Frequently Asked Questions
THE LAW OFFICE OF WILLIAM B. WYNNE
FREQUENTLY ASKED QUESTIONS:
The following list of questions and answers was provided by the Florida Department of Law Enforcement.
1. How do I have a record sealed or expunged?
Sections 943.0585 and 943.059, Florida Statutes (F.S.), set forth criteria that must be met in order to be eligible to have an adult or, if so desired, juvenile criminal history record sealed or expunged by a court. In addition, these statutes require a person who wants to petition a court to seal or expunge his/her criminal history record in Florida, to first apply to the Florida Department of Law Enforcement (FDLE) for a Certificate of Eligibility. (As the name implies, this document certifies that the record is statutorily eligible for sealing or expungement.) The issuance of a Certificate of Eligibility does not mean that your criminal history record will, necessarily, be ordered sealed or expunged by the court. The granting of a petition for sealing or expungement filed by a statutorily-eligible petitioner is at the sole discretion of the court. Under certain specified conditions, criminal history records may be eligible for expungement under other statutory provisions, with different requirements and different effects. See the response to Question #7 below. The criminal history record of a minor may also be eligible for other forms of expungement, as noted in Question #17 below.
2. Where can I find the application for Certification of Eligibility?
You can obtain an application for the Certificate of Eligibility by downloading the application from this website, or by emailing the FDLE Expunge Section at Seal-Expunge@fdle.state.fl.us, and requesting an application be mailed or emailed to you.
3. Why do I still have a criminal history record when the charges against me were dropped/dismissed/no action filed/abandoned/ nolle prossed?
Under Florida law, adult criminal history records are public unless sealed or expunged. See Section 943.053(3), F.S., which provides for public access to criminal history records, under specified conditions. The term "criminal history information" is defined, tracking the federal definition, in Section 943.045, F.S. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of any charges stemming from that arrest, whether it is an adjudication of guilt or the withholding of adjudication, acquittal, or dismissal of charges before trial, or other disposition.
4. Should I obtain a copy of my criminal history record prior to applying for a Certificate of Eligibility?
Obtaining a personal review is not a prerequisite to applying for a certificate of eligibility to seal or expunge a criminal history record. Under Florida and federal law, an individual has the right to request a copy of his/her criminal history record for purposes of review, to ensure that it is both accurate and complete. Through the process known as a Personal Review, the requestor may examine their criminal history record for accuracy and has the right to challenge any information contained within the criminal history record that the requestor believes is inaccurate or incomplete. A Personal Review generally allows an individual to determine which, if any, date(s) of arrest he/she will be eligible to have sealed or expunged. No charge is assessed by FDLE for this service. See Section 943.056, F.S., and Rule 11C-8.001, Florida Administrative Code.
To obtain a Personal Review, send a copy of your fingerprints, along with a letter stating your request to FDLE, Attention: Criminal History Records Maintenance Section (CHRM), PO Box 1489, Tallahassee, Florida 32302. Please do not send your application for certificate of eligibility, certified disposition, fingerprints or payment with this request. You can obtain the personal review form from here http://www.fdle.state.fl.us/Criminal-History-Records/Personal-Review.aspx
For arrests occurring outside the state of Florida, the FBI has a similar procedure to review a criminal history record.
5. What is the difference between a sealed record and an expunged record?
When a criminal history record is sealed or expunged, the public will not have access to it. Certain governmental or related entities, primarily those listed in Section 943.059(4)(a), F.S, have access to the sealed record information in its entirety. When a record has been expunged, most of the entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself without a court order. The response to a record search query from such an entity would be: "Criminal History Record Expunged Pursuant to Florida Statutes 943.”
6. When is my record sealed or expunged?
Once an order has been issued by a court of competent jurisdiction to seal or expunge your criminal history record and a certified copy of that order has been received by FDLE, the order will be complied with in accordance with applicable state law. The issuance of a certificate of eligibility does not seal or expunge your record. If you receive a certificate of eligibility, your next step will to be to file a petition, along with the certificate and affidavit, in a court of proper jurisdiction.
7. How many dates of arrest can I have sealed or expunged?
The eligibility criteria for sealing or expungement include the requirement that the applicant be able to attest that he/she has never previously had a record sealed or expunged, under Section Section 943.059, Section 943.0585, or previous versions of those statutes, in Florida. With respect to the relief offered by these statutes, a person may only seal or expunge one arrest record in one proceeding. More than one arrest record may be sealed or expunged in a single proceeding if the court, in its sole discretion, finds the arrests in question to be directly related.
A record that is initially ineligible for expungement (because adjudication was withheld) may become eligible after it has been sealed for 10 years. However, a person may not seal or expunge one arrest record and then, later and in a different proceeding, ask to have a different arrest record sealed or expunged. NOTE: Other forms of expungement, such as expungement which occurs automatically (by operation of law), under Section 943.0515, administrative expungement under Section 943.0581, juvenile diversion expungement under Section 943.0582, human trafficking expungement under Section 943.0583, lawful self-defense expungement under Section 943.0585(5) and early juvenile expungement under Section 943.0515(1)(b)2, do not prevent the record subject of the record from seeking a judicial sealing or expungement under Section 943.0585 or Section 943.059, F.S.
8. What charges cannot be sealed when adjudication is withheld?
A list of criminal offenses that may not be sealed when (i.e., even if) adjudication is withheld is found in Section 943.059, F.S., and is included with the application package. (The same listing is found in Section 943.0585 F.S.,
because the specified offenses may not be expunged either, even if sealed for 10 years under an earlier version of the law.)
In addition, if a person has been adjudicated guilty (as an adult) of any criminal offense in any jurisdiction (or adjudicated delinquent, as a juvenile, in Florida for any felony or for certain specified misdemeanors), whether or not related to the charge(s) that the person is applying for, the record is ineligible for sealing and the application will be denied. FDLE conducts state, national, and criminal traffic records checks when processing applications.
9. What charges cannot be expunged?
The same eligibility requirements which apply to sealing also apply to expungement, with certain additional requirements. Any charge, which resulted in a withholding of adjudication, may not be expunged until it has first been sealed for at least 10 years, see Section 943.0585(2)(h), F.S. FDLE conducts state, national, and criminal traffic records checks when processing applications.
10. Do I have to have an attorney to get my criminal history sealed or expunged?
There is no requirement that you have an attorney in order to request a seal or an expungement of your criminal history record. However, because the process sometimes involves complex legal issues, an attorney’s advice and assistance may well be helpful in many cases. If you need information on how to contact an attorney that is knowledgeable in this area of the law, you can contact the Florida Bar online at http://www.floridabar.org or by phone at (800) 342-8011.
11. After I have received my Certificate of Eligibility, what is my next step?
Once FDLE has issued the Certificate of Eligibility to seal or expunge a criminal history record, the next step is to file a petition for relief, along with the Certificate of Eligibility and the required affidavit, in the court having jurisdiction over the arrest (usually in the county in which the arrest occurred). The issuance of the Certificate of Eligibility is not the final step in the Sealing/Expungement process, nor does it guarantee that a criminal history record will be sealed or expunged. The final decision to seal or expunge your criminal history is placed by law in the sole discretion of the court.
12. I had my record expunged years ago but I need a copy of my records. What can I do?
Once a record has been expunged under Section 943.0585, F.S. it is no longer available to be disseminated to anyone, under any circumstances, absent a court order so authorizing. FDLE, as well as any other state or local agency, is statutorily prohibited from releasing copies of court-ordered expunged records, even to the person whose record was expunged. FDLE may release a copy of an expunged record only upon receipt of a court order. It is highly recommended that you obtain and keep a copy of all pertinent documents (arrest report and disposition, order to expunge or seal) for your records before you secure the sealing or expungement of your criminal history record.
13. Can I appeal (ask for judicial review of) the denial of my application for a Certificate of Eligibility to seal or expunge my criminal history record?
If you believe the denial of your application for Certification of Eligibility is in error, you may ask that the denial be reviewed. If the denial is based on information in your criminal history record that is believed to be in error or incomplete, the procedure for reviewing and correcting that record is given in Rule 11C-8.001, Florida Administrative Code. See Question #4, for instructions on how to request a copy of your criminal history record to review accuracy and completeness. If you agree that the criminal history information is correct, but believe that the law has been incorrectly applied or interpreted in your case, you may appeal the denial, i.e., ask the court which would hear the petition to seal or expunge to review the decision of FDLE. If you have questions in this regard, you should seek legal advice and/or contact the Clerk of Court in the county in which the petition to seal or expunge would be filed.
14. If I receive a full pardon, can I have my criminal history sealed or expunged?
With respect to sealing or expungement under Sections 943.059 or 943.0585, F.S., unless the pardon indicates on its face that it entitles the record subject to seal or expunge his/her criminal history record, the granting of a full pardon does not remove any condition of ineligibility for sealing or expunging a criminal history record imposed by the disposition of the pardoned offense. See R.J.L. v. State, 887 So.2d 1268 (Fla. 2004).
15. If I receive clemency, will my record be automatically expunged?
No. Neither a full pardon, nor any other type of executive clemency, will automatically expunge or facilitate the expungement of your criminal history record.
16. If I have my civil rights restored, will my criminal history be expunged?
No. In order to have your civil rights restored you had to have been convicted (adjudicated guilty) of a felony that was the basis for your loss of civil rights. Persons who have been convicted (adjudicated guilty) of a felony are not eligible for an expungement or sealing of their criminal history record under Sections 943.0585 or 943.059, F.S., regardless of whether their civil rights have been restored.
17. 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 to the decision of whether to seek the judicial sealing or expungement of a juvenile criminal history record. Prior to October 1, 1994, juvenile arrest records were not maintained by FDLE in the criminal history record system. Currently, juvenile criminal history records maintained by FDLE are not available to the general public except under the conditions specified in Section 943.053(3)(b), F.S. Juvenile records are subject to an abbreviated retention schedule, if certain qualifications are met, which results in the automatic expungement of the record after a specified period, under Section 943.0515, F.S., at age 21 or 26. Persons between the ages of 18 and 21, who meet certain conditions, may apply for the “early” expungement of their FDLE juvenile criminal history record. Juvenile defendants, who successfully complete a qualified diversion program, as set out in Section 943.0582, F.S., may be eligible for expungement of their record as the term is defined therein. If a person wishes to pursue the judicial sealing or expungement of his/her juvenile record, the eligibility criteria and procedure are found in Sections 943.059 and 943.0585, F.S.
18. If I have a criminal history record sealed or expunged in another state or jurisdiction, will I still be eligible to have a criminal history sealed or expunged in the State of Florida?
Effective July 1, 2013, a previous sealing or expungement of a criminal history record in a jurisdiction outside Florida does not, in and of itself, disqualify an applicant from having a Florida criminal history record sealed or expunged.
19. How long does it typically take to receive a response once I have submitted my Application for a Certificate of Eligibility?
The current processing time is over 90 working days (this does not include weekends or holidays). All applications are processed in the order that the full and complete application for Certificate of Eligibility and all required supporting documents are received.
20. If I had a criminal history record sealed or expunged and then had the sealing or expungement order vacated, can I apply to have a new date of arrest sealed or expunged?
No. As Sections 943.0585(2)(f) and 943.059(2)(e), F.S., require an applicant to have never secured a prior sealing or expungement of a criminal history record under current or former versions of these laws, having an earlier seal or expunge order vacated does not remove this disqualification.
21. Will FDLE notify agencies involved in my case that the record has been sealed or expunged?
If the record is eligible and the court grants relief, FDLE will comply with the certified court order and seal or expunge the appropriate criminal history record. Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency and all criminal justice agencies involved with your case. The notification letter is to inform the agencies that FDLE has received and has complied with the order in accordance with the seal or expunge statutes.
22. What type of background check is conducted by FDLE to determine my eligibility to have a record sealed or expunged?
FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC) and national record checks through the National Crime Information Center (NCIC). FDLE also conducts searches against local court databases and driving history records maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). These databases are all checked to determine the eligibility of an individual to have a criminal history record sealed or expunged.
23. Why is the Florida Department of Highway Safety and Motor Vehicles checked to determine my eligibility to have my record sealed or expunged?
A criminal traffic offense, such as Driving Under the Influence, Driving While License Suspended/Canceled/Revoked, or Reckless Driving, may appear in the DHSMV database even though it may not be entered in the criminal history record system maintained by FDLE. Although non-criminal traffic offenses (such as careless driving) have no effect on eligibility to seal or expunge a criminal history record, an adjudication of guilt for any criminal offense renders the record ineligible to seal or expunge a criminal history record
24. Who should receive a copy of the order to seal or expunge a criminal history record?
If the record is eligible and the court grants relief, the Clerk of the Court by statute is responsible for sending a certified copy of the court order to the appropriate State Attorney’s Office or Statewide Prosecutor’s Office and the arresting agency or agencies. The arresting agency is then responsible for sending a certified copy of the court order to all agencies to which the arresting agency disseminated the criminal history information to which the order pertains. In addition to FDLE, these agencies may include state agencies such as the Department of Corrections and Department of Juvenile Justice.
25. If I have had my record sealed or expunged but my record is still showing up on the internet, what can I do?
A seal or expungement order cannot eliminate all information about someone’s arrest and criminal history record from the Internet. For example, “mugshot” photographs and arrest information maintained on privately operated websites are not subject to an expungement order. Private companies collect information from a variety of online sources, governmental and commercial. FDLE does not have regulatory authority over these companies, so we cannot request or demand any private entity to change or delete the information it provides, whether such information was obtained from the Department, prior to the court-ordered sealing or expungement, or obtained from other sources. You will need to contact the private entity or entities directly to request any changes or adjustments to their records. Some entities which collect criminal history information may be considered consumer reporting agencies, subject to restrictions imposed by the federal Fair Credit Reporting Act, 15 U.SC. Section 1681 and following, administered by the Federal Trade Commission (www.ftc.gov).