I recently posted an article entitled "11 Frequently-Asked Questions About Sealing Your Record in Florida." In that article, I noted that the Florida Department of Law Enforcement (FDLE) website contains several frequently-asked questions and answers about sealing criminal history records in Florida. This article discusses 11 more of those questions and answers.
1. If I have my civil rights restored, will my criminal history record disappear?
No. In order to have your civil rights restored you had to have been convicted (that is, adjudicated guilty) of a felony that caused you to lose your civil rights in the first place. Persons who have been convicted of a felony are not eligible to get their criminal history records sealed or expunged under Florida law regardless of whether their civil rights have been restored.
2. Do I have to apply for a certificate of eligibility to have my juvenile criminal history record sealed or expunged?
The following considerations are relevant in deciding whether to apply to have a juvenile criminal history record sealed or expunged: Prior to October 1, 1994 (for felonies) and July 1, 1996 (for specified misdemeanors), juvenile arrest records were not maintained by FDLE in the criminal-history record system and would not be available to the general public unless the juvenile were treated as an adult. If certain qualifications are met, juvenile records are subject to an abbreviated retention schedule which results in the automatic expunction of the record after a specified period of time. See Florida Statutes section 943.0515. Juvenile defendants who successfully complete a qualified diversion program, as set forth in Florida Statutes section 943.0582, may be eligible for expunction of their record. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedures, which are similar to those for adults, are found in Florida Statutes sections 943.059 and 943.0585.
3. If I have a criminal history record sealed or expunged in another state or jurisdiction, am I still eligible to have a criminal history record sealed or expunged in Florida?
If the other record was sealed or expunged by operation of law (administratively or automatically, without intervention or action by the applicant), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged in Florida.
4. How long does it typically take to receive a response from my application for a certificate of eligibility?
The current processing time is 30 working days or less from the date the application is received, processed, and mailed back to the applicant.*
5. If I had a criminal history record sealed or expunged and then had that same record vacated, can I now apply to have a different criminal history record sealed or expunged?
No. Florida Statutes sections 943.0585(2)(f) and 943.059(2)(e) state that an applicant cannot have obtained a prior sealing or expunction of a criminal history record. The fact that that record was later vacated is immaterial insofar as obtaining a sealing or expunction is concerned.
6. Will FDLE notify the agencies involved with my case that my record has been sealed or expunged?
FDLE will obey a certified court which states that a particular criminal history record is to be sealed or expunged. Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency (or agencies) involved with your case. The notification letter informs the agency that FDLE has received and complied with the order to seal or expunge the criminal record.
7. What type of background check is conducted by FDLE to determine my eligibility to have a criminal history record sealed or expunged?
FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV).
8. Why is the database at the Florida Department of Highway Safety and Motor Vehicles (DHSMV) checked in order to determine my eligibility to have my criminal history record sealed or expunged?
A criminal traffic offense such as DUI, reckless driving, or driving while license suspended/canceled/revoked may appear in the DHSMV database even though it may not appear in the criminal history record system maintained by FDLE. Although noncriminal traffic offenses (such as careless driving) do not affect one's eligibility to seal or expunge a criminal history record, an adjudication of guilt for any criminal offense, even a traffic offense, makes it impossible for an applicant to get her criminal history record sealed or expunged.
9. Who should receive a copy of the order to seal or expunge a criminal history record?
By law, the Clerk of Court is responsible for certifying a copy of the court order to the State Attorney’s Office (or to the Statewide Prosecutor's Office) as well as to the arresting agency (or agencies). The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, those agencies may include the Florida Department of Corrections, Teen Courts, and the Florida Department of Juvenile Justice.
10. What do I do once I receive a certificate of eligibility?
Once FDLE has issued the certificate of eligibility to seal or expunge a criminal history record, you or your attorney must file a petition for relief along with the certificate of eligibility and a required affidavit in the court in the county where the arrest occurred. The issuance of the certificate of eligibility is not the final step in the sealing or expunging process nor does it guarantee that a criminal history record will be sealed or expunged. The final decision about whether or not to seal or expunge a criminal history record is placed lies with the judge who has jurisdiction over your case.
11. What information is required to complete the application for certification of eligibility?
In order to obtain a certificate of eligibility so that you may, in turn, petition the court to seal or expunge your criminal history record, you or your attorney must do the following things pursuant to Florida statutes sections 943.0585(2) and 943.059(2):
A. Section "A" of the application must be completed and signed in the presence of a notary public;
B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant's name, race, sex, date of birth, social security number, and signature prior to submission to FDLE;
C. The applicant must provide a certified disposition of the case that he is applying to have sealed or expunged.
D. A nonrefundable money order or cashier's check in the amount of $75.00 made payable to the FDLE must accompany the application.
E. If you are requesting an expunction of a criminal history record, the Office of the State Attorney or the Office of the Statewide Prosecutor with jurisdiction over your case must complete Section "B" of the application. If section "B" is not completed, FDLE will assume that you are attempting to get your criminal history record sealed rather than expunged.
* It has been my experience that FDLE often takes up to a couple of months to respond to an application to seal or expunge a criminal history record.
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