Can You Expunge a Criminal Record?

A criminal conviction carries a stigma but also presents numerous obstacles to anyone seeking to live a normal and productive life. Felony convictions pose especially difficult impediments since you lose certain rights or privileges accorded without any criminal convictions including your 2^nd Amendment right to own and possess firearms or to hold public office.

Expungement

An expungement is the purging of certain criminal arrest records. In Florida, you are only allowed to expunge a record of your criminal proceeding if the charges were dismissed before trial or you were acquitted of the offense or offenses you were charged with. If this occurred in your case, and you have no other criminal convictions from either Florida or any other state, then you may have these records expunged. The expungement will wipe out your arrest and case records.

Record Sealing

A record can be sealed if the court withholds adjudication of guilt in your case.  A withholding of adjudication refers to a court action that imposes a sentence of probation and perhaps a fine but does not rule that you have been convicted of that crime and instead withholds adjudication of guilt. Once you fulfill all conditions of your probation, the court is divested of its jurisdiction and there is no adjudication of any guilt.

When a record is sealed, it is no longer accessible to private individuals such as landlords and employers. You can also truthfully answer “no” if asked on any form or in response to a verbal inquiry if you are asked if you have ever been arrested or accused of a crime.

Sealed and expunged records are still available to public employers such as for law enforcement or court positions and if you wish to serve in the military. If you want to purchase a firearm, this record is accessible as well. Any felony conviction that was expunged in another state will make you ineligible to make a firearm purchase.

Process for Sealing and/or Expungement

You begin the process of sealing by filing an application with the Department of Law Enforcement or FDLE. You have to provide a set of fingerprints and a certified form of disposition of your case indicating that your case was either dismissed, resulted in an acquittal or that you were given a withhold of adjudication. You will also need an Affidavit in Support of the Petition to seal or expunge. You should seek the services of an experienced criminal defense attorney who has successfully handled record sealings and expunction cases to ensure this process is done correctly.

Juveniles who wish to have their records sealed before the age of 23 or 25 may also apply to the FDLE under the same conditions with certified records of the disposition that resulted in no conviction or completion of a diversion program.

The FDLE determines if the underlying offense is eligible for sealing or expungement. Once your records are reviewed, a process that can take up to 6 months, the FDLE will issue either:

• A Certificate of Eligibility to seal your case
• A Certificate of Eligibility to expunge your case
• A letter explaining that you are ineligible and why

Once issued, your petition for an order to seal or expunge your records will be filed in the jurisdiction where the arrest and proceedings occurred. Generally, no court appearance is required but if it is, you should have an attorney representing you since there will be issues and questions to be resolved that requires knowledge of the law involved and possible introduction of documentary and testimonial evidence. If the court grants the petition, a court order is sent to all law enforcement agencies that were involved.

Effects of an Expungement and Sealing

Although you may deny or attest without fear of committing perjury that you were ever accused or arrested, you do have to disclose your arrest record if asked if applying for:

• Change in immigration status
• Seeking employment with a criminal justice agency
• Employment or contracting with the Department of Children and Family Services, Department of Education, private or public schools, access to a seaport, admission to the Florida state bar and licensed child care facilities

Although public databases will not have your arrest and case records available for viewing, the court order does not apply to private and federal databases. It is possible that a private employer or landlord could have access to at least a private database that contains your criminal records. Otherwise, most landlords and private employers do not have access to these databases.

Discuss your case with an attorney who can advise you if your record is eligible for sealing or expungement under Florida law. If so, have the attorney assist you in obtaining the forms and documents needed and in preparing your petition or if you filed on your own and a hearing is scheduled.  This is a time-consuming process and any errors can result in substantial delays or a denial of your petition.