Frequently Asked Questions
- What is the difference between the sealing and expunging a criminal record?
When a record is sealed, the public will no longer have access to the record through the government database. For purpose of employment background checks, this means most employers will not have access to the information. However, please be aware that city, county, state and federal government agencies will continue to have access to your criminal record.
- If I have a criminal history record sealed or expunged, can I legally deny that I was ever arrested?
Yes. Except for when applying to the above mentioned agencies. Florida Statutes are very specific as to when you cannot deny arrest or entry of plea after a sealing. Examples are applications to medical school, if you are trying to become a lawyer or a police officer.
- What are the qualifications to have a criminal history record sealed?
An individual may have a record sealed as long as they have no criminal convictions on their record. If the individual had the adjudication of guilt withheld they are eligible to have it sealed as long as the charge is not one that is listed in §907.041.
- What are the qualifications to have a criminal history record expunged?
the charges have to be dropped, dismissed, nolle pros, no information, etc. and the State Attorney has to fill out Section B of the application in order to be approved for an expunction.
- What does it mean to be convicted?
When we get a phone call from a potential client asking about expunging or sealing their criminal record, we always ask “have you been convicted?” Unfortunately, many times the person calling does not fully understand what happened and is likely confused about the exact outcome of his or her case. The real question is “were you adjudicated guilty?” If at the end of the case, the person entered a plea of guilty or no contest (nollo contendre), there are two possibilities here. The first is the Judge would “adjudicate the person guilty,” which means a conviction, or the Judge could “withhold adjudication.” The difference between the two will mean whether or not you can seal or expunge your record. If you have been convicted (adjudicated guilty) of a criminal offense you are not eligible to seal or expunge your criminal record. This applies not just to the offenses in question, but to any subsequent or prior offenses. A good example is when a person enters a plea to a Petit Theft, the Judge withholds adjudication. Several years pass and that person does not seal the record. One day the person gets a DUI and enters a plea. Under Florida law, if the person entered a plea to a DUI, it is a mandatory adjudication. What this means, is that now neither of the cases can be sealed.
- What is Adjudication Withheld?
Under Florida law the Judge can accept your plea of No Contest or Guilty, but not convict you. This is especially important in felony cases, and is usually negotiated with the state. Withhold of Adjudication is required in order to receive a sealing of your record. There are some exceptions, such as DUI.
- What offenses are not eligible for expungement or sealing?
- I have several arrests, can I seal and expunge all of them?
The short answer is No. Florida law provides for a once in a lifetime opportunity for a sealing or expungement. This applies to one incident. If you were arrested on multiple charges on the same date, and you qualify for a sealing, the entire case can be sealed. An example is the best way to demonstrate this. If John was arrested in 2010 for Petit Theft, and after entering a plea, the Judge withheld adjudication. This year, John was arrested again, but this time for Possession of Cocaine. He entered a no contest plea and was adjudicated guilty. Can he seal any of the cases? NO, because the second case was a conviction. If John sealed his case from 2010 right away, and after the sealing was granted he got a felony and was convicted, the prior sealing still stands. If, however, he entered a plea to the Possession of Cocaine, and the Judge withheld adjudication, he could then seal either but not both of the cases. Another scenario could be if the Possession of Cocaine was dropped. In this case, he could either seal the first one, or expunge the second one, but not both.
- I was arrested by mistake. Am I eligible for an expungement?
Florida law, specifically statute 943.0581 provides that a person who was arrested by mistake due to mistaken identity or against the law, may apply to have a non-judicial record expunged. The issue that our clients face is that this procedure calls for an affidavit by the chief of the law enforcement agency, sheriff, or department head of the state law enforcement agency admitting that the arrest was a mistake or was contrary to law. Many times the police do not want to admit their mistake.
- If I receive a full pardon can I have a record sealed or expunged?
No. A full pardon does not remove any condition of Ineligibility for sealing or expunging a criminal history record.
- If I have a record sealed or expunged in another state can I also have a Florida record sealed or expunged?
Yes. Effective July 1, 2013, the statute was changed to allow for a Florida expungement or sealing, even if you had one expunged or sealed outside of Florida (F.S. 943.0585 (1)(b)(3) and F.S.943.059(1)(b)(3)).
- If I have an out-of-state conviction, will that prevent me from having my Florida record sealed or expunged?
Yes. Any criminal conviction will prevent an individual from having a record sealed or expunged in the State of Florida regardless of whether that conviction occurred within the state or outside the state.
- Can I have more than one date of arrest sealed or expunged?
No. The statutes proved for relief only once in a lifetime unless both dates of arrest can be shown to be directly related to one another (i.e., FTA, VOP, etc.).
- Does the issuance of a certificate mean that my record will be ordered sealed or expunged?
No the issuance of a certificate does not guarantee that your record will be ordered sealed or expunged. This only indicates to the court that you are eligible for expungement or sealing. The decision to seal or expunge your record rests solely in the hands of the presiding judge.
- If I had a criminal history record sealed and then had it vacated, could I apply to seal another record?
You can always apply, however your application would be denied. Florida law specifically provides that one of the requirements is that you have never had your record sealed or expunged. The vacated charge would still count.
- Can I have one date of arrest sealed and another expunged?
No. This can only be done once in a lifetime. So, you should choose carefully as to what case you want to seal or expunge. For example, if you went through a Diversionary program and the case was dropped, but five years later you received a Possession of Cocaine charge, and had adjudication withheld, it would be more beneficial to seal the felony.
- How long will it take to seal or expunge my record?
The process can be lengthy and requires precision. We will help you every step of the way. There are a lot of variables that go into the time required to have a case sealed or expunged. For example, since expungement has an extra step of getting the application approved through the State Attorney’s Office, the expungement process can take a little longer. A safe estimate of the entire process would be between four to six months, before your record is no longer available to the general public.
- Will I be required to appear in court?
In the majority of cases, the prosecutor will not object to the petition of sealing or expungement and consequently you will not need to appear in court. If a hearing is requested by the State, meaning they object to the sealing, it is best that you appear for that hearing. It is important to show the court that this is a very important step for you and you take the case very seriously. If the hearing becomes necessary, and you would like for our office to represent you, we will require a $500 appearance fee, and mileage may also be charged to certain counties. It is your choice whether or not you would like to represent yourself, and we can walk you through that process. Call us to discuss your case.
- What items are necessary to have an application processed?
There are four main items that must be included in an application package:
- A completed (signed and notarized) application,
- A $75 processing fee,
- A certified disposition, and
- A legible set of fingerprints.
- Is my $75 processing fee refundable?
No. Once it is paid to FDLE, even if you are denied, the fee is not refundable.
- How long does it take to receive the response from the State Attorney’s Office on my expungement application?
It usually takes between 2-4 weeks to receive a response.
- When I receive my certificate of eligibility from FDLE, does that mean my record is sealed or expunged at that time?
No. Once you receive the certificate, you will need to file a petition with the clerk’s office in the county in which you were arrested. Once a court order has been signed and a certified copy is received by FDLE, only then your record will be sealed or expunged.
- Who is entitled to receive sealed information?
There are several agencies entitled to receive information:
- Any and all law enforcement
- The Florida Bar
- Teacher Certificate
- Agency for Heath Care Administration
- Do I have to apply for a Certificate of Eligibility to have my juvenile record sealed or expunged?
The process is essentially the same, however it is governed by a different statute (943.0582). Please note that the term “expunction” as used in s.943.0582, F.S., differs significantly in operation and effect from the term “expunction” as used in s.943.0585, F.S. More importantly, having your record expunged under this section will not prohibit you from expunging or sealing a later record, which you acquired as an adult.
- What is disseminated on a sealed or expunged record?
After the record is sealed, the information about the arrest and plea is disseminated only to the agencies listed in Florida Statute 943.059. If the agency running the background check is not listed in the statute, they are not entitled to that information and it will not be provided.
After the record is expunged the information about the charge and arrest is not disseminated. But, according to FDLE the agency requesting the information will receive a notification that a record has been expunged, if that agency is entitled to this information under Florida Statute 943.0585. If the agency is not on the list in the statute, it will not be provided the expunged notification.
As to Juvenile criminal record, if it has not been sealed or expunged, it will only be disseminated when the person is arrested for a new offense that would be a felony if committed by an adult.
- Does sealing/expungement of my record, impact my ability to get a firearm?
In Florida, even if your record is sealed, according to FDLE you sealed record is still relevant in determining your eligibility to purchase firearms.
Even if your arrest happened a long time ago, when it comes to the purchase of firearms, Florida law does not have a statute of limitations. This means that every arrest is relevant to determine your eligibility to purchase a firearm in Florida.
Juvenile records may also affect your ability to purchase a firearm. If teh person was adjudicated delinquent or received Adjudication Withheld as a juvenile for a felony offense, it is possible their application for a purchase of firearm would be denied, until the person reached the age of 24.
WE CAN HELP YOU!
Contact our office today to speak with an experienced attorney about how we can help you with expungement or sealing of your criminal record.
Jacksonville, FL 32217