Florida Criminal Records FAQ » Sealing

Does Getting a Pardon from the Governor Automatically Mean That You Can Get Your Criminal Record Sealed or Expunged?

admin — Fri, 29 Jan 2010 17:05:24 +0000

A pardon has been defined as “the forgiveness of crime and the penalty associated with it.” In Florida, it is the governor who has the power to grant pardons.

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:

A pardon is the equivalent of forgiveness for a crime, it does not declare the pardoned individual innocent of the crime. While a pardon removes the legal consequences of a crime, it does not remove the historical fact that the conviction occurred; a pardon does not mean that the conviction is gone. If a pardon had the effect of allowing an individual to declare that he had not been adjudicated guilty of a crime, the end result would be that all pardoned individuals would be eligible for expungement of their criminal history records. Today, we hold that a pardon does not have the effect of erasing guilt so that a conviction is treated as though it had never occurred. A pardoned individual can therefore not satisfy the requirements of [the law pertaining to the expunction of criminal records] and cannot qualify for a certificate of eligibility.

Can Even a Serious Charge Such as Murder Be Expunged?

admin — Fri, 11 Dec 2009 16:54:13 +0000

According to Florida law, a judge is not allowed to deny an individual’s request to have his criminal record expunged simply because of the seriousness of the charge.

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.

Which crimes cannot be sealed or expunged in Florida?

admin — Mon, 09 Feb 2009 23:01:26 +0000

Your criminal history record cannot be sealed or expunged in Florida if you were found guilty by a judge or pled guilty or nolo contendere (no contest) to certain crimes, even if adjudication was withheld and even if you were convicted of simply attempting or conspiring to commit certain crimes.

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

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
Carjacking
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
An act of domestic violence
Home-invasion Robbery
An act of terrorism
Manufacturing certain controlled substances
Sexual misconduct with a developmentally-disabled person
Sexual misconduct with a mental-health patient
Luring or enticing a child
Sexual battery
Procuring a person under the age of 18 for prostitution
Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
Voyeurism
Scheme to defraud or organized fraud
Lewd or lascivious offense upon or in presence of elderly person or disabled person
Sexual performance by a child
Offenses by public officers and employees
Showing or selling obscene literature to a minor
Computer pornography
Selling or buying of minors
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.

Why is the database at the Florida Department of Highway Safety and Motor Vehicles (DHSMV) checked in order to determine my eligibility to have my criminal history record sealed or expunged?

admin — Mon, 09 Feb 2009 22:50:09 +0000

A criminal traffic offense such as DUI, reckless driving, or driving while license suspended/canceled/revoked may appear in the DHSMV database even though it may not appear in the criminal history record system maintained by FDLE.

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.

What kinds of criminal charges may not be sealed?

admin — Mon, 09 Feb 2009 20:51:37 +0000

A list of charges that may not be sealed when adjudication is withheld is contained in Florida Statutes section 943.059. (The same listing is found in section 943.0585 because the specified offenses may not be expunged either.)

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.

When is my criminal history record sealed or expunged?

admin — Mon, 09 Feb 2009 20:39:50 +0000

Once an order has been issued by the court of competent jurisdiction to seal or expunge your criminal history record and a certified copy of this order has been received by the FDLE, it will be complied with in accordance with state statutes.

How can I get my criminal record sealed in Florida?

admin — Tue, 03 Feb 2009 21:43:52 +0000

I often get phone calls from people asking me if they can get their criminal record sealed or expunged in Florida because they are having trouble getting a job once their potential employer finds out about their record.

In order for me answer their question, I first have to get some information from them such as whether they were adjudicated guilty of the Florida criminal charge that they are calling about. If the answer is yes, then they cannot get their Florida criminal record sealed or expunged.

If the answer is no, then I ask them whether they have ever before had a criminal record sealed or expunged. If the answer is yes, then they cannot get their Florida record sealed or expunged.

If the answer is no, then I ask them whether they currently have a motion to seal or expunge their record pending in any court anywhere. If the answer is yes, then they cannot get their Florida record sealed or expunged. If the answer is no, then they may be eligible to have their Florida criminal record sealed or expunged.

As you can see, the rules for getting a criminal record sealed or expunged in Florida are quite stringent. If you wish to review for yourself the rules regarding sealing or expunging your record, read Florida Statute Section 943.0585. If you think you are eligible to get your Florida record sealed or expunged and you wish to have that done, contact an experienced Florida sealing record lawyer so that he or she can file the necessary paperwork to get your record sealed or expunged.

What is the difference between sealing and expunging your criminal record?

admin — Tue, 03 Feb 2009 21:37:57 +0000

I often receive telephone calls from people asking if I can help them get their criminal record expunged. I ask them if they are eligible to have their criminal record expunged or merely sealed. The response is usually silence, since most people do not realize that there is a distinction in Florida law between getting one’s criminal record expunged versus getting it sealed. If a criminal record is expunged, then it must be physically destroyed pursuant to Florida statute section 943.0585(4).

However, if a criminal record is merely sealed, then it is not physically destroyed but its contents are still confidential under most circumstances. See Florida statute section 943.059(4). Once a criminal record has been sealed for at least 10 years, it may then be possible to have it expunged. See Florida statute section 943.0585(2)(h).