Expungement of Criminal Records in Florida
Expungement occurs when a court orders law enforcement to physically destroy the criminal records related to an arrest and to remove the arrest history from public view.
Once expunged, the criminal records will no longer appear on a background check and a person can lawfully deny they were ever arrested or charged.
Expungement Options
There are several expungement options available under Florida law.
- Administrative Expugement
- Court-ordered Expungement
- Human Trafficking Victim Expungement
- Juvenile Expungement
- Self Defense Expungement
Pursuing expungement under the incorrect option could foreclose expungement eligibility under another more favorable expungement statute. Therefore, it is important to pursue expungement under the most favorable expungement option available.
Administrative Expungement
Florida Statute 943.0581 allows for the administrative expungement of nonjudicial records created as a result of an arrest made contrary to law or by mistake.
Administrative Expungement is exceedingly rare and usually limited to scenarios where law enforcement arrest the wrong person, recognize their mistake, and promptly release the person.
Court-Ordered Expungement
Florida Statute 943.0585, known as Court Ordered Expungement, allows a person to expunge the criminal history records of a case that was completely dismissed provided the person has not previously been adjudicated guilty of any criminal offense nor had a previous criminal case sealed or expunged in Florida.
Court Ordered Expungement is the most commonly available form of expungement. However, a Court Ordered Expungement can only granted once in a lifetime. As a result, every attempt should be made to obtain expungement under another statute if available.
Cases that were not completely dismissed, may be eligible for Court Ordered Sealing.
Human Trafficking Victim Expungement
Florida Statute 943.0583 allows victims of human trafficking to expunge criminal records of most non-violent criminal acts committed while they were a victim of human trafficking.
There is no limitation on how many Human Trafficking expungements a person can obtain and prior criminal history will not prevent a person from pursuing a Human Trafficking Expungement.
Juvenile Expungement
There are three forms of expungement available to juveniles: Automatic Expungement, Early Juvenile Expungement, and Juvenile Diversion Expungement.
Automatic Expungement
Florida Statute 943.0515(1)(a) provides for the Automatic Expungement of juvenile criminal records that were dismissed or resulted in a withhold of adjudication at the age of 21. However, if the criminal case resulted in the juvenile being committed (juvenile prison), the Automatic Expungement will not occur until the juvenile turns 26 and has not been convicted of a felony as an adult. Once automatically expunged, the criminal records will no longer appear on a background check.
Early Juvenile Expungement
Florida Statute 943.0515(1)(b)(2) allows a person ages 18 to 21 to have their juvenile criminal history records expunged early by FDLE provided they have not been charged with, or found to have committed, any criminal offense within the preceding 5 years of the expungement.
Juvenile Diversion Expungement
Florida Statute 943.0582 allows a juvenile to expunge the nonjudicial arrest records of a non-violent offense that was resolved through the successful completion of a prearrest or post-arrest juvenile diversion program.
Self Defense Expungement
Florida Statute 943.0578, allows for the expungement of criminal history records that were dismissed because it was determined the person acted in lawful self-defense.
A self defense expungement is only available if the prosecutor specifically dismissed a case based on self defense, a court granted a Motion to Dismiss based on Self Defense, or a jury acquitted a person based on self defense.
Unlike Court Ordered Expungement, prior criminal history will not disqualify a person from expungement of a case dismissed based on self defense and there is no limitation on the number of self defense expungements a person can obtain.
Effect of an Expungement
When a criminal case is expunged, all electronic and physical records possessed by law enforcement are destroyed and the record maintained by the Florida Department of Law Enforcement (FDLE) and the court are sealed and made non-public. The records maintained by FDLE and the court are confidential under Florida law and can only be disclosed under limited circumstances explained below.
Most importantly, once an expungement is granted, a criminal background check will no longer reveal the criminal history from the case and the person has the lawful right to deny the existence of the criminal history under Florida law.
Right to Deny
The right to deny the historical fact of a person's criminal history, such as the arrest or prosecution, is governed by the law of the jurisdiction where the person is being asked to disclose their criminal history and a person's ability to deny the existence of the criminal record is governed by that jurisdiction's law.
Florida Law
Under Florida law, a person can lawfully deny the existence of sealed or expunged criminal history records subject to several statutory exceptions outlined in Florida Statute 943.0585(6).
Generally, these exceptions require the disclosure of sealed or expunged criminal history records when the person is:
- A candidate for employment with a criminal justice agency.
- A defendant in a criminal prosecution.
- Petitioning to have another criminal case sealed or expunged.
- A candidate for admission to The Florida Bar.
- Applying for a concealed weapons license in the State of Florida.
- Seeking to be employed by, licensed by, or contracted with the:
- Department of Children and Family Services,
- Agency for Health Care Administration,
- Agency for Persons with Disabilities,
- Department of Juvenile Justice,
- A seaport listed in Florida Statute 311.09.
- Seeking to work directly or indirectly in a position having direct contact with children, disabled persons, or elderly persons.
- Seeking to be employed or licensed by the Department of Education or work in any school or child care facility.
- Seeking to be licensed by the Division of Insurance within the Department of Financial Services.
Federal Law
The federal government is considered a separate jurisdiction and disclosure of sealed or expunged criminal history is governed by federal law, even if a person is physically in the State of Florida.
While most federal agencies do not require the disclosure of sealed or expunged criminal history records, there are several notable exceptions. For example, the United States Immigration and Naturalization Service requires applicants to disclose sealed or expunged criminal history records. Also, expunged criminal history records must be disclosed when completing Form SF-86 as part of a national security clearance application.
Generally, though, if a federal questionnaire or application specifically asks for criminal history that was sealed or expunged, then it should be disclosed. If the question does not specifically ask for sealed or expunged history, it need not be disclosed.
Contact Criminal Defense Lawyer Richard Hornsby
If you have a criminal record holding you back, contact Florida Expungement Attorney Richard Hornsby today to begin the expungement process and clear your record.
