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.

In 1993, Mr. Anderson pled no contest to charges of grand theft and aggravated stalking in connection with an incident in which he grabbed a former girlfriend’s purse and ran away.  The purse was recovered and no violence or threat of violence was involved. The judge withheld adjudication and sentenced defendant to two-and-one-half years on probation along with counseling and restitution.

Anderson had no prior criminal record, and he had a responsible job.  After completing all of his probation requirements early, Anderson’s probation was successfully terminated after just one year and eleven months.

Anderson then filed a petition with the court to seal his criminal-history record.  He obtained the required certificate of eligibility from the Florida Department of Law Enforcement. However, the trial judge denied Anderson’s petition, so Anderson appealed to Florida’s Third District Court of Appeal.

The appellate court disagreed with the trial judge and ruled instead that Anderson’s petition should have been granted.  The court of appeals noted that the reasons given by the trial judge for denying Anderson’s petition was that Anderson had already received a break from the criminal justice system when adjudication was withheld in his case and when his probation was terminated early.

However, the appellate court did not think that these reasons were sufficient to deny Anderson’s petition because:

1.  This was a first offense as well as a nonviolent crime, so it was not unusual for the trial judge to have withheld adjudication.

2.  The fact that Anderson did so well on probation that the judge decided to successfully terminate his probation should have been a factor operating in favor of sealing his record rather than denying it.

3.  Although Anderson’s charges were serious, the trial judge should have based his decision on all of the relevant facts and circumstances rather than on just the nature of the charges.

          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.

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.

Noncriminal traffic offenses (such as careless driving) do not affect one’s eligibility to seal or expunge a criminal history record. But, an adjudication of guilt for any criminal offense, even a traffic offense,  makes it impossible for an applicant to get her criminal history record sealed or expunged.

In addition, if a person has been adjudicated guilty of any criminal offense in any jurisdiction (or adjudicated delinquent as a juvenile 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, and the application will be denied.