Sealing and Expunging Records

The purpose of this Legal Guide is to provide information to the Reader about sealing and expunging criminal records in Florida State Courts. Note that this is not an instruction manual (i.e. this is NOT – caps intentional – “SEAL / EXPUNGE 101”) but it should be helpful nonetheless.

1. What does “Sealed” mean and what can be sealed in Florida?

   When a record is sealed it is effectively hidden from the public. The record still exists it is just not generally accessible. If you have no further issues with the criminal justice system for a period of ten (10) years after sealing your record then your sealed record will be eligible to be expunged. Until then, however, it remains unavailable to the public unless the Court which sealed is petitioned to and then enters an Order unsealing the record. You may qualify to have your criminal record sealed if a) you have never been convicted of or plead guilty to any criminal charge (anywhere, ever), b) you have not been convicted or entered a guilty plea to the arrest / charge that you want sealed presently, c) you are not on probation, d) you have never had a criminal record sealed or expunged (again, anywhere, ever) and e) the case that you seeking to expunge is not a “disqualified offense” (see section three (3) below, “What are the restrictions on sealing or expunging records in Florida?” for a complete list of disqualified offenses.

2. What does “Expunged” mean and what can be expunged in Florida?

   When a record is expunged it is destroyed in both it’s physical and digital forms by the arresting agency, the prosecuting authority and the Clerk of Courts. Note, however, that there are still “copies” of the file maintained by the State (FDLE) and if they have been uploaded to the FBI then they will exist in both the NCIC (National Crime Information Center) and the IAFIS (Integrated Automated Fingerprint Identification System), but these databases are never made accessible to the public. You may qualify to have your criminal record expunged if a) your charge was dropped, dismissed, or if you were found not guilty, b) you have never been convicted of or plead guilty to any criminal charge (anywhere, ever) and c) you have never had a criminal record sealed or expunged (again, anywhere, ever). If you expunge a record then you may lawfully deny or fail to acknowledge the arrest covered by the expunged record with the following exceptions: 1) if you are applying for employment with a criminal justice agency; 2) where you currently have a criminal case pending (anywhere); 3) you concurrently or subsequently petition for another sealing or expungement, 4) you apply to The Florida Bar, 5) you seek 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, 6) you are 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) you are seeking authorization from a seaport for employment within or access to one or more of such seaports.

3. What records / crimes cannot be sealed or expunged in Florida?

   If you received a withhold of adjudication on any of the following charges then they are NOT sealable; however, if the following charges were dropped, dismissed, or if you were found not guilty then they may be expunged: Any offenses listed in F.S. 907.041 (i.e. Arson, 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, 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, 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 as defined in s. 741.28 F.S., Home-invasion Robbery, Act of Terrorism as defined by s. 775.30 F.S., Manufacturing any substances in violation of chapter 893, Attempting or conspiring to commit any of the above crimes), and Sexual misconduct with developmentally disabled person and related offenses, F.S. 393.135, Sexual misconduct with mental health patient and related offenses, F.S. 394.4593, Luring or enticing a child, F.S. 787.025, Sexual Battery and related offenses, Chapter 794, Procuring person under 18 for prostitution, F.S. 796.03, Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, F.S. 800.04, Voyeurism, F.S. 810.1, Florida Communication Fraud Act, F.S. 817.034, Scheme to Defraud or Organized Fraud, as used in F.S. 817.034, Lewd or lascivious offense upon or in presence of elderly person or disabled person, F.S. 825.1025, Sexual performance by a child, F.S. 827.071, Offenses By Public Officers and Employees, Chapter 839, Showing, selling, etc., obscene literature to minor, F.S.847.0133, Computer pornography, F.S. 847.0135, Selling or buying of minors, F.S. 847.0145, Trafficking in controlled substances, F.S. 893.135, Sexual misconduct with mentally deficient or mentally ill defendant and related offenses, F.S. 916.1075 or a violation of any offense which qualifies for registration as a sexual predator under F.S. 775.21 or for registration as a sexual offender under F.S. 943.0435.

4. What is the process and how long does it take?

   Sealing records is a three (3) part process and expunging records is a four (4) part process. For sealing you must a) fill out an Application to Seal (the document requires case and client specific information and a notarized signature), b) the Application is submitted to the Florida Department of Law Enforcement (FDLE) together with a certified disposition (which is acquired from the Clerk, usually for a fee), a contemporaneous fingerprint form (which most police departments will process for you during normal business hours) and a money order (for $75.00 payable to “FDLE”), and then c) after receipt of your “Certificate of Eligibility” (COE) a Petition to Seal must be filed with the Clerk of Courts (together with the COE, an Affidavit in support of the Petition, and a proposed Court Order). Note that copies of the materials need to be served upon all relevant parties (i.e. the State Attorney’s Office (SAO) and the police agency in question), the Clerk will charge a filing fee (the amount may vary from jurisdiction to jurisdiction, but for reference in Miami-Dade County the filing fee is $42.00) and the Petition then needs to be calendered before the appropriate Judge. For expunging the same process applies but with an added step in between a) and b) for sealing. For expungement, after you have filled out “Section A” of your application you must then submit it to the SAO for their review, approval and signature (Section “B” – which does not apply to sealing) before you can submit it to FDLE (if you sent it in without Section B completed it an Application to Expunge will be returned to you unprocessed by FDLE). With the exception of the State Attorney having to approve the application, execute Section “B” and return it to you before you can ship it off to FDLE the process for expungement is the same as it is for sealing. The time frames are not set in stone and can (and will) vary from jurisdiction to jurisdiction but again, using Miami-Dade as a point of reference you can expect about a thirty (30) day turn around time for SAO approval of Section B and in either event you can expect about a ninety (90) to one hundred and twenty (120) day turn around time for FDLE to process your application and return your approved application together with your sealed original COE. As for the time frame to calender the matter that will also vary from jurisdiction to jurisdiction but again, using Miami-Dade as a point of reference, in the 305 the client (or lawyer) is responsible for contacting the Judge’s Judicial Assistant and calendering the matter (as the Clerk will not do it automatically). Other jurisdictions may require the same or the Clerk may set it automatically upon filing. Questions about that should be directed to the Clerk’s Office in question.

5. Where can I find forms for sealing or expunging records?

   There are two (2) sources for forms: 1) FDLE (which definitely has the application materials readily available and easily accessible) and 2) your particular Clerk of Court (which may or may not offer up forms in your jurisdiction… some do some don’t and there’s no rhyme or reason as to why). The FDLE forms can be found at the following URL (which you can cut and paste):http://www.fdle.state.fl.us/Content/getdoc/c83dd888-ef7a-448e-9a96-ba69fc4181f7/Seal-and-Expunge-Home.aspx(link is external) (pr you can Google “FDLE Expunge” and the link will pop up). The FDLE link will offer you the following: Instructions for Applying for a Certificate of Eligibility, Instructions for Applying for a Juvenile Diversion Expunction, Download Application for Juvenile Diversion Expunge, Download Application for Lawful Self-Defense expungement, Download Expunge/Seal Package (Required Documents), Final Application Checklist, Reasons for Denial for Juvenile Diversion Expunction, Reasons for Denial, Agencies that are Entitled to Sealed/Expunged Information, Frequently Asked Questions, Contact Us, and [additional] Links. That said, while the procedure is both quite detailed and somewhat painstaking it is also far from being rocket science. You can attempt to navigate it yourself (FDLE has tried to simplify it – again I refer you to the website above) but, assuming your eligibility, any criminal defense lawyer (anywhere in Florida – this can be done remotely and does not necessarily require a local attorney, although a local attorney may or may not be less expensive) will be able to accomplish the task with greater ease, likely in a shorter time period, with less aggravation and is almost certain to get the job done right the first time around.

6. What are the mandatory costs associated with the process?

   There are two (2) mandatory costs, two (2) possible / likely costs and one (1) recommended cost. You MUST a) submit a $75.00 money order / bank check to FDLE (they will not accept either a personal check or cash) and b) you must pay the Clerk’s filing fee (again, the filing fee may vary from jurisdiction to jurisdiction, but for reference in Miami-Dade County the filing fee is $42.00). You will POSSIBLY / LIKELY have to a) pay the Clerk a fee for the original certified disposition (which must be submitted to FDLE together with your application, the cost of which will also likely vary from jurisdiction to jurisdiction, but, again for reference in Miami-Dade County the cost for a certified disposition is $7.00) and b) the law enforcement agency which processes you for fingerprints may or may not charge a fee for this service (again, this will vary from agency to agency). Finally I RECOMMEND (in the strongest of terms) that you spend the money to hire a skilled and experienced criminal defense lawyer to assist you in preparing and submitting the paperwork through all step of the sealing / expunging process. Again, while the process it is not rocket science and you can attempt to navigate it yourself, no matter how smart or clever you may be the fact remains that the process is both detailed, painstaking and there are an awful lot of nuances and opportunities for your end game (securing a Court Order directing that your criminal case be either sealed or expunged) to be derailed. Hiring a lawyer all but guarantees you a smooth and worry-free process.

7. What is the purpose and effect of sealing or expunging a criminal record?

   The purpose and effect of sealing and expunging a criminal record is the same, to wit: To keep the matter out of the public’s eye. Again, when a record is sealed it is effectively hidden from the public. The record still exists it is just not accessible without a Court Order directing that the record be “unsealed”. When a record is expunged it is literally destroyed in both it’s physical and digital forms by the arresting agency, the prosecuting authority and the Clerk of Courts. That said, it is important – critical even – to remember that sealing and expunging ONLY effect certain governmental agencies (again, both FDLE and the FBI will maintain the records although they are exempt from public dissemination so, for example, if fingerprints, mugshots, DNA or anything else – including crime statistics bearing your name or identifying information – were uploaded to the FBI database then a local Order of Expunction would not effect the Feds) and Orders to seal or expunge have no effect whatsoever on private (er, extortionist) entities, enterprises or persons who are free to compile and maintain arrest information when it is public. It is not uncommon for such digital pirates (like, for example, Mugshots.com) to “offer” you an opportunity to pay them a “fee” to remove your formerly public information from their private database and therefore from public access. Worse still, after you “buy back your information” from one such racketeer, then you can count on there being another one lurking, somewhere, sometime, somehow, just waiting for you to pay them off as well. Sadly, it can be a seemingly never-ending vicious cycle.

8. Will my sealed or expunged record show up on a background check?

   Unfortunately, it is probably a safe bet to assume that if you were arrested anytime in the digital age then, to some extent, your criminal record will almost certainly remain with you forever. To some degree or another this is true regardless of whether your ultimately seal or expunge your case. This is so as all arrests are initially, at least, matters of public record, and, even if they are subsequently removed from the public record they will still remain very much alive and well in various private records. This is one down-side to technology. I routinely recommend to folks who ask that they run their own background check to see what pops up, as forewarned is forearmed. If your prior indiscretion appears in a background check not withstanding you having had it sealed or expunged, then, for better or for worse, you are probably best advised to take the wind out of the proverbial sails by admitting your past issues / indiscretions to your present (or potential) employer, lender, landlord, licensing authority, admissions committee, etcetera, rather than waiting for them to find out on their own (but whether you do this or not is going to be a personal and not a legal decision). To share an expungement “horror story” with you (which, sadly, recurs all too often in varying forms) in 2001 I represented a young lady who worked at a bank in Surfside, FL as a teller. One fateful day at the end of her shift $3,000.00 was unaccounted for. The bank was locked down and management ran the numbers six ways from Sunday, each time with my client / teller coming up $3,000.00 under par. Long story short my client was ultimately arrested and charged with felony grand theft. By sheer luck and happenstance, during the course of the case the bank branch underwent a cosmetic tune up, and when they removed the teller counter, lo and behold there was the cash, in a wad, completely hidden behind the teller’s station. The charges were dropped but my client still had a felony arrest record which, naturally, we had expunged. In 2012 I got a call from my extremely upset former client demanding to know why she was denied an apartment rental in Austin, TX. I had to explain to her what I just explained to you: All arrests are initially, at least, matters of public record, and, even if they are subsequently removed from the public record they will still remain very much alive and well in various private databases. So please do not be surprised if your sealed or expunged criminal record comes back to haunt you some time down the pike.

9. Should I bother sealing or expunging my record?

   Whether or not you “should” seal or expunge your record is entirely a personal and not a legal decision. You now know that for all practical purposes that even if you do so it likely will make no practical difference to any sort of even halfway competent background check. Further, depending upon the circumstances you may need to disclose your sealed or expunged record anyhow (i.e. for admission into the Florida Bar). Sealing or expunction will remove your criminal case from both the local Clerk of Courts and your arresting police agency’s digital and paper files, and that is something, but it falls far short of being a panacea. Further, you only get one bite at the proverbial seal / expunge apple (meaning that in Florida you can only seal or expunge – not both – one (1) non-disqualified criminal record in your lifetime, with the caveat that you can seal or expunge two (2) records if a) they stem from the same arrest or b) one (1) is a juvenile record and the other is an adult record), so if you are going to use it then you should do so wisely.

10. Why should I hire a lawyer to do this for me?

    Again, the main reason to hire a lawyer is because a skilled and experienced criminal defense lawyer will be able to accomplish the task with greater ease, most likely in a shorter time period, certainly with less aggravation and all but guaranteeing you that the job will get done right the first time around. Most of us have the forms handy, can acquire the certified disposition quickly (saving you both a trip to the courthouse and all of the attendant aggravation that comes with parking, security, and dealing with Deputy Clerks), have an essentially automated process to advise you what you need to do, as well as when and how you need to do it, and we all should be skilled in document preparation, submission, calandering, litigating and follow through. Thanks to technology (this is the “good side” of being in the digital era) in almost every case I am able to secure a Court Order without ever having the client come to either my office or to the courthouse. Email, Paypal and FedEx (or UPS or your preferred “snail mail” delivery source) pretty much cover the spectrum of necessary communication and document exchange.

11. What will it cost hire a lawyer?

    On the issue of legal fees, every lawyer charges according to their own business plan. As every case and every client is /are unique, personally I do NOT quote legal fees based simply upon the charges . Rather, fees are quoted only after having reviewed all readily accessible law enforcement reports, meeting and interviewing the client, getting as realistic as possible feel for the facts, circumstances, likely admissible evidence and reasonable probabilities of the case, identifying and agreeing upon a litigation objective and then determining how much time and effort will have to be expended in attempting to reach the client’s goal. In this way I can be as fair to both the client and myself as is possible. However, when it comes to relatively routine matters such as sealing and expunging records, so long as eligibility is not an issue I “flat fee” the matter for in between $1,500.00 and $2,000.00, depending upon whether the client is local or out of state and how easy communication with the client proves to be. My fee includes both the costs for the certified disposition and the Clerk’s filing fee but it does not include either the $75.00 application fee (which the client will be obligated send to me in the form of either a bank check or money order together with her / his notarized application), the fee for fingerprints (if there is such a fee) or the costs associated with returning necessary original documents to me (which I will have email to the client for execution).

12. The final analysis and a favor please…..

    In the end, if you can afford the price tag and if it gives you comfort then, apart from the fact that you won’t be able to seal or expunge a subsequent arrest, it is probably worth it for your own piece of mind. Now, if I may, I would like to ask you for a favor: If this Legal Guide has been helpful to you then please leave feedback accordingly. Positive reviews are helpful to prospective clients and to others who, like you, are seeking legal advise on line. Your feedback will likely assist others to decide which lawyer they can trust and in whom to place their faith. The lawyers who donate their time on AVVO do so free of charge and the only form of remuneration that we get is in the way of both peer recognition and asker / reader feedback. In this case yours will be most appreciated. Either way I thank you and wish you the best of luck!