Crimes Prohibited from Sealing in Florida
What Withholds Cannot Be Sealed In Florida
Information provided by Eric J. Dirga, P.A., Orlando - Statewide Service
Last Updated: August 5, 2015
The FDLE has a comprehensive list of what can and cannot be sealed under the Florida Sealing Statute (section 943.059, Florida Statutes). This is where you should look to be absolutely convinced.
Why You Cannot Have Your Record Sealed Or Expunged
Here is a quick list of why, despite all your desires, you cannot seal or expunge your Florida criminal record:
- You have been convicted of a criminal offense (anywhere).
- You have already sealed or expunged a criminal record in Florida.
- FOR EXPUNGEMENT: Your case was not dropped/dismissed (try sealing it!).
- FOR SEALING: Your case resulted in a withhold but is prohibited by statute (see FDLE link above).
You Have A Prior Conviction
Under Florida law any conviction for a criminal offense bars you from ever sealing or expunging a criminal record (except if you were the victim of human trafficking). Let me repeat this - If you were ever convicted of a criminal offense = you are not eligible.
Be careful, in Florida being found guilty does not mean you were necessarily convicted. See the difference between a conviction and a withhold here.
If you were convicted of a criminal offense you may be able to get that conviction overturned. In Florida, the ways to do this are limited. The sooner you try the better. In other states there may be other ways to address convictions.
You Already Have Sealed Or Expunged A Criminal Record IN FLORIDA
Florida allows only one sealing or expungement under its statutes per lifetime. If you have previously sealed or expunged a criminal record in another state don't worry about it. Florida is only concerned with prior sealings or expungements in the state of Florida. If you have already had a criminal record sealed or expunged in Florida you cannot do it again.
The only exception is if you have a qualified juvenile expungement done. Those do not count towards your one chance to seal or expunge a criminal record in Florida. Those expungements are only for juvenile cases that successfully completed a diversion program.
Expungement Means Your Case Was Dropped
You can expunge a case only if it was dropped or dismissed prior to a trial. If it was not then it will not qualify to be expunged. However, it may still qualify to be sealed. (See the differences between a sealing and an expungement.)
Sealing Means You Received a Withhold AND You Charge Is Not Prohibited
Your case was not dropped but you received a withhold of adjudication and now you want to seal your criminal record. Under Florida Law you can do this so long as you were not found guilty of any of the following (NOTE: it does not matter what you were originally charged with so long as you were not found guilty of anything found on the list below.):
- 393.135 Sexual misconduct of developmentally disabled
- 394.4593 Sexual misconduct of the mentally disabled
- 787.025 Luring or enticing a child
- Chapter 794 Sexual Battery (if your charged starts with 794.nnn you are ineligible)
- 796.03 Procuring person under age of 18 for prostitution
- 800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age
- 810.14 Voyeurism
- 817.034 Florida Communications Fraud Act
- 825.1025 Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person
- 827.071 Sexual performance by a child
- Chapter 839 Offense by Public Officers and Employees
- 847.0133 Protection of minors; prohibition of certain acts in connection with obscenity
- 847.0135 Computer pornography; traveling to meet minor
- 847.0145 Selling or buying of minors
- 893.135 Trafficking in Controlled Substances
- 916.1075 Sexual misconduct mentally ill defendants
- Aggravated assault
- Aggravated battery
- Illegal use of explosives
- Child abuse or aggravated child abuse
- Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
- Aircraft piracy
- Sexual battery
- Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority
- Burglary of a dwelling
- Stalking and aggravated stalking
- Act of domestic violence as defined in s. 741.28
- Home invasion robbery
- Act of terrorism as defined in s. 775.30
- Manufacturing any substances in violation of chapter 893 (Controlled Substances)
The list above includes attempts to commit such crimes also.
Shock v. State, 750 So.2d 769 (Fla. 5th DCA 2000): Appellant asserts that because his offense was only an attempt to violate that statute, he is entitled to have the record sealed. He says he violated section 777.04, a general attempt statute and not the drug trafficking statute section 893.135. We disagree and affirm the order of denial. The record-sealing statute says that if the criminal history record relates to the drug trafficking statute then the record will not be sealed. Certainly an attempt to traffic in drugs relates to drug trafficking so logically the legislature meant to include the attempt.
Remember that a Dropped Case Can Be Expunged
Don't be confused by FDLE's website - any offense can be expunged if the case was dropped/dismissed and you otherwise qualify.
Babun v. State, 576 So.2d 377 (Fla. 3d DCA 1991): The State concedes that the trial court erroneously applied section 943.058, Florida Statutes (1989), in denying a motion to expunge and seal court records showing that the movant was arrested and charged with a criminal offense. The statute, which prohibits the sealing of records in a completed case, does not apply where the charges are nolle prossed.
Think of it in these terms:
- If your case was not dropped you may be able to seal it. Look at the list above to make sure it is not a prohibited offense. If it is on that list it cannot be sealed.
- If your case was dropped (dismissed) then forget the list above - the only thing that we have to check is if you have ever been convicted of another offense.
I cannot emphasis this any more. Cases prohibited from being sealed are only prohibited because there was a finding of guilt in the case. If the case was dropped/dismissed then there was no finding of guilt and you would be seeking an expungement, not a sealing.
Do You Need An Attorney To Seal Or Expunge Your Record - Yes
You can try and do it on your own however I will suggest you hire someone that knows what they are doing. Go to my do you need an expungement attorney webpage for more informtaion.
The purpose of publishing this information is to help judges, attorneys and non-lawyers better understand this area of law. We appreciate any input that may further this goal.
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