How would someone get their criminal record expunged in Florida?

Full Question:

About 5 1/2 years ago my son-in-law was caught with a small amount of marijuana. The State of Florida entered a NOLLE PROSEQUI/NO INFORMATION (DISMISSAL) dismissing all charges due to 1K Completed Deferred Prosecution. He and my daughter are now trying to rent an apartment and they want him to get this charge expunged. Is this really necessary?
05/13/2009   |   Category: Criminal ยป Expungement ...   |   State: Florida   |   #16659

Answer:

To have records expunged in FL, the petitioner must show he has never secured a prior sealing or expunction of a criminal history record under s. 943.0585, former s. 893.14, former s. 901.33, or former s. 943.058, unless expunction is sought of a criminal history record previously sealed for 10 years pursuant to paragraph (h) and the record is otherwise eligible for expunction. Florida statutes provide for a request for clemency, which may restore rights such as voting priveleges, but does not expunges records.

Even though a successfully completed deferred adjudication will ultimately result in charges being dismissed by the criminal court, it is extremely important to take note of the fact that two very important records will typically remain in existence and will be viewable by the general public for the rest of that person's life. These two records are:

(1) The original arrest record which contains the arresting officers notes, reports, etc. This arrest record will also usually contain police investigator's notes, photographs, confessions, or any other evidence seized or testimony taken during an arrest

(2) The record of the action of the court. This document is usually the order of probation that you, the defendant signed in order to qualify for deferred adjudication. This paper, with your signature on it, also contains your plea of guilty or "nolo contendere" (no contest).

The following are FL statutes:

943.0585 Court-ordered expunction of criminal history
records. —

The courts of this state have jurisdiction over their
own procedures, including the maintenance, expunction, and
correction of judicial records containing criminal history
information to the extent such procedures are not
inconsistent with the conditions, responsibilities, and
duties established by this section. Any court of competent
jurisdiction may order a criminal justice agency to expunge
the criminal history record of a minor or an adult who
complies with the requirements of this section. The court
shall not order a criminal justice agency to expunge a
criminal history record until the person seeking to expunge
a criminal history record has applied for and received a
certificate of eligibility for expunction pursuant to
subsection (2). A criminal history record that relates to a
violation of s. 393.135, s. 394.4593, s. 787.025,
chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034,
s. 825.1025, s. 827.071, chapter 839, s. 847.0133,
s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a
violation enumerated in s. 907.041, or any violation
specified as a predicate offense for registration as a
sexual predator pursuant to s. 775.21, without regard to
whether that offense alone is sufficient to require such
registration, or for registration as a sexual offender
pursuant to s. 943.0435, may not be expunged, without regard
to whether adjudication was withheld, if the defendant was
found guilty of or pled guilty or nolo contendere to the
offense, or if the defendant, as a minor, was found to have
committed, or pled guilty or nolo contendere to committing,
the offense as a delinquent act. The court may only order
expunction of a criminal history record pertaining to one
arrest or one incident of alleged criminal activity, except
as provided in this section. The court may, at its sole
discretion, order the expunction of a criminal history
record pertaining to more than one arrest if the additional
arrests directly relate to the original arrest. If the court
intends to order the expunction of records pertaining to
such additional arrests, such intent must be specified in
the order. A criminal justice agency may not expunge any
record pertaining to such additional arrests if the order to
expunge does not articulate the intention of the court to
expunge a record pertaining to more than one arrest. This
section does not prevent the court from ordering the
expunction of only a portion of a criminal history record
pertaining to one arrest or one incident of alleged criminal
activity. Notwithstanding any law to the contrary, a
criminal justice agency may comply with laws, court orders,
and official requests of other jurisdictions relating to
expunction, correction, or confidential handling of criminal
history records or information derived therefrom. This
section does not confer any right to the expunction of any
criminal history record, and any request for expunction of a
criminal history record may be denied at the sole discretion
of the court.

(1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD. — Each
petition to a court to expunge a criminal history record is
complete only when accompanied by:

(a) A valid certificate of eligibility for expunction issued
by the department pursuant to subsection (2).

(b) The petitioner's sworn statement attesting that the
petitioner:

1. Has never, prior to the date on which the petition is
filed, been adjudicated guilty of a criminal offense or
comparable ordinance violation, or been adjudicated
delinquent for committing any felony or a misdemeanor
specified in s. 943.051(3)(b).

2. Has not been adjudicated guilty of, or adjudicated
delinquent for committing, any of the acts stemming from the
arrest or alleged criminal activity to which the petition
pertains.

3. Has never secured a prior sealing or expunction of a
criminal history record under this section, former
s. 893.14, former s. 901.33, or former s. 943.058, or from
any jurisdiction outside the state, unless expunction is
sought of a criminal history record previously sealed for
10 years pursuant to paragraph (2)(h) and the record is
otherwise eligible for expunction.

4. Is eligible for such an expunction to the best of his or
her knowledge or belief and does not have any other petition
to expunge or any petition to seal pending before any court.

Any person who knowingly provides false information on such
sworn statement to the court commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084.

(2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION. — Prior to
petitioning the court to expunge a criminal history record,
a person seeking to expunge a criminal history record shall
apply to the department for a certificate of eligibility for
expunction. The department shall, by rule adopted pursuant
to chapter 120, establish procedures pertaining to the
application for and issuance of certificates of eligibility
for expunction. A certificate of eligibility for expunction
is valid for 12 months after the date stamped on the
certificate when issued by the department. After that time,
the petitioner must reapply to the department for a new
certificate of eligibility. Eligibility for a renewed
certification of eligibility must be based on the status of
the applicant and the law in effect at the time of the
renewal application. The department shall issue a
certificate of eligibility for expunction to a person who is
the subject of a criminal history record if that person:

(a) Has obtained, and submitted to the department, a
written, certified statement from the appropriate state
attorney or statewide prosecutor which indicates:

1. That an indictment, information, or other charging
document was not filed or issued in the case.

2. That an indictment, information, or other charging
document, if filed or issued in the case, was dismissed or
nolle prosequi by the state attorney or statewide
prosecutor, or was dismissed by a court of competent
jurisdiction, and that none of the charges related to the
arrest or alleged criminal activity to which the petition to
expunge pertains resulted in a trial, without regard to
whether the outcome of the trial was other than an
adjudication of guilt.

3. That the criminal history record does not relate to a
violation of s. 393.135, s. 394.4593, s. 787.025,
chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034,
s. 825.1025, s. 827.071, chapter 839, s. 847.0133,
s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a
violation enumerated in s. 907.041, or any violation
specified as a predicate offense for registration as a
sexual predator pursuant to s. 775.21, without regard to
whether that offense alone is sufficient to require such
registration, or for registration as a sexual offender
pursuant to s. 943.0435, where the defendant was found
guilty of, or pled guilty or nolo contendere to any such
offense, or that the defendant, as a minor, was found to
have committed, or pled guilty or nolo contendere to
committing, such an offense as a delinquent act, without
regard to whether adjudication was withheld.

(b) Remits a $75 processing fee to the department for
placement in the Department of Law Enforcement Operating
Trust Fund, unless such fee is waived by the executive
director.

(c) Has submitted to the department a certified copy of the
disposition of the charge to which the petition to expunge
pertains.

(d) Has never, prior to the date on which the application
for a certificate of eligibility is filed, been adjudicated
guilty of a criminal offense or comparable ordinance
violation, or been adjudicated delinquent for committing any
felony or a misdemeanor specified in s. 943.051(3)(b).

(e) Has not been adjudicated guilty of, or adjudicated
delinquent for committing, any of the acts stemming from the
arrest or alleged criminal activity to which the petition to
expunge pertains.

(f) Has never secured a prior sealing or expunction of a
criminal history record under this section, former
s. 893.14, former s. 901.33, or former s. 943.058, unless
expunction is sought of a criminal history record previously
sealed for 10 years pursuant to paragraph (h) and the record
is otherwise eligible for expunction.

(g) Is no longer under court supervision applicable to the
disposition of the arrest or alleged criminal activity to
which the petition to expunge pertains.

(h) Has previously obtained a court order sealing the record
under this section, former s. 893.14, former s. 901.33, or
former s. 943.058 for a minimum of 10 years because
adjudication was withheld or because all charges related to
the arrest or alleged criminal activity to which the
petition to expunge pertains were not dismissed prior to
trial, without regard to whether the outcome of the trial
was other than an adjudication of guilt. The requirement for
the record to have previously been sealed for a minimum
of 10 years does not apply when a plea was not entered or
all charges related to the arrest or alleged criminal
activity to which the petition to expunge pertains were
dismissed prior to trial.

(3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE. —

(a) In judicial proceedings under this section, a copy of
the completed petition to expunge shall be served upon the
appropriate state attorney or the statewide prosecutor and
upon the arresting agency; however, it is not necessary to
make any agency other than the state a party. The
appropriate state attorney or the statewide prosecutor and
the arresting agency may respond to the court regarding the
completed petition to expunge.

(b) If relief is granted by the court, the clerk of the
court shall certify copies of the order to the appropriate
state attorney or the statewide prosecutor and the arresting
agency. The arresting agency is responsible for forwarding
the order to any other agency to which the arresting agency
disseminated the criminal history record information to
which the order pertains. The department shall forward the
order to expunge to the Federal Bureau of Investigation. The
clerk of the court shall certify a copy of the order to any
other agency which the records of the court reflect has
received the criminal history record from the court.

(c) For an order to expunge entered by a court prior to
July 1, 1992, the department shall notify the appropriate
state attorney or statewide prosecutor of an order to
expunge which is contrary to law because the person who is
the subject of the record has previously been convicted of a
crime or comparable ordinance violation or has had a prior
criminal history record sealed or expunged. Upon receipt of
such notice, the appropriate state attorney or statewide
prosecutor shall take action, within 60 days, to correct the
record and petition the court to void the order to expunge.
The department shall seal the record until such time as the
order is voided by the court.

(d) On or after July 1, 1992, the department or any other
criminal justice agency is not required to act on an order
to expunge entered by a court when such order does not
comply with the requirements of this section. Upon receipt
of such an order, the department must notify the issuing
court, the appropriate state attorney or statewide
prosecutor, the petitioner or the petitioner's attorney, and
the arresting agency of the reason for noncompliance. The
appropriate state attorney or statewide prosecutor shall
take action within 60 days to correct the record and
petition the court to void the order. No cause of action,
including contempt of court, shall arise against any
criminal justice agency for failure to comply with an order
to expunge when the petitioner for such order failed to
obtain the certificate of eligibility as required by this
section or such order does not otherwise comply with the
requirements of this section.

(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION. — Any
criminal history record of a minor or an adult which is
ordered expunged by a court of competent jurisdiction
pursuant to this section must be physically destroyed or
obliterated by any criminal justice agency having custody of
such record; except that any criminal history record in the
custody of the department must be retained in all cases. A
criminal history record ordered expunged that is retained by
the department is confidential and exempt from the
provisions of s. 119.07(1) and s. 24(a), Art. I of the State
Constitution and not available to any person or entity
except upon order of a court of competent jurisdiction. A
criminal justice agency may retain a notation indicating
compliance with an order to expunge.

(a) The person who is the subject of a criminal history
record that is expunged under this section or under other
provisions of law, including former s. 893.14, former
s. 901.33, and former s. 943.058, may lawfully deny or fail
to acknowledge the arrests covered by the expunged record,
except when the subject of the record:

1. Is a candidate for employment with a criminal justice
agency;

2. Is a defendant in a criminal prosecution;

3. Concurrently or subsequently petitions for relief under
this section or s. 943.059;

4. Is a candidate for admission to The Florida Bar;

5. Is seeking to be employed or licensed by or to contract
with the Department of Children and Family Services, the
Agency for Health Care Administration, the Agency for
Persons with Disabilities, or the Department of Juvenile
Justice or to be employed or used by such contractor or
licensee in a sensitive position having direct contact with
children, the developmentally disabled, the aged, or the
elderly as provided in s. 110.1127(3), s. 393.063,
s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3),
s. 409.175(2)(i), s. 415.102(4), chapter 916, s. 985.644,
chapter 400, or chapter 429;

6. Is seeking to be employed or licensed by the Department
of Education, any district school board, any university
laboratory school, any charter school, any private or
parochial school, or any local governmental entity that
licenses child care facilities; or

7. Is seeking authorization from a Florida seaport
identified in s. 311.09 for employment within or access to
one or more of such seaports pursuant to s. 311.12 or
s. 311.125.

(b) Subject to the exceptions in paragraph (a), a person who
has been granted an expunction under this section, former
s. 893.14, former s. 901.33, or former s. 943.058 may not be
held under any provision of law of this state to commit
perjury or to be otherwise liable for giving a false
statement by reason of such person's failure to recite or
acknowledge an expunged criminal history record.

(c) Information relating to the existence of an expunged
criminal history record which is provided in accordance with
paragraph (a) is confidential and exempt from the provisions
of s. 119.07(1) and s. 24(a), Art. I of the State
Constitution, except that the department shall disclose the
existence of a criminal history record ordered expunged to
the entities set forth in subparagraphs (a)1., 4., 5., 6.,
and 7. for their respective licensing, access authorization,
and employment purposes, and to criminal justice agencies
for their respective criminal justice purposes. It is
unlawful for any employee of an entity set forth in
subparagraph (a)1., subparagraph (a)4., subparagraph (a)5.,
subparagraph (a)6., or subparagraph (a)7. to disclose
information relating to the existence of an expunged
criminal history record of a person seeking employment,
access authorization, or licensure with such entity or
contractor, except to the person to whom the criminal
history record relates or to persons having direct
responsibility for employment, access authorization, or
licensure decisions. Any person who violates this
paragraph commits a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083.

(5) STATUTORY REFERENCES. — Any reference to any other
chapter, section, or subdivision of the Florida Statutes in
this section constitutes a general reference under the
doctrine of incorporation by reference.

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