Sealing and Expunging a Criminal Record

Expungements Lawyer in St. Petersburg 

Florida law allows for a person's criminal history record to be sealed or expunged under certain circumstances. Whether you were arrested in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, or Bradenton, the applicable rules are the same, but the procedures may vary slightly. Sealing or expunging a criminal history record can be of tremendous benefit to a person as the record is concealed from the public view and, under most circumstances, the person can lawfully deny the arrest. This section outlines the main differences between sealing and expunging a record, exceptions to the right not to disclose the record's existence, and the types of offenses that will disqualify a person from petitioning in the first place.

Sealing a Criminal record

A criminal history record of a minor or adult which is ordered sealed by a court of competent jurisdiction under this section is confidential and is available only to the person who is the subject of the record, to that person's attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history record background check for approval of firearms purchases, or to judges in the state court system for the purpose of assisting them in their case-related decision making responsibilities.

The person who is the subject of a criminal history record that is sealed may lawfully deny or fail to acknowledge the arrest or arrests covered by the expunged record, except where the person:

1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under Fla. Stat. § 943.0585, § 943.0583 or § 943.059;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for persons with Disabilities, the Department of Health, the Department of Elderly Affairs, 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 disabled or the elderly, or
6. 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.

To qualify for sealing, the person making application:

1. Must never have been adjudicated guilty of a criminal offense or comparable ordinance violation, or have been adjudicated delinquent (as a juvenile) for committing any felony or any of the following misdemeanor offenses: (a) Assault; (b) Battery; (c) Carrying a Concealed Weapon; (d) Open carrying of a weapon; (e) exposure of sexual organs; (f) Unlawful possession of a firearm; (g) Petit theft; or (h) Cruelty to animals.
2. Must not have been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains;
3. Has never secured a prior sealing or expunction.

Expunging a Criminal Record

Any criminal history record of a minor or an adult which is ordered expunged by a court of competent jurisdiction must be physically destroyed or obliterated by any criminal justice agency having custody of such record. Any criminal history record in the custody of the Florida Department of Law Enforcement, however, must be retained in all cases. A criminal history record ordered expunged that is retained by the FDLE is confidential and not available to any person or entity except upon order of a court of competent jurisdiction.

The person who is the subject of a criminal history record that is expunged may lawfully deny or fail to acknowledge the arrest or arrests covered by the expunged record, except where the person:

1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under Fla. Stat. § 943.0585, § 943.0583 or § 943.059;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for persons with Disabilities, the Department of Health, the Department of Elderly Affairs, 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 disabled or the elderly, or
6. 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.

To qualify for expunction, the person making application:

1. Must never have been adjudicated guilty of a criminal offense or comparable ordinance violation, or have been adjudicated delinquent (as a juvenile) for committing any felony or any of the following misdemeanor offenses: (a) Assault; (b) Battery; (c) Carrying a concealed weapon; (d) Open carrying of a weapon; (e) Exposure of sexual organs; (f) Unlawful possession of a firearm; (g) Petit theft; or (h) Cruelty to animals.
2. Must not have been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains;
3. Must not have secured a prior sealing or expunction.

Disqualifying Offenses

A criminal history record that relates to a violation of any of the following offenses may not be sealed or expunged, even where adjudication of guilt was withheld, if the person pled guilty or no contest:

1. Sexual misconduct with persons with development disabilities under Fla. Stat. § 393.135;
2. Sexual misconduct by an employee of the Department of Children and Families, as set forth in Fla. Stat. § 394.4593;
3. Luring or Enticing a Child under Fla. Stat. § 787.025;
4. Any violation of section 794 (Sexual battery);
5. Procuring a person under the age of 18 for prostitution under Fla. Stat. § 796.03;
6. Lewd or lascivious Offenses committed on or in the presence of persons less than 16 years of age under Fla. Stat. § 800.04;
7. Voyeurism, under Fla. Stat. § 810.14;
8. A violation of the Florida Communications Fraud Act under Fla. Stat. § 817.034;
9. Lewd or lascivious offenses committed upon or in the presence of an elderly or disabled person under Fla. Stat. § 825.102(5);
10. Sexual performance by a child, under Fla. Stat. § 827.071;
11. A violation of section 839 (relating to offenses by public officers and employees);
12. Distributing or showing obscene material to a minor under Fla. Stat. § 847.0133;
13. Computer pornography offenses involving minors under Fla. Stat. § 847.0135;
14. A violation of Fla. Stat. § 916.1075;
15. A violation of any offense enumerated in 907.041, as follows:

• 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 a person in familial or custodial authority;
• Burglary of a dwelling
• Stalking and aggravated stalking
• An act of domestic violence as defined in Fla. Stat. § 741.28
• Home invasion robbery
• An act of terrorism as defined in Fla. Stat. § 775.30
• Manufacturing any substances in violation of section 893
• Attempting or conspiring to commit such crime

It should also be noted that neither a DUI charge or a Fleeing and Eluding charge can be sealed or expunged if a plea is entered (guilty or no contest) or there has been a finding of guilt by a judge or jury. Unlike other types of offenses, the court has no discretion to withhold adjudication on a DUI or a Fleeing and Eluding.

Resources

1. Florida Deaprtment of Law Enforcement (Main)
2. Florida Deaprtment of Law Enforcement (Criminal History Records Check)
3. Florida Department of Law Enfocement (Sealed Expunged Records Section)

To discuss your matter, and whether you qualify (or will qualify) to have any resulting criminal history record sealed or expunged, contact our St. Petersburg office to set up a consultation.