As a criminal defense attorney in Broward County, I receive dozens of phone calls every year concerning the eligibility requirements to seal or expunge a criminal matter. Although I have written articles previously on the subject, I think it is important to revisit one specific issue, “Why the State of Florida would deny an individual’s application to seal or expunge a criminal matter?”
The Florida Department of Law Enforcement (FDLE) provides a service through which certain criminal records can be expunged (removed from their records) or sealed (placed under highly restricted access) provided all other eligibility requirements are met. Importantly, an individual is eligible to have their record sealed, but not expunged, if they received a withheld of adjudication to any eligible charge or an acquittal (not guilty verdict) after trial. Even though a withheld of adjudication is not considered a conviction, a withheld of adjudication will preclude an individual from having their record expunged, unless this record has been sealed for 10 years. A charge which was dismissed before trial (e.g., no information, nolle prosequi, no bill, etc.) may be expunged immediately, however.
FDLE makes the ultimate decision on whether an individual is eligible to seal or expunge a criminal matter. Some common reasons for denial include:
- The criminal history record reflects that the individual has been adjudicated guilty of any criminal offense. Such offenses include, but are not limited to, DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked. Please note, in Florida the Courts are required to adjudicate guilty any individual who pleas to a DUI; OR
- The criminal history record reflects that the individual has received a prior sealing or expunction of a criminal history.
FDLE will automatically disqualify an individual seeking sealing or expunction if the individual was found guilty or pled guilty of no contest, even if the adjudication of guilt was withheld, on any violation of the following:
- 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
- Sexual Battery
- 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 or at solicitation of a person in familial or custodial authority
- Burglary of a dwelling
- Stalking and Aggravated Stalking
- Act of Domestic Violence
- Home-invasion Robbery
- Act of Terrorism
- Manufacturing any substances in violation of chapter 893
- Attempting or conspiring to commit any of the above crimes
Significantly, even a withhold of adjudication to a misdemeanor act of domestic violence or stalking will make an applicant ineligible to seal or expunge their criminal record. I have seen many defense attorneys commit malpractice by incorrectly advising their clients that they can seal their criminal record after accepting a plea to a misdemeanor domestic battery or stalking charge.
Although an individual does not need an attorney to petition the Court to seal or expunge their criminal record, it is my recommendation to hire an experienced criminal defense attorney to handle this matter for you. Most attorneys in Florida will charge anywhere between $500.00 – $1,000.00 plus costs to seal or expunge a criminal case, depending on the County of the underlying charge. As correctly sealing or expunging your criminal record could be one of the most important decisions an individual makes in their lifetime, it is beneficial to make sure it is done properly.
The author Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida. Fort Lauderdale criminal defense lawyer Philip M. Snyder handles all criminal defense matters including sealing and expungments, domestic violence and restraining orders. The Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316. Telephone: 954.462.8035. http://www.lyonssnyder.com/; http://wiltonmanorsattorney.com