Sealing and Expunging

Before considering hiring an attorney to seal or expunge your record, you should understand whether your offense is one that is prohibited from consideration, or whether your disposition prevents you from expunging initially but allows for sealing. The list of offenses that the Florida Department of Law Enforcement (FDLE) will not consider is at the bottom of this page. FDLE determines whether an individual qualifies for a certificate of eligibility.

Expunging versus sealing

Expunging is the ultimate remedy, since the records are destroyed and only under limited circumstances are you required to acknowledge the existence of the arrest or disposition. However, if you pled to any of the original charges that arose from the incident, expunging would not be the initial option. Often an individual charged with a felony pleads to a reduced misdemeanor.

Sealing would then potentially be the initial option, but only if the sentence included a withhold of adjudication, as an adjudication of guilt prohibits applying for either sealing or expunging. Sealing allows the records to be unsealed only upon a valid motion, and permits the defendant to lawfully deny the arrest. An individual may seek to expunge a record that has been sealed for ten years.

The process

Both sealing and expunging require a certificate of eligibility from the Florida Department of Law Enforcement, after submitting a proper application with the required fingerprints, certified court documents and the application fee.

Sealing does not initially require involvement from the Office of the State Attorney. If you are seeking to expunge a case, however, the application must first go to the State Attorney that prosecuted, or declined to prosecute, your case before it goes to FDLE. That step typically adds about a month to the average 6 to 8 months it takes to obtain the certificate, file the motion or petition, and wait for the court's ruling.

Once the court grants the petition, an additional payment to the clerk is required to send the order to seal or expunge to the arresting police agency, the sheriff's office in charge of the jail, and the parties.

Juvenile offenders

Expunging a juvenile case after completion of a diversion program, which must be done within six months of completion, does not count as a prior expungement. This is extremely important for your future ability to seal or expunge a later arrest, as a juvenile or an adult.

Disqualifying charges for expunction or sealing

A request for a certificate of eligibility for an expunction or sealing of a criminal history record will be denied if the defendant was found guilty or pled guilty or nolo contendere, even if adjudication of guilt was withheld, on any violation of the following:

• Offenses listed in s. 907.041, F.S.: arson; aggravated assault; aggravated battery; illegal use of explosives; child abuse or aggravated child abuse; abuse 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 12 years of age or older but less than 18 years of age, by or at the solicitation of a person in familial or custodial authority; burglary of a dwelling; stalking and aggravated stalking; an act of domestic violence as defined in s. 741.28, F.S.; home-invasion robbery; an act of terrorism as defined in s. 775.30, F.S.; manufacturing any substances in violation of chapter 893; and attempting or conspiring to commit any of these crimes
• s. 393.135, F.S.: sexual misconduct with a developmentally disabled person and related offenses
• s. 394.4593, F.S.: sexual misconduct with a mental health patient and related offenses
• s. 787.025, F.S.: luring or enticing a child
• Chapter 794, F.S.: sexual battery and related offenses
• s. 796.03, F.S.: procuring a person under 18 for prostitution
• s. 800.04, F.S.: lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
• s. 810.14, F.S.: voyeurism
• s. 817.034, F.S.: Florida Communications Fraud Act (scheme to defraud or organized fraud)
• s. 825.1025, F.S.: lewd or lascivious offense upon or in the presence of an elderly or disabled person
• s. 827.071, F.S.: sexual performance by a child
• Chapter 839, F.S.: offenses by public officers and employees
• s. 847.0133, F.S.: showing, selling, etc., obscene literature to a minor
• s. 847.0135, F.S.: computer pornography
• s. 847.0145, F.S.: selling or buying of minors
• s. 893.135, F.S.: trafficking in controlled substances
• s. 916.1075, F.S.: sexual misconduct with a mentally deficient or mentally ill defendant and related offenses
• Any offense that qualifies for registration as a sexual predator under s. 775.21, F.S., or as a sexual offender under s. 943.0435, F.S.

All references are to the Florida Statutes. [Daniel to confirm: this list is carried over from the current site; check it against the current statutes before publishing]