Everyone, whether a minor or an adult, makes mistakes in life. Sometimes, those mistakes involve the commission of a crime and, with that, the establishment of a criminal record. That record can create many problems in a person’s professional and personal life, which is why former offenders pursue a petition to seal or expunge their criminal records. In order to achieve success in restoring your good name, you have to follow a very strict process and to get through that process successfully, you need the help of a knowledgeable criminal defense lawyer
Petition to Expunge vs. Petition to Seal Records
If you are interested in expunging or sealing your criminal record, there are many steps that must be taken and many factors impacting those steps. In order to make sure you are eligible to expunge or seal your record and that you follow procedure correctly, retain the services of a criminal defense attorney familiar with the Florida process of expunging or sealing of criminal records. There are two options for making criminal records inaccessible or non-existent:
- Expungement: The expungement of criminal records involves the removal of the offender’s criminal history.
- Sealing of Records: A sealing of records involves restricting access to the records.
In both cases, a minor or adult offender must comply with the requirements set forth in the Florida Statutes and Rules of Procedure. Whether a person wishes to expunge or seal their records, they have to start with applying for eligibility. It is only after obtaining a certificate of eligibility that a person may continue the process. Additional factors such as the type of offense committed and the presence of multiple arrests or convictions on the record will impact the ultimate success of the case.
Expungement of Criminal Records as Ordered by a Florida Court
First In accordance with Florida Law and as listed under Florida Statute Title XLVII Chapter 943.0585, adult criminal history records are made public (providing special access under certain provisions), with the exception of sealed or expunged records. As Chapter 943.0585 indicates further, any Florida Court with prominent jurisdiction can order an agency within the criminal justice system to erase the criminal records (and history) of a juvenile or adult convict who is in full compliance with regulations laid out in this Statute.
No Florida Court will take action to expunge a record unless an individual has successfully applied for and received a certificate that makes them eligible to do so.
Petitioning for the Expungement of a Criminal Record
As indicated in FS Title XLVII Chapter 943.0585, the petition for the expungement of criminal records will only be recognized as “complete” if an individual has completed a valid certificate of eligibility released by the department and a sworn statement by the petitioner attests that:
- The petitioner has not been found guilty of additional crimes, offenses, or violations or has been found guilty of any misdemeanor prior to the date the certificate was filled.
- The petitioner has not been adjudicated for any crimes similar to those listed on the certificate prior to it being filled out.
- The petitioner has not secured another petition underChapter 943.059 unless he or she is seeking expungement for criminal activities that took place 10 years prior.
- The petitioner is fully eligible for this expungement and has not filed for any additional expungements.
Steps to Receive a Certificate of Eligibility for Crime Expungement in Florida
To obtain a certificate of eligibility for the expungement of criminal records (as indicated in Chapters 943.0585 and 943.059) in the State of Florida, applicants must take the following steps, as set by the Florida Department of Law Enforcement (FDLE):
- Fill out an application for a Certificate of Eligibility. To retrieve the document, you can download a file provided on the Florida Department of Law Enforcement’s website or request the application via email (FDLE expunge section). You must complete Section A in the presence of a Deputy Clerk of the Court or Notary Public. Section B will be handled and completed by the Prosecuting Attorney.
- Complete the FDLE fingerprint form (FD 40-024) that is included with the application packet. You may substitute a fingerprint card for this form. Each applicant must include his or her name, date of birth, race, sex, agency ORI, social security number, and signature (applicant and official).
- Retrieve a disposition of the case that will be expunged or sealed. If such a document is not readily available, the Clerk of Court, State Attorney’s Office, or arresting agency must submit a letter. In the event of pre-trial intervention cases or related programs, the State Attorney’s Office may supply a letter of completion to replace the disposition.
- Pay the fee of $75 as ordered by the FDLE. The applicant may pay via check, cashier’s check, or money order. Cash payments are not options. All payments must be submitted before the listed expiration date.
- The applicant must supply a letter from his or her attorney if he or she is being represented. This document must include a letterhead.
Keep in mind that all applicants must uncover and keep a record of all documents that are relative to his or her case (including arrest reports, dispositions, or orders of expungement). Once the criminal record has been expunged, the court can no longer provide public access to the applicant’s former record (as indicated in FS Chapter 943.0585).
Administrative Expungement: Wrongful Criminal Charges
In accordance with Florida Statute Title XLVII Chapter 943.0581 (1 and 2), the department may take action to adopt rules relevant to Chapter 120 to conduct administrative expungement of non judicial records related to the arrest of adults and minors that are generally considered to be mistaken. On part of the juvenile who has been wrongfully charged, his or her parent can apply on his or her behalf.
Court-Ordered Sealing of Criminal Records
In the same manner, as Title XLVII Chapter 943.0585, Statute Title XLVII Chapter 943.059 indicates that Florida Courts have the authority over the proceedings of judicial records, including the expungement or sealing of past criminal charges and records.
For more information, be sure to investigate Chapter 943.049 in more detail.
Reviewing Juvenile Diversion Expungement
Florida Statute Title XLVIII Chapter 943.0582 indicates that the department can adopt procedures to expunge the nonjudicial record of a minor (juvenile) who has taken part in a diversion program as part of charges for a misdemeanor offense. Keep in mind that “diversion programs” refer to programs listed in s. 985.12 or a program that has been referred by the Florida State Attorney.
In this case, elements of FS Title XLVIII Chapter 943.0585 (4) do not apply to the situation involving juvenile diversion, with the exception that the applicant’s criminal history will be released to criminal justice agencies for the following reasons:
- Determining if individuals are eligible for diversion programs
- Active criminal investigations
- Part of a prosecutorial decision (as indicated by Chapter 985.15)
Expungement on the Grounds of Self-Defense (Human Trafficking)
Under certain circumstances, victims of human trafficking may apply for eligibility for expungement on the grounds of self-defense, as listed by the FDLE and FS Title XLVIII Chapter 943.0583.
Here is a closer look at the terminology listed in this statute:
- “Human trafficking” refers to the transportation of men, women, and children against their will (referred to as modern slavery) (Title XLVI Chapter 878.06).
- “Official documentation” refers to documents provided by federal, state, or local agencies that reveal the applicant has been a victim of human trafficking.
- “Victim of human trafficking” refers to a man, woman, boy, or girl who has been victimized by individuals who supervised a human trafficking operation.
Individuals who have been victims of human trafficking may submit documentation for an eligibility certificate for criminal record expungement. Legal officials must prove without a doubt that this person was a victim and/or was being directed by the operator/instigator of this crime.
Automatic Expungement of Criminal Records for Minors
As indicated by FS Title XLVIII Chapter 943.0515 (1a-b), the Criminal Justice Information Program holds the authority to retain a juvenile offender’s criminal history who has been:
- Categorized as a seasonal criminal.
- Detained at a juvenile correction facility.
- Detained at a juvenile prison for a period of 5 years after the date the juvenile offender becomes 21 years of age (indicated under Chapter 985).
If the juvenile offender has not been listed as previously indicated (seasonal offender, detained at one of two locations), the records will be expunged after meeting all criteria.
Minors may apply for a certificate of eligibility for expungement before he or she reaches the age of 21, but he or she must be at least 18 years of age to apply. Likewise, the applicant must not have committed any crimes in a 5-year period prior to the date the application was filed. In the same manner as adult applicants, the juvenile applicant may file the certificate to the department.
As listed in Chapter 943.0515 (3), minors who are not approved for early expungement will have their records expunged at the age of 21 (if he or she meets all requirements).
In accordance with Chapter 943.0515 (2)(a), if the applicant has been charged with a forcible felony prior to the expungement of his or her juvenile record, the minor record will be combined with the adult record.
Applications for Early Juvenile Expungement
As indicated by Florida Statute Title XLVII Chapter 943.0515 (1)(b)2, individuals between 18 to 21 years of age (based on specific criteria) can complete an application by submitting required information to the FDLE. In that light, the applicant may apply to the local prosecuting attorney for the approval of his or her expungement of juvenile criminal history. However, this activity may only be completed if the applicant has not committed a crime in the past 5 years prior to the application.
Steps to Receive a Certificate of Eligibility for the Early Expungement of Juvenile Crimes in Florida
All requirements for early expungement of juvenile crimes in the State of Florida must meet the standards of Statute 943.0515 (1)(b)2. Keep in mind that the majority of these steps match the procedure that adults must follow as part of criminal expungement:
- Juvenile applicants must obtain and fill out an application for Early Juvenile Expungement. Files may be downloaded from the FDLE website or requested via email. Section A must be completed by the applicant and signed by a parent/guardian. The Office of the State Attorney or Statewide Prosecutor will fill out Section B.
- Juvenile applicants must submit fingerprint forms or fingerprint cards (as an alternative) as part of the application packet. The form must include the name, sex, date of birth, race, social security number, agency ORI, and valid signatures.
Applicants must pay a non-refundable processing fee of $75.00. Checks, money orders, or cashier’s checks are the only accepted forms of payment.