Expungement

Everyone makes mistakes in life. But sometimes, those mistakes have severe consequences if they involve the commission of a crime. And every time a person is arrested and booked, a criminal record is created. The record becomes public and creates many problems in anindividual’s personal and professional life. These problems will be there long after you’re free from the courts. What’s more, the Florida Department of Law Enforcement (FDLE), provides most of its records to the public. Furthermore, background check sites offer inexpensive and easy access to potential employers, landlords, lenders, and anybody with an internet connection. A criminal record can prevent you from getting the housing you want, qualifying for government programs and services, obtaining professional licenses, getting approved for college education, landing a good job, getting a low-interest loan, and countless opportunities that would be available if you did not have a criminal record.

The good news is that you can expunge your criminal record and restore your good name. This involves following a very strict process, but not everyone automatically qualifies to have their record expunged. You need the help of a knowledgeable criminal defense attorney to determine your eligibility and begin the expungement process. At Arnold Law, we’re well-versed in the legal processes and procedures involved in obtaining an order to expunge your criminal record in Florida. Whether you were arrested as an adult or a juvenile, we’re committed to helping you pursue a fresh start in life. Contact us anytime, 24/7 at 904-264-3627, for a free, confidential consultation.

What is Expungement?

Expungement is when a court orders criminal records to be physically destroyed. As a result of this order, the prosecutor, the courts, and law enforcement agencies must physically destroy all records related to your case. However, the Florida Department of Law Enforcement (FDLE) retains a copy of your criminal history, which can be disclosed to law enforcement on a limited basis. All government entities who have possession of your record will be informed that you have had your record expunged, and they can also have access to it with a court order.

In Florida, there are several types of expungements available, including:

• Administrative Expungement
• Court-Ordered Expungement
• Juvenile Expungement
• Diversion Program Expungement
• Human Trafficking Victim Expungement
• Self-Defense Expungement

What are the Differences Between Record Expunction and Record Sealing?

While these two terms are often used interchangeably, they are not the same thing. When a criminal record is sealed, it means it has been placed under highly restricted access away from the public view. As such, the majority of employers, money lenders, and insurance providers will not be able to access that information. However, sealed records may be accessed by governmental agencies, including the military and the police.

Conversely, an expunged record,has been physically and electronically removed from the record systems. It also means that your criminal record will be destroyed and the information erased from the police computers and from the clerk of court computers. Expungement is the best option because your criminal records will no longer haunt you the way they did before.

The Benefits of Record Expunction

The main benefit of having your criminal record expunged lies in the fact that you can legally deny that you’ve never been convicted. Other benefits of expungement include:

• An expungement allows you to retain your professional certificates and licenses
• An expungement allows you to legally state on a job application that you have never been convicted of a crime. This allows you to pursue your dream job without fear.
• An expungement could shorten the firearm purchasing and ownership restrictions
• It can potentially improve your credit rating
• It can decrease your chances of having a rental application denied based on your criminal record
• It can make you eligible for educational, financial assistance

Situations Where You Will Have to Disclose that Your Record was Expunged

As mentioned above, you can legally lie about your prior criminal record once the record has been expunged. But there are some exceptions regarding whom you are obliged to disclose your expungement to, and under what circumstances. Even with an expungement, you cannot deny or fail to acknowledge or deny the arrest in the following situations:

• If you’re applying for admission to The Florida Bar.
• You’re applying for work with a criminal justice agency.
• You’re a candidate for employment with law enforcement.
• You’re applying for employment with the Department of Juvenile Justice, the Department of Education, or the Department of Children and Family Services, or the Agency for Health Care Administration.
• You’re seeking employment or licensure by the Department of Education, any parochial school, any charter school, any private school, any district school board, any university, any local governmental entity that works with childcare facilities.
• You’re seeking authorization from a Florida seaport for employment or access to a seaport.
• You’re seeking to be employed or licensed in a position that involves having direct contact with children, the aged, or the developmentally disabled.
• You’re a defendant in an active criminal case.
• You’re seeking to be appointed as a guardian.
• You are petitioning for relief for another arrest record

What an Expungement Cannot Accomplish

Your expungement may or may not limit your right to purchase or own a firearm. However, your right could be reinstated if you have a non-violent felony conviction that was reduced to a misdemeanor. If you apply for a government-issued professional license, you’ll be obligated to reveal your arrest and expungement in your application. If you’re prohibited from holding a public office due to your original arrest, an expungement will not change that. If you’re an illegal immigrant, your arrest can be used by immigration officials when considering deportation. If you commit another crime, your expunged conviction may still be considered a “prior” for sentencing determination. What’s more, the Florida DMV may use your criminal record to suspend or revoke your driving privileges.

Eligibility for a Florida Expungement

As provided under Florida Statute Section 943.0585, a petition for expungement will only be recognized as complete if the petitioner meets the qualifications. You’re considered to be eligible for a Florida expungement if:

• You have never obtained a previous expungement or sealing, in any jurisdiction, including another state
• You entered a guilty or no contest plea, and the court withheld adjudication, but the offense is ineligible for expungement
• You have not been found guilty of another offense, crime, or violation prior to the date the certificate of eligibility was filed
• You’ve never been found guilty of a criminal offense
• As a juvenile, you were never adjudicated delinquent of a criminal charge
• You’re currently not under a court-ordered supervision or diversion program, such as PTI, MIP, community control, or probation.

Ineligible or Disqualifying Offenses

Certain offenses are not eligible for expungement, regardless of whether the court withheld adjudication. But if the charges were dropped or otherwise dismissed before trial, you may still be to have your criminal record expunged. Here is a list of ineligible criminal offenses:

• Sexual battery;
• Voyeurism;
• Sexual misconduct with a mentally ill or developmentally disabled person;
• Procuring a person under age 18 for prostitution;
• Luring or enticing a child;
• Lewd or lascivious acts committed on or in the presence of the elderly, a child, or disabled person;
• Lewd or lascivious assault in the presence of a child
• Sexual performance by a child;
• Sexual misconduct with mentally deficient or mentally ill;
• Sexual performance by a child;
• Computer pornography and meeting with a child
• Providing obscene material to minors;
• Selling or buying of minors for pornography;
• Sexual activity with a minor by a person in familial or custodial authority;
• Scheme to defraud;
• Arson;
• Acts of terrorism;
• Drug trafficking;
• Offenses by public officials or employees;
• Any acts of domestic violence, including domestic assault or domestic battery;
• Child abuse or aggravated child abuse;
• Stalking or aggravated stalking;
• Aggravated battery;
• Aggravated assault;
• Abuse or aggravated abuse of the elderly;
• Aircraft piracy;
• Carjacking;
• Home burglary;
• Robbery and home invasion;
• Prostitution;
• Illegal use of explosives;
• Aggravated abuse of a disabled adult;
• Manslaughter;
• Homicide;
• Violations of the Communications Fraud Act; or
• Attempting or conspiring to commit the above-mentioned crimes.

Additional issues that could make you ineligible for an expunction include: (1) having an expunge or seal petition pending in another case, (2) violating the terms of your probation, (3) having unsatisfied financial obligations ordered by the court, (4) owing community service hours, or (5) having a “withhold” converted to an “adjudication.”

Expunging More Than One Record

Residents of Florida are at a distinct disadvantage because the law entitles a citizen to only one seal or expunge in a lifetime. You may only petition one time even if you were acquitted by the jury. But technically, you can sneak in another one if the previous one was a juvenile record. If you have multiple arrests or cases, only one of those records will be destroyed (assuming all eligibility requirements are met).

There is one exception to this rule- multiple records may be sealed or expunged in the same court proceeding if the arrests are directly related. For this exception to apply, the offenses must stem from a single criminal incident or episode and must be temporally related. If the additional arrests or offenses do not derive from one episode or activity, the court does not have the authority to seal or expunge multiple records.

Records for criminal activities that occurred 10 years prior to the petition could also become eligible. What’s more, if you meet all the requirements and at least one year has passed since your conviction, and you successfully completed your sentence, you may qualify for an expunction.

Application for a Certificate of Eligibility for Crime Expungement

If you’re eligible for an expunction, you must receive a certificate of eligibility for the expungement of criminal records in order to petition the court, according to Chapters 943.0585 and 943.059. You must complete Section A of the application form in the preserve of a Notary Public or Deputy Clerk of the Court. You must complete the FDLE fingerprint form. Your fingerprints should be taken by an authorized law enforcement officer and submit the fingerprint card with the application.Your form must include your name, race, sex, date of birth, agency ORI, and social security number. The next step involves providing a certified disposition of the case that will be sealed or expunged, obtained from the Clerk of Court or arresting agency.If applicable, you must submit a certified copy or Termination of probation, and pay the non-refundable fee of $75 via check, money order, or cashier’s check. You must submit these documents before the listed date of expiration.

What if the Application is Denied?

If you believe your denial was based on information that was inaccurate or incomplete, you can ask for a review. You must follow the right procedure for review and correct your records, as provided by Florida law. If you have reason to believe that you submitted the correct critical history records, but the law has been incorrectly applied to your case, you can choose to appeal the decision.

Expungement of Juvenile Records

Florida has an automatic expunction of juvenile arrest records, without any petition or request being filed. Once the records are expunged, they cannot be classified as a prior expunge for purposes of having an adult arrest record expunged. Also, if juvenile criminal charges are dropped after the successful completion of a juvenile diversion program, the expunction of those records will not count as a prior expunge, which would otherwise make a petitioner ineligible for a judicial expunction.

Juvenile records are usually reserved by the Criminal Justice Information Program (CJIP) until the offender turns 24 or 26, depending on prior arrest or conviction as an adult. However, juveniles who complete a diversion program may be eligible for expunction sooner than that time. Exceptions for automatic juvenile expunction include:

• Serious Juvenile Record Exception: According to Florida Statute Section 943.0515(1), the CJIP will retain juvenile records until the offender’s 26th birthday if he or she is classified as:
  • Serious juvenile offender,
  • Habitual juvenile offender,                      
  • Committed to a juvenile prison for 5 years after their 21st birthday, or
  • Committed to a juvenile correctional facility.
• Forcible Felony Exception: If an individual is over the age of 17 and charged with or convicted of a forcible felony before the automatic expunction of their juvenile record, his/her juvenile record will be combined with the adult record. Additionally, if a minor child is, at any time, adjudicated as an adult for any forcible felony, the record for adjudication as an adult will be merged with the juvenile criminal record.
• Adjudication Delinquent for Any Juvenile Offense: Irrespective of the provisions named above, juvenile records shall be maintained if the juvenile is adjudicated delinquent for the offense. As such, the records become ineligible to ever be expunged and are merged with adult records. The person also becomes ineligible to expunge an adult criminal record.

Juvenile Diversion Expungement

As provided by Florida Statute 943.0582, the non-judicial record of a juvenile who has taken part in a diversion program due to misdemeanor charges can be eligible for expunction. If a juvenile successfully completes a prearrest or postarrest diversion program,the court may expunge the non-judicial arrest record no later than 12 months after the completion of the diversion program.

Once expunged, the juvenile records will no longer pop up in a background check. However,criminal justice agencies will be given the applicant’s criminal history for:

• Active criminal investigations
• Determining eligibility for diversion programs
• As part of a prosecutorial decision

Expungement on the Grounds of Human Trafficking

Florida Statute 943.0583 allows for victims of human trafficking to apply for eligibility for expungement of criminal acts committed while being trafficked. It’s important to note that unlike the general expungement statute, an individual’s prior criminal history will not make human victim trafficking ineligible for expunging the criminal records. Under this law, a victim of human trafficking is defined as any person coerced into providing free labor or performing commercial sexual activity.

To be eligible to expunge a criminal record under such circumstances, the individual must have:

• Been a victim of human trafficking,
• Committed an eligible criminal offense, and
• Exercised due diligence in applying for expungement.

The human trafficking victim expungement statute allows for the destruction of records of any non-violent criminal offenses. However, most violent felony offenses are ineligible to be expunged.

For the certificate of eligibility to be approved, legal officials must prove beyond a reasonable doubt that the individual was a victim of human trafficking and/or was under the direction of the person running the human trafficking operation. This means that the victim must present clear and convincing evidence of victimization. If there’s no official documentation, the victim would have to submit a sworn statement covering their unreported victimization.

A human trafficking victim must initiate the expungement process with due diligence after the coercive acts have stopped.In order to determine due diligence, courts will consider the amount of time that has passed since the person was victimized or sought social service.

Lawful-Defense Expungement

Florida law breaks lawful self-defense into three categories: defense of a person, defense of property, and defense of home. To qualify for this type of expungement, the person must be in a place he/she has a right to be and must not be engaged in any criminal activity. As provided by Section 776.012 of Florida Statutes, you can legally use or threaten to use deadly or non-deadly force against another if you reasonably believe that such conduct is necessary to defend yourself or another person, prevent imminent death or great bodily injury or prevent the imminent use of unlawful force to commit a felony.

Self-defense also includes real property, including your home, a family member’s property, or any other property you have a duty to protect. To be eligible for this type of expungement, there’s the requirement that the charges were not filed or were dismissed or dropped based on the finding that you acted in self-defense.

Getting Rid of the Mug Shot After an Expungement in Florida

The photograph customarily taken after an arrest (mugshot) becomes a public record. And every person has the right to copy or inspect any public record in connection with the official business of a public officer, agency, or employee of the government. Most municipal and county law enforcement agencies post-booking photographs on their websites. This provides an opportunity for data mining companies to scour public records and post the mugshots on their private websites. The presence of these photos on the internet can cause many problems even if the charges are later dropped or they’re acquitted at trial. Unfortunately, search engines often return the mugshot photo as one of the top results. Many employers, educational institutions, and professional organizations may turn someone away because of a mugshot.

Some of the data mining companies will remove the mug shot form their website, but they may charge a very expensive fee for that. What’s more, the company may just transfer the photo to a sister website. This is no longer the case. A new law that became effective in July 2018 makes it illegal for websites to charges fees for removing arrest booking photographs. Refusing or failing to remove a mugshot is now considered a violation of Florida’s trade practice laws. A website that fails to comply within 10 days will face a $1,000 a day fine, plus attorneys’ costs and court fees.

An attorney can help you write a demand letter to the mugshot photo hosting company, stating reasons for requesting the removal of the photo and the legal consequence of failing to take down the photo in a reasonable time. In the event where your criminal record has been expunged, demand letters can be very effective. At Arnold Law, we have successfully helped many clients get rid of their mugshots and move on with their life after their criminal record has been expunged. We stand ready to spare you the stress of dealing with data mining companies. Let us do it for you.

Let Us Help You Go Further in Life. Contact Us Today

A criminal record can affect your professional and personal life for years after your arrest. To move from your past mistakes, you need to have a clean slate. The Florida expungement attorneys at Arnold Law offer skilled, zealous representation to individualsseeking to expunge their criminal records.We believe in second chances and are committed to putting our 43 years of experience to work and make that happen. In each case, we provide the highest caliber of representation from start to finish in order to achieve positive results.

If you have a criminal record you would like to have expunged;please contact Arnold Law at 904-264-3627 to schedule a free consultation with a seasoned Florida expungement attorney.