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Sealing/Expunging of Records

What is Sealing/Expunging?

We are frequently contacted by people who would like to seal or expunge their criminal record, for many reasons. Ben has sealed and expunged literally hundreds of records in his career and is very familiar with the process. Here is an overview of how it works.

Sealing: the arrest record is no longer publicly available and MOST entities and employers can’t see it (see below).
Expunction: the arrest record is physically destroyed and no longer exists (except that some agencies can see that something was expunged; see below).

A record of the arrest is destroyed through an expunction, but if one of the below agencies do a background check it will say “there was a record but it was expunged” (but nothing else) – so if you lie about the arrest in one of the below situations described as an “exception”, they will know.

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Do I Need to Acknowledge Arrest?

If your record is sealed or expunged you may lawfully deny or fail to acknowledge it, even under oath. Sealing or expunging a record is close to it never having happened. Employer background checks will generally not turn it up except for the below conditions.

  • You are applying for a law enforcement job
  • You are a criminal defendant charged with another crime
  • You apply for Florida Bar membership
  • You are seeking DCF certification
  • You are an applicant to work for a school board in any capacity

Who is Eligible?

The vast majority of people who want one are not eligible because the requirements are much stricter than they realize. To either seal or expunge, you must:

  • NEVER have been convicted (adjudicated guilty) of ANY crime (no matter how minor) in your ENTIRE LIFE.
  • NEVER have been adjudicated delinquent of any crime.
  • NEVER have sealed or expunged your record before. You only get ONE seal/expunction for your ENTIRE LIFE.

Expunction

You can expunge a criminal record that has been dismissed (the State filed a nolle prosequi or no information) prior to trial or you previously sealed the record, and ten years have passed during which time you haven’t been arrested for anything.

Even a not guilty verdict at trial cannot be expunged right away, because to qualify the charges must have been dismissed prior to going to trial – although if you otherwise eligible you can seal first, then expunge after 10 years, a not guilty trial verdict.

Sealing

You can seal a criminal record if you are found not guilty at trial or you entered a plea and received a withhold of adjudication or a withhold of adjudication of delinquency.

Exceptions: if you pled to one of the following offenses (or attempt/conspiracy to commit one of them) you cannot get the record sealed even if you received a withhold: basically any sex offense, drug trafficking, arson, aggravated assault, aggravated battery, use of explosives, child abuse, abuse of the elderly or disabled, aircraft piracy, kidnapping, homicide, manslaughter, robbery, carjacking, burglary of a dwelling, stalking, domestic violence, home invasion, or terrorism.

What is the Process?

A. We will fill out the FDLE application in our office together and notarize it, along with the affidavit required by the statute.

B. You will need to return our fee to us along with a completed fingerprint card from FDLE. Many law enforcement agencies will do this for free but some will charge a nominal fee. There are also application fees that total about $117.

C. We then provide the application to the State Attorney’s Office, in the case of an expunction, which signs off that you are eligible on section B of the application. This step is not necessary to seal your record.

D. The application is sent to FDLE in Tallahassee for a background check. This can take as long as 4-6 months to complete.

E. When you pass the background check, FDLE mails us a certificate of eligibility. This is a legal document that lets the judge know you are eligible for the seal or expunction.

F. We then make a motion to the court to seal or expunge the record. Some judges require a hearing and some don’t – if one is required you should attend. The State is allowed to go to the hearing and give the judge its position on whether you should have the petition granted. It is always up to the judge whether a seal or expunction is granted.

G. If granted, copies of the order go to the clerk, who sends copies to any agency that has any record of the arrest, such as the jail, the State Attorney, and the arresting agency, telling them to either destroy the record or make it private.

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