter for hearing before deciding the issue.

If you are interested in getting your criminal record sealed or expunged in West Palm Beach, Palm Beach, St. Lucie County, Martin County, Palm Beach County, Broward County, or Miami-Dade County, please call me, attorney Ron Chapman, at 561-832-4348 to discuss your case and see how I might be able to help you.

Does Being Adjudicated Guilty Mean That You Cannot Get Your Record Expunged?

rchapman — Mon, 16 May 2011 16:14:40 +0000

In the case of Julie Matthews versus the State of Florida, Ms. Matthews appealed a judge’s decision to not expunge her criminal-history record for grand theft of an automobile based upon the following facts:

“During the evening of March 8, 1995, . . . Julie Matthews was with a group of friends at a restaurant. She left the restaurant [using] one of her friend’s vehicles. Her friend filed a police report, and [Matthews] was arrested for grand theft of an automobile on March 9, 1995 around 10:00 A.M. Seven hours earlier on March 9, 1995, [Matthews] had been arrested for driving under the influence (DUI) in that same friend’s vehicle. These arrests were treated as separate incidents. They were reported in separate police reports, they were given separate agency case numbers by the Sheriff’s Department, and they were given separate court case numbers.”[Matthews] was adjudicated guilty of DUI. The State [Attorney's Office dropped the] grand-theft auto case. To have her grand theft auto offense expunged, [Matthews] applied for a certificate of eligibility from the Florida Department of Law Enforcement (FDLE) . . . . FDLE sent [Matthews] a letter stating that the certificate of eligibility would not be issued since she had been adjudicated guilty of charges (namely, DUI) stemming from the arrest or alleged criminal activity to which the application pertained. [Matthews] filed a motion to compel FDLE to produce a certificate of eligibility for expungement. The State Attorney’s Office and FDLE filed their respective responses in opposition to [Matthews'] motion.”

The trial judge agreed with FDLE’s refusal to issue Matthews a certificate of eligibility, so she appealed to Florida’s Fifth District Court of Appeal. But that appellate court also agreed with FDLE’s decision because Florida law states that a person is not eligible to receive a certificate of eligibility if she has been adjudicated guilty of a criminal offense prior to applying for such a certificate. And because Matthews was adjudicated guilty of the criminal offense of DUI before applying to FDLE for a certificate of eligibility, she was, therefore, not legally eligible to receive that certificate.

Your Right to Seal Your Record Versus the Public’s Right to Know

rchapman — Wed, 20 Apr 2011 21:12:08 +0000

In the case of S.L.P. versus the State of Florida, an individual (with the initials “S.L.P.”) asked a judge to seal her criminal record. The judge denied her request on the ground that the public’s interest in having access to S.L.P.’s criminal-history record outweighed S.L.P.’s interest in sealing her record.

S.L.P. appealed the judge’s decision to Florida’s Third District Court of Appeal and won!

The appellate court stated:

1. A judge may deny someone’s request to seal her record if there is a good reason to do so based upon the facts and circumstances of that particular case.

2. However, a judge’s discretion to deny such a request is not without limits.

3. The public’s interest in having access to someone’s criminal-history record is not, by itself, a sufficient reason to deny an individual’s request to seal her record.

4. The lower-court judge was ordered to seal S.L.P.’s record.

Do You Have the Right to Have Your Criminal Record Expunged?

rchapman — Wed, 23 Mar 2011 13:08:27 +0000

In the case of Scott Baker versus the State of Florida, a judge denied Mr. Baker’s petition to expunge his criminal-history record even though the prosecutor’s office had previously decided to not file any charges in his case. The judge did so because Mr. Baker worked at a car wash where he had contact with members of the public, children included. The judge’s opinion was that “the public’s compelling interest in knowing the character of those who provide a service to the community, particularly the children of the community” justified her denying Mr. Baker’s request.

Mr. Baker appealed the judge’s ruling to Florida’s First District Court of Appeal. That appellate court agreed with Mr. Baker that the judge’s reasons for denying his request were not sufficiently related to the particular facts and circumstances of his case. In so doing, the Court stated that:

1. Although Florida law does not give anyone the right to have his criminal-history record expunged, satisfying the legal requirements for having one’s record expunged does create a presumption in favor of expunction;

2. When someone has satisfied the legal requirements for having his record expunged, a judge abuses her discretion in denying a request for expunction if she does not have a factual basis for doing so;

3. When deciding whether to expunge a record, a judge must weigh the policy of public access to records against the “long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty”;

4. A judge must base her decision on the facts and circumstances of each particular case and not solely on the nature of the charge.

5. It is improper for a judge to deny someone’s request to expunge his record based upon facts that would apply to any person who is trying to expunge his record.

6. In Mr. Baker’s case, the judge erred in denying his request to expunge his record because there was no evidence indicating that Mr. Baker worked in a position of trust, that he had more contact with children than the average person, or that his job placed him in the position of having unsupervised contact with children.

The First District Court of Appeal concluded by sending Mr. Baker’s request for expunction back to the trial judge so that she could reconsider her decision in light of the appellate court’s ruling.

Can a Judge Refuse to Expunge a Criminal Record Without First Hearing Evidence?

rchapman — Wed, 29 Dec 2010 15:27:41 +0000

In the case of VFD versus the State of Florida, the issue was whether a judge correctly denied VFD’s (these are the person’s initials) petition to expunge his criminal record without first hearing evidence and then stating specific reasons for denying the motion.

The relevant facts in this case are that VFD filed a petition to expunge all criminal history information in the custody of any criminal justice agency and the official records of the court documenting his arrest for the charge of aggravated assault with a deadly weapon by the Jacksonville Sheriff’s Office. The opinion states:

“When the hearing began, [VFD] was the first witness. After he had answered two questions, the [judge] interjected: ‘Let me stop you for a moment. If I recall it was not that the [prosecutor] believed he was not eligible, there was some factors they wanted to present, so let me hold off on his testimony because I don’t think anyone denies that he’s eligible. Let me hear from the [prosecutor] and let you respond after they’re done.’ This brought to an end the evidentiary portion of the hearing.

[The prosecutor] told the court that the arrest occurred when VFD pointed a gun at an air-conditioner repairman in the course of an argument, that officers found the gun under the seat of a truck, and that the officers ‘also testified by their reports that this defendant was belligerent with them.’ The [prosecutor] represented that ‘it appeared from the reports that [VFD] had shot at someone in self-defense in April of 2008 which was about three months prior to this incident,’ and argued against expunging the records because ‘this is a type of case that could be used as William’s Rule if any future case were to come up with similar situations.’ The [prosecutor] told the [judge] that it ‘appears as if there was a witness who would testify this is what happened to him,’ and that ‘the police officers would have testified there was a gun.’

[VFD's lawyer] responded that the charges . . . were dropped, and that he could present the testimony of VFD’s wife, who was present during the incident, that VFD never pulled a gun. He also stated that he could put on evidence to prove that the April 2008 gunshot was fired in self-defense.

The [judge] spurned VFD’s offer to present evidence, stating, ‘I don’t think it’s my role at this point to determine whether that event in fact happened. My role is to determine whether it would be appropriate to preclude law enforcement from having access to this information should they need it in the future.’ The [judge] determined ‘based on the totality’ of what had been presented at the hearing that the records would be sealed, but not expunged, so that it could be determined at some later time whether it would be appropriate for law enforcement to have access to the records.”

VFD appealed the denial of his petition to Florida’s First District Court of Appeal which concluded that the way the judge conducted the hearing in VFD’s case was incorrect.

The appellate court began by noting that “where a petitioner has satisfied all of the statutory requirements, [Florida law] gives the [judge] the discretion to deny expunction if there is a good reason for denial based on the facts and circumstances of the individual case.” But because of the absence of evidence supporting the prosecutor’s statements in VFD’s case, the judge had no specific factual basis to support her denial of VFD’s petition to expunge his record. The court of appeals stated that “[d]enial of VFD’s petition on grounds that the records, if not expunged, might–for reasons applicable in any case–prove useful in the future [was an insufficient reason to deny VFD's petition]. . . . The [judge] was alerted to factual disputes, including whether a gun was used during the incident that led to VFD’s arrest. No evidence refuted VFD’s version of events.”

As a result, the appellate court sent VFD’s case back to the lower-court judge and ordered her to hear evidence and to state specific reasons regarding why she was either granting or denying VFD’s petition.

How Many Criminal-History Records Can You Have Sealed?

rchapman — Sun, 14 Nov 2010 18:33:56 +0000

In the case of Cline v. State of Florida, the issue was whether Mr. Cline could have two different criminal-history records sealed.

The facts in the Cline case are as follows:

In June of 2005, Mr. Cline was arrested for the crime of possession of cocaine. He later pled guilty to that crime and adjudication of guilt was withheld. One year before that, in June 2004, Cline was arrested for the crime of possession of methamphetamine. The State Attorney’s Office agreed to drop the 2004 case on the same day that Cline pled guilty to the 2005 case. Although both cases were resolved at the same time, they involved separate and distinct criminal activity, different arrest dates, different charging documents, and different court files.

In 2008, Cline requested and obtained a court order sealing the criminal-history record in the 2005 cocaine case. Later, he filed another petition with the court asking to have his 2004 criminal-history record sealed. The judge denied that request based on his belief that Florida law permits an individual to get only one criminal-history record sealed. (Under certain circumstances, an individual can get more than one criminal record sealed, but none of those exceptions applied in Cline’s case.)

Mr. Cline appealed the judge’s decision to Florida’s Fifth District Court of Appeal. That appellate court ruled against Mr. Cline because subsection 2 of Florida statute section 943.059 implies that the Florida Department of Law Enforcement cannot issue someone a certificate of eligibility to get a criminal-history record sealed if that person has obtained a prior sealing for a different case. Because Mr. Cline’s 2005 case had been sealed, the court of appeal ruled that his 2004 case could not be sealed.

Is Sealed or Expunged Information Ever Released as Part of a Background Check?

rchapman — Mon, 18 Oct 2010 02:29:48 +0000

I am sometimes asked whether the information contained in a criminal-history record that has been sealed or expunged is ever released to anyone. The answer is that insofar as a sealed record is concerned, Florida law states that information relating to the existence of a sealed criminal record is confidential except that the Florida Department of Law Enforcement shall disclose such a record when the person whose record has been sealed:

1. Is trying to get hired by a criminal justice agency;

2. Is applying for admission to The Florida Bar;

3. ”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”;

4. ”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

5. Is seeking authorization from certain Florida seaports for employment with or access to such seaports.

Insofar as an expunged criminal record is concerned, Florida law states that information related to the existence of an expunged record is not provided to anyone. However, notification that a record has been expunged is provided to the same agencies mentioned above in paragraphs 1 through 5.

Florida Criminal Records: What Does a Background Check Consist of?

rchapman — Sun, 03 Oct 2010 22:44:36 +0000

The Florida Department of Law Enforcement (“FDLE”) defines a background check as “a criminal history record check to determine if a person has been arrested and/or convicted of a crime.” If you were to request such a check, FDLE would search the following databases:

The Florida Computerized Criminal History Central Repository for Florida arrests (state check).
The FBI’s national criminal history database for federal arrests as well as arrests from other states (national check).
The Florida Crime Information Center for warrants and domestic violence injunctions (hot files check).

A national background check is based only on your fingerprints, while a state check is based upon your name (and other identifying characteristics) or your fingerprints.

A Level 1 background check in Florida refers to a check based upon your name and employment history. A Level 2 background check, on the other hand, refers to a state and national check based upon your fingerprints and consideration of disqualifying offenses. This more intensive background check applies to those employees who are designated by Florida law as holding positions of responsibility or trust.

Finally, you should note that while both state and federal criminal-history databases are able to search for your arrests, warrants, and other information, neither database is able to search for specific crimes that are on your record.