1. Juvenile Law Certification Committee
TRYING TO PUT THE GENIE BACK INTO THE BOTTLE: SEALING AND EXPUNGEMENT FOR CRIMINAL CASES CLE
Juvenile Law Certification Committee
Course # N
October 26, 2016

2. POLICY CHOICES: Open records v. a second chance
“However, we note that the policy of public access to hearings and trials is deeply routed in a Fourteenth Amendment concern for due process and a First Amendment concern for public access to ensure the proper operation of courts. By contrast, the policy of public access to old records must be weighed against the long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty. State v. D.H.W., 686 So. 2d 1331, 1336 (Fla. 1996)

3. People often think that diversion, dropping the charge, or withholding adjudication means there is “no record.”: FALSE
The arrest report and resulting court records still exist.
Even if the wrong person got arrested.
The mere fact of the arrest often means being turned down for a job.

4. Approach to this sealing seminar
The focus is on sealing/expungement of juvenile records, but that necessarily requires a lot of time on sealing or expungement generally. So, we will focus at first on the general sealing/expungement process.
The PowerPoint is too detailed, on purpose, so it can be used as a reference.

5. Statutes, rules, regulations:
Expunction: Fla. Stat. § ; FAC 11C-7.006; Fla. R. Crim. P and (sample Affidavit; Petition to Seal/Expunge; Order to Seal/Expunge).
Sealing: Fla. Stat. § ; FAC 11C-7.007; Fla. R. Crim. P and
Fla. Stat. § : administrative expunction for arrest made by mistake.
Fla. Stat. § : streamlined expunction for certain non-violent misdemeanors for juveniles only.
Fla. Stat. § : human trafficking victim expunction.

6. Criminal history records are found in a lot of places:
The arresting police agency
tricky: a defendant might be arrested by the Clay County Sheriff’s Office on a Duval County charge.
Florida Department of Law Enforcement
State Attorney’s Office/Statewide Prosecutor’s Office
Florida Department of Corrections (sometimes)
For juveniles, Department of Juvenile Justice and maybe Teen Courts.
Salvation Army Probation Department
DHSMV
Clerk of the Court
Protective Investigation Unit of the Department of Children and Families

7. What is a “criminal justice agency?”
The sealing and expunction statute impacts records maintained by a “criminal justice agency.” This is defined under Fla. Stat. § (11) to mean:
A court
FDLE
The Department of Juvenile Justice
The Protective Investigations component of the Department of Children and Families, which investigates the crimes of abuse and neglect
Any other governmental agency or subunit thereof that performs the administration of criminal justice pursuant to a statute or rule of court and that allocates a substantial part of its annual budget to the administration of criminal justice (this should include State Attorney Offices and Offices of Statewide Prosecution)
As foreshadowing, we will see that some statutes that deal with the confidentiality of juvenile records refer only to records maintained by the FDLE, rather than to records maintained through other agencies covered by this more broad definition of criminal justice agency.

8. Supposedly, they will all be notified of a sealing/expunction order:
On the order itself, list State Attorney’s Office, arresting agency (including the County Sheriff who runs the jail), and FDLE.
Clerk of Court and arresting agency must send the order to all agencies known to have received the criminal history information.
The FDLE must send the order to the FBI.
Fla. Stat. § (3)(b); § (3)(b)
Makes sense to also list on the Order, if applicable:
Department of Juvenile Justice
Protective services component of DCF, which investigates crimes of abuse and neglect

9. Federal Bureau of Investigation
The Florida Department of Law Enforcement shall forward the order to seal/expunge to the Federal Bureau of Investigation. § (3)(b), Fla. Stat. and § (3)(b), Fla. Stat.
But, does the FBI really have to comply with the state court order?

10. National Crime Information Center
Public can’t access.

11. Why it’s better to expunge than seal:
Criminal justice agencies must physically destroy any expunged records.
Criminal justice agencies can and will keep a notation that it complied with the order to expunge. Fla. Stat. § (4)
Criminal justice agencies keep sealed records, but don’t let the public see them.
FDLE must keep the expunged criminal history record, but the criminal history record is exempt from Chapter 119.

12. Practice Pointer The FDLE is pretty helpful.
The FDLE website has a lot of useful information, including a good “Frequently Asked Questions” section.
The FDLE lawyers are willing to talk about sealing/expunging issues (FDLE Legal: ; FDLE Seal/Expunge Department: ).

13. Eligibility for Expunction (you really have to read Fla. Stat. § 943
Eligibility for Expunction (you really have to read Fla. Stat. § closely):
As an adult, never adjudicated guilty of any crime, anywhere.
As a juvenile, never adjudicated delinquent of certain felonies or misdemeanors under F.S (3) (This is a laundry list that includes all felonies and some misdemeanors; these offenses also require that a minor be fingerprinted.)
The State dropped/dismissed the charges, or the court dismissed the charges.
The case did not go to trial, even if an acquittal.
Not adjudicated guilty of the charge you want to expunge.
Never sealed or expunged a case previously in Florida.
Finished your sentence, including probation of the charge you want to seal.
Once a record has been sealed for 10 years, can petition to convert it to expunction.

14. Eligibility for sealing:
All the same as for expungement.
But, sealing is where the charges are not dropped or dismissed, but the applicant gets adjudication withheld.
But, you cannot seal if you get withheld adjudication for a laundry list of offenses. See Fla. Stat. §
One that probably comes up the most is domestic violence.

15. Key difference for eligibility:
Expunge: State drops it or court dismisses it.
Seal: Defendant pleads guilty or no contest and adjudication withheld.
If convicted, can’t seal or expunge.

16. Does a previous sealing/expunction in another state count as the one bite of the Florida apple?
The law changed effective July 1, It used to be that the petitioner could not get a certificate of eligibility if she had previously sealed or expunged another case in another state.
Now, you can still petition to expunge/seal a Florida case even if you have sealed/expunged another matter in another state.

17. A person may lawfully deny or fail to acknowledge sealed/expunged arrests. But, there are exceptions if the person:
is a candidate for employment with a criminal justice agency;
is a defendant in a criminal prosecution;
concurrently or subsequently petitions to seal or expunge another matter;
is a candidate for admission for The Florida Bar;
is seeking to be employed or licensed by, or to contract with, the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Healthcare Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, 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 disabled, or the elderly;
is seeking to be employed or licensed by the Department of Education, any district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses childcare facilities;
is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;
Is seeking to be appointed as a guardian pursuant to § , Fla. Stat.
is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer, and is subject to a criminal history check under state or federal law (sealing only);
Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm (sealing only).
Fla. Stat. § (4); Fla. Stat. § (4)

18. There are some offenses the client cannot seal (Fla. Stat. § 943
There are some offenses the client cannot seal (Fla. Stat. § ) If the client pled guilty or no contest as an adult, or if as a juvenile the client was found delinquent or pled guilty or no contest, to any of the following:
Sexual misconduct with a developmentally disabled person.
Sexual misconduct in a Department of Children and Family Services licensed mental health treatment facility.
Luring or enticing a minor into a structure, dwelling, or conveyance for other than a lawful purpose.
Procuring a minor for prostitution (former ).
Sexual battery and related offenses.
Lewd or lascivious offenses involving persons less than 16 years of age.
Voyeurism.
Schemes to defraud in violation of the Florida Communications Fraud Act.
Lewd or lascivious offenses involving the elderly or disabled.
Use of a minor in a sexual performance.
Chapter 839 offenses by public officers and employees.
Providing obscene matters to minors.
Computer pornography; traveling to meet a minor.
Selling or buying of minors.
Drug trafficking (this is different than mere possession).
Sexual misconduct with mentally ill criminal defendants.
Arson.
Aggravated assault.
Aggravated battery.
Illegal use of explosives.
Child abuse or aggravated child abuse.
Abuse of an elderly person or disabled adult.
Aircraft piracy.
Kidnapping.
Homicide.
Manslaughter.
Sexual battery.
Robbery.
Car jacking.
Lewd or lascivious act involving a child under the age of 16.
Sexual activity with a child 12 to 18 years of age by a person in familial or custodial authority.
Burglary of a dwelling.
Stalking or aggravated stalking.
Act of domestic violence as defined in Fla. Stat. §
Home invasion robbery.
Terrorism.
Manufacturing any substances in violation of Chapter 893.
Any offense which serves as a predicate for sexual predator or sexual offender registration.

19. But, be careful, because what counts is the final charge the person pled guilty or no contest to. Examples:
Arrested for armed robbery, but receives withheld adjudication for grand theft.
Arrested for sexual battery, but pleads guilty and receives withheld adjudication for simple misdemeanor battery.
Arrested for lewd or lascivious battery, but pleads guilty and receives withheld adjudication for child neglect.
And, if the client is arrested for a prohibited offense (e.g. sexual battery), but the prosecutor drops or the court dismisses the charge, the client is eligible for expunction.

20. Domestic violence arrests can be tricky.
Domestic violence is assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
Fla. Stat. § (2)
“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exceptions of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
Fla. Stat. § (3)

21. Some nuances with domestic violence:
Client arrested for domestic battery, but pleads to simple battery (State does not allege domestic relationship) - FDLE still interprets this as sealing prohibited.
Client arrested for domestic battery, but pleads to Jacksonville’s Municipal Ordinance against fighting: FDLE will issue the certificate of eligibility.

22. What happens if the arrest report says domestic battery but its really not?
e.g., boyfriend - girlfriend, but they don’t live together.
FDLE likely will deny certificate of eligibility.

23. But, if FDLE is wrong, you can appeal.
FDLE will deny a certificate of eligibility if client tries to seal a prohibited offense.
But, if FDLE is wrong, you can appeal.

24. How to overcome denial of certificate of eligibility
Call an FDLE lawyer to discuss it (with an affidavit from your client, FDLE may issue the certificate of eligibility).
File a Petition to Review Florida Department of Law Enforcement Denial of Application for Certificate of Eligibility to Seal, in the trial court.
Since this probably won’t happen to you, just call me.

25. The Steps

26. The main difference between sealed and expunged is what information is available to a few entities:
The public does not have access to sealed or expunged records.

27. Who gets to see sealed records? Fla. Stat. § 943.059(4):
The Defendant or her attorney.
Criminal justice agencies for criminal justice purposes, including criminal history background checks for approval of firearm purchases or transfers.
State court judges to help with case-related decision making.
These entities, for licensing, access authorization, and employment purposes (that is, for background checks on people who want certain jobs or licenses):
Criminal justice agencies
The Florida Bar
Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Healthcare Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice, for employment, contracting or licensing in a sensitive position having direct contact with children, the disabled or the elderly
Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local government entity that licenses childcare facilities
Seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services
Appointment as a guardian under Fla. Stat. §
Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or firearm

28. Access to expunged records Fla. Stat. § 943.0585(4)
Criminal justice agencies for criminal justice purposes.
These entities, for licensing, access authorization, and employment purposes (that is, for background checks on people who want certain jobs or licenses):
Criminal justice agencies
The Florida Bar
Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Healthcare Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice, for employment, contracting or licensing in a sensitive position having direct contact with children, the disabled or the elderly
Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local government entity that licenses childcare facilities
Division of Insurance Agent and Agency Services within the Department of Financial Services
Appointment as a guardian under Fla. Stat. §
The FDLE website says these agencies would only receive the subject’s demographic information and a caveat statement that the criminal history is expunged, but the agencies won’t receive the details.

29. Bottom line: Florida Department of Law Enforcement always will maintain the criminal record, whether sealed or expunged.

30. Practice Pointer
Keep copies of the case documents and orders to seal or expunge.
Many times, clients need to provide case-related documents to prospective employers. Once they are expunged, you cannot get them.
It’s possible to file a motion to get access to sealed records, but it is a pain.
Bottom line: keep the police reports and orders to seal or expunge, and send copies to your client at the end of the case.

31. Some Nuance (but don’t worry about it)
Judicial v. Non-Judicial records
Under separation of powers, the courts have the power to administer the court system, so the legislature can’t restrict the sealing/expunction of judicial records. State v. D.H.W., 686 So. 2d 1331, 1334 (Fla. 1996); Johnson v. State, 336 So. 2d 93 (Fla. 1976).
But courts can seal/expunge non-judicial records only because the legislature says so.
State v. D.H.W., Id. at 1335.

32. This Distinction is shown in the Law v. the Rules:
Fla. Stat. § and Fla. Stat. § note the court’s authority over court records, and address sealing/expunction of non-judicial records.
Fla. R. Crim. P and address sealing/expunction of judicial records (and non-judicial).

33. Cline v. State, 37 So. 3d 327 (Fla. 5th DCA 2010)
If you are interested, this case discusses the difference between sealing judicial and non-judicial records.

34. What this means practically?
Nothing – forget I mentioned it.
Every application will meet the requirement for sealing/expunction of judicial and non-judicial records.

35. Hearings when the State objects
Court rarely sets hearing if State doesn’t object.
If State objects, hearing will be set on normal criminal calendar.
Rare for evidence to be presented, but it can (should?) be.

36. The Remedy is Discretionary
“This section does not confer any right to the sealing (expunction) of any criminal history record, and any requests for sealing (expunction) may be denied at the sole discretion of the court.
Fla. Stat. §§ ;

37. Abuse of Discretion Standard
Anderson v. State, 692 So. 2d 250 (Fla. 3d DCA 1997). Defendant pled no contest to grand theft and aggravated stalking and had adjudication withheld after grabbing a former girlfriend’s purse and running away. Trial court denied sealing because he “had already received a break from the criminal justice system because he received a withhold of adjudication and early termination of probation.” The 3rd DCA holds that was not a sound reason. It was a first offense and non-violent crime so withholding would be ordinary, and early termination of probation was a reason for, not against, sealing. (But note, now by statute can’t seal aggravated stalking).
Practice pointer: “...the exercise of discretion contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge” Id. at 254.

38. Harman v. State, 12 So. 3d 898 (Fla. 2d DCA 2009)
Defendant charged with murder by shooting of his wife. After a year, the State dropped the charge because the medical examiner couldn’t determine whether it was homicide or suicide. Prosecutor opposed expunction because the State believed Defendant committed murder and the prosecutor talked about prior accusations of domestic violence by a former wife. The trial court denied the expungement because the charged offense was serious and because of the previous domestic violence offenses. 1st DCA reverses because the seriousness of the offense alone is insufficient, and there was no evidence to support the prior domestic accusations. Remanded to the trial court to reconsider.

39. Oymayan v. State, 765 So. 2d 812 (Fla. 1st DCA 2000)
Defendant arrested once for separate drug offenses occurring over a month. State drops the charges after pretrial intervention. Trial court expunges only one offense because it believes that’s all it can do by law. 1st DCA reverses. The expunction statute applies to one arrest or one incident. 1st DCA holds “one arrest” can relate to multiple offenses.
- useful: often see an arrest for, e.g., a bad license tag and the defendant will have a warrant for bad checks.

40. Baker v. State, 53 So. 3d 1147 (Fla. 1st DCA 2011)
Opinion does not state the arrest charge, but state declined to prosecute. No evidence was presented at the hearing. Trial court denied Petition to Expunge because the appellant worked at a car wash where he had contact with the public (obviously including children). Reversed and remanded for a new hearing, because improper to deny a petition based on facts that would apply to any person seeking relief, and here no evidence showed that appellant worked in a position of trust, had more contact with children than the average person, or had unsupervised contact with children.

41. VFD v. State, 19 So. 3d 1172 (Fla. 1st DCA 2009)
The appellant is not a juvenile. His counsel skillfully moved the trial court to refer to him by his initials to protect anonymity on appeal, and the 1st DCA followed the trial court’s lead, and even noted that in a footnote. Appellant was arrested for aggravated assault with a firearm for allegedly pulling a gun on an air conditioner repairman. The state declined to prosecute. At the hearing, the appellant began to testify but the court stopped the testimony and asked to hear from the state. Without evidence, the prosecutor proffered that VFD pointed a gun, that the gun was found, that VFD was belligerent with the police, that police reports showed VFD had fired a shot in self defense three months prior, and that the non-filed case could be used in the future under Williams Rule. Counsel for appellant then said he could present testimony that VFD did not pull a gun in the arrest case, and could present evidence that the previous gunshot was self-defense. The court did not ask to hear the testimony, and instead sealed, rather than expunged, the criminal history because law enforcement should have access to the records. The 1st DCA reversed and remanded for an evidentiary hearing. Denying a petition because the record might be useful for law enforcement in the future is not a proper exercise of discretion, because that reason is applicable in any case.

42. Fisher v. State, 20 So. 3d 1032 (Fla. 2d DCA 2009)
Trial court summarily denied Petition to Expunge with order stating that expunction is at the discretion of the court. Reversed and remanded for a hearing because where a petitioner has complied with the requirements for expunction of judicial and non-judicial records, she is entitled to a hearing.

43. Light v. State, 80 So. 3d 414 (Fla. 1st DCA 2012)
“Because the trial court failed to hold an evidentiary hearing or state facts and circumstances justifying denial, we reverse and remand for further proceedings.”

44. Shanks v. State, 82 So. 3d 1226 (Fla. 1st DCA 2012)
Defendant pled no contest to possession of cocaine for withheld adjudication and drug offender probation. After his probation was terminated early, he petitioned to seal.
The trial court erred in denying the petition to seal without a hearing, because a denial requires “some good reason based on facts and circumstances of Mr. Shanks’ individual case.”
Reverse and remand; trial court could hold hearing and still deny.

45. Gotowala v. State, 162 So. 3d 33 (Fla. 4th DCA 2014)
Opinion does not state the underlying charge. Trial court summarily denied the petition to seal, even though State in writing did not object.
“Here, the trial court’s summary denial of the petition frustrates meaningful appellate review. On remand, the trial court must either conduct an evidentiary hearing on defendant’s petition or provide a written reason as to why it is denying the petition.”

46. Cole v. State, 941 So. 2d 549 (Fla. 1st DCA 2006)
Defendant acquitted by jury of lewd or lascivious molestation. 1st DCA reverses court’s denial of petition to seal where court does not give any factual basis for denying.
Useful: the “consideration of all the facts and circumstances” standard.
Interesting: you can’t expunge a jury acquittal.

47. S.L.P. v. State, 949 So. 2d 1150 (Fla. 3d DCA 2007)
Insufficient to deny sealing because public’s interest to having access to criminal history outweighs defendant’s interest in sealing her record.

48. Godoy v. State, 845 So. 2d 1016 (Fla. 3d DCA 2003)
Withheld adjudication for voting fraud. Trial court denies sealing because, “this type of crime goes to part of the constitutional system...”
3rd DCA reverses because trial court must have focused only on the nature of the charge, rather than all the facts and circumstances.

49. Maxwell v. State, 185 So. 3d 702 (Fla
Maxwell v. State, 185 So. 3d 702 (Fla. 4th DCA 2016) (petition for review denied, 2016 WL )
Appellant went to trial and was convicted by a jury and sentenced to five years in prison. Evidence at trial was that appellant was hired as a caretaker for an elderly woman, would leave the victim unattended and tied to a bed, and gave the victim un-prescribed Ambien to induce sleep. The conviction was reversed because the appellate court found that the conduct, though possibly criminal, did not fit under the elderly abuse/neglect statute that she was charged with.
When the appellant petitioned for expungement, the appellant was not present and her counsel offered no evidence, so the trial court had nothing to consider except the trial testimony.
The trial court did not abuse discretion in denying expunction. The trial court gave acceptable reasons related to the specific facts/circumstances of the case to support the trial court’s finding that “the public should have a right to know about” the arrest: the victim was a family friend; appellant was paid a lot for being a caretaker; the victim was mentally sharp but immobile due to a broken hip; and appellant tied the victim to a bed and gave un-prescribed Ambien.
Also, the 4th DCA notes that this case went to trial, and that the expunction statute requires that none of the arrest charges result in a trial. A footnote explains that the FDLE initially denied a certificate of eligibility due to the trial, but the trial court granted a defense motion to require that the FDLE grant a certificate of eligibility. The 4th DCA notes that the FDLE was right because a certificate of eligibility to expunge should not be granted when there was a trial. § (2)(a)(2), Fla. Stat.

50. Hernandez v. State, 603 So. 2d 105 (Fla. 3d DCA 1992)
Sealing proper where (1) defendant was a police officer, (2) lewd act against a child, (3) prosecution dropped because wasn’t in child’s best interest to testify, (4) court felt defendant should not be a public servant.

51. Gonzalez v. State, 565 So. 2d 410 (Fla. 3d DCA 1990)
Firefighter receives withheld adjudication on purchase of cocaine charge. Denial of sealing proper because “there is a compelling interest in knowing the character of the public employees who served the community.”

52. DHSMV administrative suspensions:
Can’t expunge/seal a license suspension.

53. Exception for Lawful Self-Defense
The normal eligibility requirements for expunction do not apply if you acted in lawful self-defense under Chapter 776, Florida Statutes. § (5), Fla. Stat.
The FDLE is directed to issue a certificate of eligibility for expunction if the petitioner submits a written statement from the prosecutor which verifies that a charging document was not filed, was dismissed by the state attorney, or dismissed by the court, because the petitioner acted in lawful self-defense.
§ (4) applies, regarding when the successful petitioner has to reveal the expunged criminal history, and what entities are entitled to the expunged criminal history.
Still up to the court’s discretion.

54. Human Trafficking Victim Expunction Fla. Stat. § 943.0583
Human trafficking means transporting, soliciting, recruiting, harboring, providing, enticing, maintaining, or obtaining another person for the purpose of exploitation of that person. Fla. Stat. § (2)(d).
2013 law allows a victim of human trafficking to seek expunction, even if convicted, for an offense committed while the person was a victim of human trafficking.
A conviction expunged under this Section is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.
Official documentation of the victim’s status creates a presumption that his participation in the offense was the result of being a human trafficking victim (official documentation is any documentation issued by federal, state, or local agency tending to show a person’s status as a victim of human trafficking).
But, a petitioner does not have to show official documentation.
Petition is filed in the circuit where the petitioner was arrested, but does not need to be filed in the same court where the petitioner’s criminal proceedings occurred.
The burden is preponderance of the evidence; however, if there is no official documentation of the victim’s status, then the petitioner must make a showing of clear and convincing evidence.

55. Human Trafficking Victim Expunction Fla. Stat. § 943.0583 (continued)
A human trafficking victim may not expunge any of the following offenses:
Arson
Sexual battery
Robbery
Kidnapping
Aggravated child abuse
Aggravated abuse of an elderly person or disabled adult
Aggravated assault with a deadly weapon
Murder
Manslaughter
Aggravated manslaughter of an elderly person or disabled adult
Aggravated manslaughter of a child
Unlawful throwing, placing, or discharging of a destructive device or bomb
Armed burglary
Aggravated battery
Aggravated stalking

56. Human Trafficking Victim Expunction Fla. Stat. § 943.0583 (continued)
The successful petitioner may lawfully deny the expunged arrests with these exceptions:
Candidate for employment with criminal justice agency
Is a defendant in a criminal prosecution
(So, this allows a successful petitioner more protection than conventional expunction.)
Criminal history expunged here is not subject to the Public Records Act, except the record shall be made available to:
Criminal justice agencies for their respective criminal justice purposes
Any Governmental agency that is authorized by state or federal law to determine eligibility to purpose or possess a firearm or carry a concealed firearm in the use of such agency’s official duties
A petition does not require a certificate of eligibility from FDLE.
Still up to the Court’s discretion.

57. Administrative expunction for arrest by mistake - Fla. Stat. § 943
Applies to arrest contrary to law or by mistake.
“Mistake:”
e.g., someone uses your client’s identity.
Establishing “contrary to law” is an uphill battle.
The police can apply if police in their discretion believe the arrest was contrary to law or by mistake, or if a court so orders.
The citizen can petition if the Sheriff or State Attorney endorses it.

58. Confidentiality of juvenile criminal records (Ugh)
Bottom line, not nearly as confidential as people think.
The safest course in advising clients is to assume it’s not confidential.

59. There are (too) many statutes that impact the confidentiality of juvenile records
It is hard to explain or make sense of the various statutes.
The purpose today is to focus on the key confidentiality provisions as background to thinking about sealing/expungement, and what sealing/expungement really means for juveniles.
The primary chapters that address confidentiality of juvenile records:
Chapter 985 (specifically juveniles)
Chapter 943 (juveniles and adults)

60. Fla. Stat. § (2):
Child’s name, photograph, address, and crime or arrest report not confidential if:
- child taken into custody for law violation which, if, committed by an adult would be a felony, or,
- charged with a violation of law which, if committed by an adult, would be a felony, or,
- found to have committed an offense which, if committed by an adult, would be a felony, or,
- transferred for prosecution in the adult system.
Bottom line: felony arrests are not confidential.

61. Fla. Stat. § 985.04(2) (continued)
Some public records custodians choose not to electronically publish arrest or booking photos of a child, whose booking photo is not exempt from the Public Records Act.
A public records custodian may choose not to electronically publish on the custodian’s website the arrest or booking photographs of a child which are not confidential and exempt under this Section or otherwise restricted from publication by law; however, this subparagraph does not restrict public access to records as provided by S (Fla. Stat. § (2)(a)2.)

62. Fla. Stat. § 943.053: dissemination of criminal justice information by FDLE
For juveniles, criminal history information maintained by the FDLE is confidential and exempt from Chapter 119 unless the juvenile has been:
Taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony;
Charged with a violation of law which, if committed by an adult, would be a felony;
Found to have committed an offense which, if committed by an adult, would be a felony; or
Transferred to an adult court under Chapter 985.
Fla. Stat. § (3)(b)1.

63. Fla. Stat. § 943.053: dissemination of criminal justice information by FDLE (continued)
Confidential juvenile criminal history information is available to:
A criminal justice agency for criminal justice purposes.
The juvenile or her attorney.
The juvenile’s parent, guardian, or legal custodian.
Any of the entities who can access expunged/sealed records under Fla. Stat. § (4) or Fla. Stat. § (4) (there is a laundry list which appears in an earlier slide).

64. G. G. v. Florida Department of Law Enforcement, 97 So. 3d 268 (Fla
G.G. v. Florida Department of Law Enforcement, 97 So. 3d 268 (Fla. 1st DCA 2012)
If you wish to read more deeply, this opinion addresses the interplay between Fla. Stat. § and Fla. Stat. § , on the issue of what juvenile criminal records can appear to the public on an FDLE background check.

65. How long juvenile records are kept (by the FDLE’s Criminal Justice Information Program) Fla. Stat. §
If a juvenile classified as a serious or habitual juvenile offender or committed to juvenile correctional facility, records are automatically expunged at age 26.
If a child is not classified as a serious or habitual juvenile offender and is not committed to a juvenile correctional facility, the records automatically expunged at age 21.
This is a change in the law, effective July 1, Previously, it was age 24.

66. How long juvenile records are kept Fla. Stat. § 943.0515 (continued)
But, the automatic expunction at age 26 or age 21 does not occur if:
A person 18 or older is charged with or convicted of a forcible felony and the person’s criminal history record as a minor has not yet been destroyed; the person’s juvenile record must be merged with and retained as part of the person’s adult record.
If at any time a minor is adjudicated as an adult for a forcible felony, the juvenile criminal record must be merged with her record as an adjudicated adult.
Fla. Stat. § (2)(a)(b)

67. Juvenile adjudications for certain serious sex offenses are not expunged at age 26 or 21
If a child is adjudicated delinquent for an offense committed on or after July 1, 2007 for specified sex offenses, then the records may not be destroyed and must be merged with and retained as part of the person’s adult record.
These offenses are the same ones which would require the juvenile to be registered as a sex offender under Fla. Stat. § (1)(h)(1).
Fla. Stat. § (3)

68. A new way to expunge some juvenile records
Like we discussed a few slides ago, if a child is not classified as a serious or habitual juvenile offender (and certain circumstances of forcible felonies or serious sex offenses don’t apply), then the juvenile criminal history is expunged two years after the date the minor reaches age 19 (Fla. Stat. § ).

69. A new way to expunge some juvenile records (continued)
Someone between 18 and 21 years of age who has not been charged by the State Attorney or found to have committed any criminal offense within the five year period before applying may request that FDLE expunge any criminal offenses committed before age 18.

70. A new way to expunge some juvenile records (continued)
The requirements for this admittedly narrow-type expunction:
$75.00 processing fee to FDLE.
Get fingerprints by law enforcement agency.
A sworn, written statement from the minor that she isn’t under court supervision and hasn’t been charged with or found to have committed a criminal offense in any jurisdiction within the United States within five years before the application date.
Requires approval of the State Attorney for each circuit in which an offense occurred.
Fla. Stat. § (1)(b)2

71. A new way to expunge some juvenile records (continued)
If the youth applies for this early expunction and it’s denied, the criminal history will still be expunged at age 21.

72. A new way to expunge some juvenile records (continued)
But, note the disconnect between normal expungement/sealing and Fla. Stat. § that addresses how long juvenile records are kept.
§ (including this new way to remove juvenile offenses before age 21), only applies to records maintained by FDLE.
§ specifically refers to records maintained by the “criminal justice information program.” This is defined as “a system…for the collection, processing, preservation, or dissemination of criminal justice information.” Fla. Stat. § (13); this criminal justice information program is created and maintained “within the Department of Law Enforcement.” Fla. Stat. §

73. So, what does this mean?
When we think generally about juvenile records, and that they disappear at age 21 or 26 (other than the exceptions for the more serious stuff), this refers only to the criminal history information maintained by FDLE.
These laws don’t require courts, police agencies, or DCF to, for example, get rid of juvenile records at age 21 or 26.
And, if someone applied to FDLE for early expunction before age 21 under § , that only applies to the information maintained by FDLE.

74. What about juvenile records maintained by the Clerk of the Court?
Fla. Stat. § (1): “The Clerk of the Court shall make and keep records of all cases brought before it under this Chapter. The court shall preserve the records pertaining to a child charged with committing a delinquent act or a violation of law until the child reaches 24 years of age or reaches 26 years of age if he or she is a serious or habitual delinquent child, until 5 years after the last entry was made, or until 3 years after the death of the child, whichever is earlier, and may then destroy them, except that records of traffic offenses in which there is no allegation of delinquency may be destroyed as soon as can be reasonably accomplished.”

75. What about juvenile records maintained by the Clerk of the Court (continued)?
Note, that this statute still has the age at 24 or 26. So, it did not change to age 21 for many offenses, as did Fla. Stat. §
Also, this says that courts may destroy them, not shall.
Per my phone call to the Duval County Clerk of the Court office, the juvenile records are retained like any adult record, per the time frames in Judicial Administration Rule

76. Statutes are confusing and hard to reconcile
Fla. Stat. § (2), dealing with Clerk of the Court: “The clerk shall keep all official records required by this Section separate from other records of the circuit court except those records pertaining to motor vehicle violations, which shall be forwarded to the Department of Highway Safety and Motor Vehicles. Except as provided in ss and (6)(b) and (7), official records required by this Chapter are not open to inspection by the public, but may be inspected only upon the order of the court by persons deemed by the court to have a proper interest therein…”
So, while this gives some confidentiality of court records, remember Fla. Stat. § (2), which says the child’s name, photograph, address, and crime or arrest report is not confidential under a laundry list of offenses that can be summed up as: felony arrests.

77. Statutes are confusing and hard to reconcile (continued)
So, it may be best for a child to petition to seal or expunge.

78. Juvenile offenses may be sealed under the conventional sealing/expunge statutes
Fla. Stat. § /Fla. Stat. §

79. Juvenile offense may be sealed under the conventional seal/expunge statute State v. S.A.B., 65 So. 3d 1160 (Fla. 5th DCA 2011)
Petitioners in consolidated appeals were juveniles who had successfully sealed juvenile court records under Fla. Stat. § and the corresponding procedural rule, Fla. R. Crim. P For some reason, the State appealed and argued that the Court lacked authority because Fla. R. Crim. P applies to adult cases, and there is not a juvenile rule of procedure pertaining to sealing juvenile court records. The 5th DCA affirms the sealing order. Fla. Stat. § specifically gives statutory authority to seal records of a “minor or an adult.” Even if R doesn’t apply, the Court has authority absent a conflicting Rule.

80. Also, the special expunction options for self-defense or human trafficking victims will also apply to children

81. Special juvenile expungement for non-violent misdemeanors. Fla. Stat
Special juvenile expungement for non-violent misdemeanors. Fla. Stat. § ; FAC 11C-7.009
Kids get arrested now when it used to be the police/school called the parents (e.g., alcohol, pot, shoplifting).
Typical for first offenders to get diversion or Teen Court.
This can include simple battery/assault (not domestic).
If so, separate expunction process which is not the lifetime one bite of the apple.

82. Requirements for pre-arrest, post-arrest, or teen court diversion program expunction Fla. Stat. §
Arrest for “non-violent misdemeanor”: this includes simple assault or battery when pre-arrest or post-arrest diversion expunction is approved in writing by the State Attorney for the county in which the arrest occurred.
Has never been, before filing the application for expunction, charged by the State Attorney with, or found to have committed, any criminal offense or comparable ordinance violation.
The charge was not domestic violence as defined in Fla. Stat. §

83. Procedure for pre-arrest, post-arrest, or teen court diversion program expunction Fla. Stat. §
The application is available on the FDLE website.
Steps:
Submit application on the FDLE form signed by parent or legal guardian, or by the minor if she has reached the age of majority.
Submit to FDLE along with the application and official written statement from the State Attorney for the county in which the arrest occurred certifying that she successfully completed the county’s pre-arrest or post-arrest diversion program, that her participation in the program was based on an arrest for a non-violent misdemeanor, and that she has not otherwise been charged by the State Attorney with or found to have committed any criminal offense or comparable ordinance violation.
Pay a $75.00 processing fee.

84. There no longer is a time limit
Before July 1, 2016, a minor had to apply under Fla. Stat. § within 12 months of completing the diversion program.
Now, there is no time limit.

85. This special form of expunction is not the one bite of the apple.

86. This statute is hard to read – here’s what I think it means
The statute is poorly written, with too many “excepts.”
But, a big difference from “normal” expunction is that the person may lawfully deny or fail to acknowledge the arrest and the charge covered by the expunged records, except that the expunged records are made available to criminal justice agencies:
To determine eligibility for pre-arrest, post-arrest, or teen court programs;
When the record is sought as part of a criminal investigation; or
When the subject of the record is a candidate for employment with a criminal justice agency.
So, the laundry list of exceptions under “normal” expungement (for example, licensure by the Department of Children and Families), do not apply to this type of expunction.

87. This remedy is not exactly the same as “normal” expunction.
This is administrative, and is done by FDLE. There is no court order.
The records maintained by local criminal justice agencies in the county in which the arrest occurred are sealed, as defined in Fla. Stat. §

89. Juvenile diversion expunction apparently doesn’t apply to court records
The FDLE letter does not reference the court.
A phone call to the Duval County Clerk of the Court’s Office confirmed that they do not expunge clerk records under the juvenile non-violent diversion expungement.

90. Juvenile diversion expunction apparently doesn’t apply to court records (continued)
But, is that right?
Fla. Stat. § (2)(a)2: “Records maintained by local criminal justice agencies in the county in which the arrest occurred that are eligible for expunction pursuant to this Section shall be sealed as that term is used in S ”
Fla. Stat. § defines “criminal justice agency,” and includes “a court.”

91. Sum-up of sealing/expunge options open to a juvenile
“Normal” sealing and expungement under Fla. Stat. § / (which would include the self-defense exception).
Special juvenile expungement for non-violent diversion misdemeanors (Fla. Stat. § ).
Human trafficking victim expunction (Fla. Stat. § ).
Administrative expunction for arrest by mistake (Fla. Stat. § ).

92. Some additional sealing/expunction considerations

93. A neat idea that won’t work
A.J.M. v. FDLE, 15 So. 3d 707 (Fla. 3d DCA 2009)
Defendant arrested for felony possession of cocaine and misdemeanor DUI. In felony court, the defendant quickly pleads and receives withheld adjudication and petitions to seal the felony charge. But, the DUI charge was still pending in County Court. The idea was to get rid of the felony. The 3rd DCA correctly denied the certificate of eligibility because petitioner has to show he had not been adjudicated guilty of any of the acts stemming from the arrest. 3rd DCA says that means the whole case has to be over.

94. Strategy Considerations
When client has multiple arrests: which one sounds the worst? (Theft v. drugs?)
One arrest, multiple offense dates

95. Sealing/expunging more than one arrest
Court has discretion to seal multiple arrests if all relate to the original arrest.
e.g., arrest, then arrested again for violating probation.

96. Lying on a petition to seal/expunge is a 3rd degree felony.

97. Timing
FDLE sends certificate of eligibility within approximately days.
If uncontested, generally takes 6 to 9 months, start to finish.

98. What FDLE checks to issue certificate of eligibility:
Florida Crime Information Center (FCIC) - public can access for a fee.
National Crime Information Center (NCIC) - public cannot access.
Local court databases.
Florida Department of Highway Safety and Motor Vehicles Drivers History - public can access for a fee.
NOTE: Important for clients - NCIC and DHSMV drivers records will access most out of state criminal records.

99. Pardon/civil rights restoration does not seal/expunge the record.
A full pardon does not make client eligible to seal/expunge. R.J.L. v. State, 887 So.2d 1268 (Fla. 2004), Randal v. Florida Department of Law Enforcement, 791 So. 2d 1238 (Fla. 1st DCA 2001).
Having the civil rights restored after a conviction does not make a defendant eligible for sealing/expunction.
- it’s still an adjudication

100. Free access to FDLE criminal history Fla. Stat. § 943.056
Adult or juvenile can request it by submitting fingerprints.
If the record kept by FDLE is wrong, client can bring an administrative action against the criminal justice agencies to correct it.

101. NOT A PANACEA: you can’t put the genie back in the bottle
There are three main ways that sealed/expunged records still show up.
Private background companies have their own databases.
sometimes private companies will remove it if you ask.
There are many companies that show arrest records and charge a fee for the information to be removed (e.g. Mugshots.com).
If the arrest was in the media, it’s still in media.

102. 1. Private background companies have their own databases
Unfortunately, sealed or expunged criminal history often shows up on background checks. Many employers and landlords use commercial background check services.
There are hundreds of these companies. The three largest providers are First Advantage, Sterling Backcheck SBC, and HireRight.
Other large companies are ADP, Background-Checks.com, EmployeeScreenIQ, General Information Services, Kroll Background America, and Intellicorp (see Ants Under the Refrigerator? Sharon M. Dietrich, Criminal Justice, Winter, 2016)

103. Consider registering the sealing/expungement order with Expungement Clearinghouse (
For more information: Foundation for Continuing Justice, 504 Brookhollow Drive, Suite 114, Santa Ana, CA
The clearinghouse sends orders to about 500 background screening companies (Ants Under the Refrigerator? Sharon M. Dietrich, Criminal Justice, Winter, 2016).
“Remove” feature

104. 2. There are many companies that show arrest records and charge a fee for the information to be removed (e.g. Mugshots.com)
Sometimes, the companies will remove the criminal history record if they are sent a seal/expunge order.
Other companies claim to remove mugshots (e.g. internetreputations.com).

105. Practice Pointer Discuss these companies with the client.
We don’t know how efficient or honest these companies are.
The citizen must decide if she wants to pay mugshots.com or Reputation Protection Services to try to remove sealed/expunged criminal history.

106. 3. Media reports about arrests.
The media does not have to remove articles about arrests, even if later sealed/expunged.

107. Practice pointer
Always warn the client that sealing or expungement is not a cure-all – tell them in writing.
Order and provide your client multiple certified copies of the order to seal/expunge, in case needed for future employers.

108. Strategy: to tell or not to tell
Practically: many applications specifically ask if the applicant has any sealed or expunged cases.
Wording of specific question is key - tell client to call you!
What if client denies but employer finds the arrest?

109. Where to find the packet
Any clerk of the court.
FDLE website.

110. Costs
$75 check or money order to FDLE for certificate of eligibility (FDLE can waive it, Fla. Stat. § (2)(b).
$59.00 clerk of the court costs for expungement (Duval County). Whether waivable depends on when you ask.
$59.00 clerk of the court fee for sealing (Duval County). Whether waivable depends on when you ask.

111. Information sources: Florida Department of Law Enforcement
Expunge section
Post Office Box 1489
Tallahassee, FL
(850)
Office of the State Attorney, Duval County
ATTN: Deb Sanderson
220 East Bay Street
Jacksonville, FL 32202
(904)
Office of the State Attorney,
Clay County
825 North Orange Avenue
Green Cove Springs, FL 32043
(904)
Office of the State Attorney, Nassau County
ATTN: Donna Cornellier
76347 Veterans Way, Suite 2105
Yulee, FL 32097
(904)

112. Sealing/Expunging a Federal Case:
For all practical purposes, it is not going to happen.
No statutory or constitutional mechanism (with a limited exception).
No withholds in Federal Court.

113. Expunction for Federal Drug Possession Charge, Defendant Under 21 Years of Age
Under 18 U.S.C. 3607(c), the federal court shall enter an expungement order if a person less than 21 years old resolved a federal drug possession case through a pre-judgment probation program under 18 U.S.C. 3607(a).
But, no lawyer/AUSA will have a case under this statute, unless you have a national park practice.

114. U.S. v. Flowers, 389 F.3d 737 (7th Cir. 2004)
Balancing test: “If the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records” (citation omitted).
7th Circuit comment is telling: “Although we have adopted a balancing test, it seems clear that the balance very rarely tips in favor of expungement.”

115. The few successful cases show there is an argument for Federal expungement if:
Government misconduct in bringing the charge.
The charge was unlawful or unconstitutional.

116. A lot of negative, sometimes inconsistent Federal case law:
The weight of authority is the Federal courts have inherent authority to expunge their own records. See U.S. v. McMains, 540 F.2d 387, 389 (8th Cir. 1976), and the cases collected there.
Although there are exceptions, the weight of authority seems to be that Federal courts do not have authority to expunge executive branch records (FBI, NCIC).

117. Cases where Federal expungement denied:
U.S. v. Linn, 513 F.2d 925 (10th Cir. 1975)
U.S. v. McMains, 540 F.2d 387 (8th Cir. 1976)
U.S. v. Schnitzer, 567 F.2d 536 (2d Cir. 1977)
Allen v. Webster, 742 F.2d 153 (4th Cir. 1984)
U.S. v. Friesen, 853 F.2d 816 (10th Cir. 1988)
(Reversed District Court expungement and ordered an evidentiary hearing)
Gear v. U.S., 901 F.2d 679 (8th Cir. 1990)
U.S. v. Smith, 940 F.2d 395 (9th Cir. 1991)
U.S. v. Janik, 10 F.3d 470 (7th Cir. 1993)
U.S. v. McLeod, 366 F. Supp. 2d 1151 (M.D. Fla. 2004)
U.S. v. Rowlands, 451 F.3d 173 (3d Cir. 2006)
U.S. v. Sumner, 226 F.3d 1005 (9th Cir. 2000)

118. Cases where some Federal remedy was granted:
U.S. v. McLeod, 385 F.2d 374 (5th Cir. 1967) (Expungement where police made arrests in Selma, Alabama to interfere with voting rights)
Kowal v. U.S., 53 F.R.D. 211 (W.D. Mich. 1971)
(Arrest proper but Statute later declared unconstitutional)
Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973)
(Case involves mass arrests involving Vietnam protesters)
U.S. v. Bohr, 406 F. Supp (E.D. Wisc. 1976) (Expungement of judicial and non-judicial records of lawyer’s indictment for fraud which was later dismissed)
U.S. v. Johnson, 714 F. Supp. 522 (S.D. Fla. 1989)
U.S. v. Doe, 935 F. Supp. 478 (S.D. NY 1996)