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.

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.

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.

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.

The facts in the Cline case are as follows:

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.

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.

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.