Eric J Dirga, PA - Orlando Criminal Traffic Defense Attorney

Florida Expungements and Sealings

Frequently Asked Questions

Statewide Sealing and Expungement Legal Services

Last Updated: March 31, 2014

Answers to Your Questions About Florida Expungements

Q1. How do I qualify to SEAL my criminal record in Florida?

A1. First, you must qualify. Arrests for specified offenses resulting in a finding of guilt by the trial court may be sealable under Florida Law. The court must have withheld the adjudication of guilt and the offense cannot be an enumerated offense prohibited by statute. So long as you have never been adjudicated guilty (convicted) of any other crime you will probably qualify to have your criminal arrest record sealed.

KEY POINTS: An adjudication of guilt will prevent you from being able to expunge or seal all criminal records (See Question #15 for definition of adjudicated guilty). In Florida, the courts can withhold adjudication (also known as "adjudication withheld," and "withhold of adjudication") and thereby maintain your eligibility to have your record sealed or expunged. If confused on this point don't worry, it's complicated. Call us and we may be able to answer this for you.

Q2. How do I qualify to expunge a Florida criminal record?

A2. All arrests that result in a dismissal or nolle prosequi (State drops case) can be expunged so long as you have never been adjudicated guilty or delinquent for any other arrest. This means all prior arrests must have also been dropped or had adjudication withheld. The expungement process can begin immediately after your case is closed.

KEY POINTS: Florida law now prohibits a person that was acquitted after a trial to expunge their arrest record.In that situation you must seal your record first. Again, you cannot have an adjudication of guilt for any other criminal allegation, past or present, to remain eligible.

Q3. Why is it sometimes referred to as "Florida criminal arrest history" rather than "Florida criminal record?"

A3. Many people believe that if their case was dropped or dismissed they don't have a record. This is inaccurate. A criminal record begins once you've been formally arrested. The case may have been dropped, dismissed, or nolle prosequi but your criminal arrest history remains. Anyone who checks your past can discover that you were arrested. Hence, the term arrest history better reflects the nature of a sealed or expunged record and the procedures involved in doing it.

KEY POINTS: Even if you were not formally arrested but were instead given a notice to appear you may still have a criminal arrest history. How? Private companies buy public record information from government agencies such as the Clerks Office and the Florida Department of Law Enforcement. These private companies store and sell your information to whoever wants to buy it. This includes your criminal record. On top of that, these private companies don't have a clue as to what the difference is between an adjudication withheld and an adjudication of guilt.

KEY POINT TWO: When reviewing a criminal record history the term adjudication withheld may not be used. Instead the initials AW or WH may be substituted. Adjudicated guilty is hardly ever used. Instead the term "convicted" is used. Many private companies mistakenly believe both mean convicted.

Q4. What is the difference between sealing and expunging a criminal record?

A4. The short answer is very little as far as its effect on your goal - to eliminate from public view your criminal record history. The technical answer is that a sealing does not require certain agencies to actually "destroy" their records whereas a court order expunging records does. Florida, unlike many other states has two methods for removing a criminal history record from the public records. Most of us have heard of "expunging" a record but the idea of "sealing" a record is new. What is the difference?

The first thing you need to understand is that the qualifications for sealing or expunging are different. Each requires that you not have been previously adjudicated guilty or adjudicated delinquent of any offense. The term "previously" refers to before the date you apply for a sealing or expungement (rather than before the date of the arrest).

If you were arrested and the case was ultimately dismissed or dropped (successful completion of pretrial diversion program normally ends with the case being dropped) then you qualify to have that arrest record expunged. Just remember, to have your criminal record "expunged" you case needs to have been dropped, dismissed, or acquitted.

If you were arrested and ultimately pled guilty or no contest AND had adjudication of guilt "withheld" or "withhold adjudication" or "adjudication withheld" (see question 16) then you may qualify to have your criminal record sealed. Remember, to "seal" a criminal record history is a two-step process. First, adjudication of guilt must have been "withheld," and second, the offense must qualify.

Both sealing and expunging a criminal record removes the information from public records. Both require that the information be made confidential. An expungement goes one step farther and requires that the arresting agency, the sheriff's office, and the state attorney's office actually physically destroy their records of the arrest.

Most law enforcement agencies destroy their physical records after several years maintaining only an electronic record of the arrest. The Court Order will require that agency to remove the remaining electronic record from public access.

KEY POINTS: Confused - just give us a call (407) 841-5555 and we will be able to tell you what you qualify for before you decide to hire us.

Q5. Who can see expunged criminal records in Florida?

A5. Both an expungement and a sealing of records require the court, state attorney, and the law enforcement agencies to remove all information regarding the arrest from the public view. A Court Order is necessary before a court record can be unsealed after a sealing or expungement has taken place. After a record has been sealed or expunged the person can lawfully deny the arrest occurred. However, there are several exceptions to the ability to deny the arrest. They are found on FDLE's website.

KEY POINTS: The difference between sealing and expunging is semantic. There really is not a difference from your stand-point. However, one or the other has to be done before any protections will apply. The actual difference concerns how the affected agencies must deal with your records - whether they must be destroyed (expunged) or made confidential (sealed).

Q6. Is there a time requirement before I can seal or expunge my Florida criminal arrest history (criminal record)?

A6. No. So long as your case disposition is completed your criminal record history can be sealed or expunged. Your disposition is completed when you are no longer under any conditions of the court.

KEY POINTS: But the State can have you waive your ability to have your record sealed or expunged. Usually this occurs if you agree to enter a pretrial diversion program. Usually the delay is three years but each pretrial diversion contract should be read thoroughly before signing.

Q7. I pled to an offense. Can I still have the criminal record expunged?

A7. You cannot have it expunged because it was not dropped or dismissed prior to trial or if you were acquitted after a trial. However you may qualify to have your case sealed if adjudication was withheld.

KEY POINTS: Often times people that come to us are very unfamiliar with the law. Even if you think you pled to an offense we may be able to help. As answered above sealing provides the same protections as expungements. If you are eligible to have your record expunged we will find that out and that will be our goal. If you are not eligible for expungement you may be eligible for sealing.

Q8. Can I seal or expunge my Florida criminal record on my own?

A8. Yes. The court system in this country allows for people to represent themselves (pro se). However, no one but an attorney can give you legal advice regarding the procedures and law of a sealing or expungement. Sometimes judges become frustrated by pro se litigants because they must remain neutral and therefore must refrain from appearing partial or biased and, hence, cannot help you. The opposing party on a criminal record sealing or expungement petition is the State of Florida represented by the Office of the State Attorney.

The Office of the State Attorney will argue against the court granting your request and since it is discretionary, the court can deny a petition even though you otherwise qualify. An expungement lawyer, like myself, that is familiar with the expungment law knows how to combat the prosecutor's tactics. Moreover, my law office will discuss your situation with you and determine if you qualify before you hire us.

The potential headaches and delays created by trying to wade through the paperwork and procedures pro se makes hiring an attorney a sensible and cost effective alternative.

KEY POINTS: If time is of the essence - hire an attorney. Expunging a criminal record takes on average 5 to 9 months. There are very easy mistakes that can be made that can quickly double the amount of time. The Certificate of Eligibility is only good for one year. Hire an attorney that knows what he is doing - me.

Q9. Once started how long does an expungement take for the criminal record to be removed from public view?

A9. This is a good question. It can take several months from starting the process to completion. It depends upon the staffing of the agencies that are part of the process. Currently, the average time from start to finish is between 5 and 9 months. Bottom line: Don't delay.

KEY POINTS: Once the Order has been processed your record is no longer "public." However, right now there are private companies that collect "public" records to sell. It takes them about 6-12 months to cycle through the system and "lose" your criminal record once it has been sealed or expunged. We have no control over these private companies whose defense is always "it's a public record" (once sealed or expunged a criminal record is no longer a public record). You may have a claim for monetary losses if your sealed or expunged record information is released by one of these companies.

Q10. What if FDLE denies my application for a "Certificate of Eligibility?"

A10. This is another reason to seek the advice of an attorney beforehand. First, you are out the $75 you sent to FDLE. Second, there are legitimate reasons FDLE would deny a Certificate of Eligibility. They may deny it because the offense is barred from being expunged or sealed or it may be denied due to a procedural error that may be correctable if you know what you are doing. We provide our clients with legal services to obtain Certificates of Eligibility that by all accounts should be issued. We also advise our clients of potential reasons why FDLE would not issue a Certificate of Eligibility before they spend the $75.

If a person is denied a Certificate of Eligibility there are two possible paths to take to correct the situation. First, determine if the reason is correctable. Often times the FDLE will issue a Certificate of Eligibility once the error is corrected. Second, if there is no error the only option is to address it with the courts. We are experienced in both avenues of relief.

Q11. Why should I hire your law Office over a local office?

A11. We have extensive experience actually petitioning for this request. We have studied all the statutes, cases, administrative rules, and attorney general opinions on this subject. This knowledge and experience helps speed the process along. It also ensures that your record(s) have the best chance of being sealed or expunged the first time. Moreover, if you are denied this request we are experienced in appellate practice as well. If grounds exist to appeal FDLE's refusal to issue a Certificate of Eligibility or the trial court's denial of the Petition - WE can seek review from a higher court.

Distance has little to do with this request. Most of the initial paperwork can be done with a phone call and express mail. Furthermore, I can travel throughout the State of Florida if a hearing is necessary.

Finally, our fees are very reasonable. Before you ever pay a dime for an expungement or sealing we will tell you if you qualify for a certificate of eligibility.

Q12. Are Juvenile criminal records automatically expunged?

A12. Yes and no. If a juvenile commits a non-violent crime and commits no further criminal act then at age 24 the juvenile record is destroyed. However, the FDLE has interpreted the law in such a way that they have been selling juvenile records to private companies. Even though a juvenile record is not a public record in Florida, the companies that buy the information will sell it to employers and others that pay for their services.

The good thing is that now the legislature allows for juveniles to expunge records that go through qualified diversion programs without using up that persons one "sealing" or "expungement." This process must be commenced within 6 months of completion of the diversion program. Additionally, I now recommend that juveniles and their parents seriously consider sealing or expunging their record if the first option is not available.

Q13. How many times can a person have his or her Florida criminal record expunged or sealed?

A13. Under Florida law only once - unless he/she had a record expunged as a juvenile through a qualified diversion program. Additionally, mistaken arrests may be administratively expunged without using your one opportunity.

Q14. Can Florida driving records be sealed or expunged?

A14. The Florida Department of Law Enforcement is only responsible for the records they maintain, as are the other law enforcement agencies that receive a seal or expunge Order from the court. However, by statute, these agencies are required to forward said Order to other agencies that they know have information regarding the particular arrest. Although there is no case on point, an Order to Seal or Expunge a criminal record for a traffic offense should have in it a requirement that a copy be sent to the Florida Department of Highway Safety and Motor Vehicles main office in Tallahassee. The DMV may deny this and therefore it may be necessary to pursue it further.

Q15. What is the difference between "adjudicated guilty" and "adjudication withheld?" or What is the Definition of "adjudicated guilty."

A15. When you enter a plea to an offense the judge can either adjudicate you guilty (if an adult), adjudicate you delinquent (if a juvenile), or "withhold adjudication" of guilt or delinquency. Only charges that were either dropped or had a "withhold of adjudication" can be expunged or sealed.
You must understand that when we talk about sealing or expunging a record, we are talking about "arrest records." That means you have a record from the time of arrest and it does not disappear because your case was dismissed or dropped.

In Florida a defendant can be found guilty of an offense but not be "convicted" of it. When a judge "withholds" adjudication of guilt the defendant is not "convicted" although he or she is still "found to be guilty" of the offense. Being "found guilty" and being "adjudicated guilty/delinquent" are two separate things.

A judge can find you guilty of an offense and in doing so order you to serve probation and require you to complete certain requirements such as community service. So long as the judge "withholds" the adjudication of guilt you are not convicted of the offense. Offenses that have adjudication "withheld" may be eligible for sealing.

Offenses that were dropped or dismissed can be expunged.

An offense that you have been convicted of (adjudicated guilty) cannot be sealed or expunged.

KEY POINT: The best way to determine if you have had the "adjudication of guilt" withheld is to look at your final disposition paperwork from the Clerk of Court. You should have received this when you case was resolved. If you do not have it we can get it for you.

Q16. Why should I bother sealing or expunging my Florida criminal record now?

A16. The law that regulates the qualifications for getting your criminal record sealed or expunged is determined at the time that you petition the court. This means that the offense you were arrested for 10 years ago that may have been eligible to be sealed or expunged at the time of your arrest may be prohibited from this relief next year due to a change in the law.

The legislature in Florida has continually limited who and what can be sealed or expunged by amending the current statute. The expungement statute has been amended at least 7 times since 1992 and the sealing statute has been amended 6 times in the same period of time. By waiting all you do is increase the risk that your criminal record will become ineligible to seal or expunge.

Q17. What happens to the records of private companies that sell previously public records?

A17. Those public records include criminal arrest records. Those companies do not receive the order from the court. Some will remove the information on their own. Others may need a copy of the order which we provide to you. Others may not care. This is why the law allows you to deny that the arrest has occurred.

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