In Part 1 of this blog we discussed the importance of retaining an experienced
criminal defense attorney to handle your case. As this section illustrates,
how a case is handled can not only affect your current situation, but
your future as well.
Some of my most difficult consultations as a criminal defense attorney
come with people who were not represented well during their initial case
and now want to seal or expunge their record. Sealing or expunction of
a criminal charge is a process whereby a charge is either removed from
a person’s criminal record (expunction) or blocked from view by
most background checks (sealing). These consultations are difficult because
often times these people entered into plea deals that leave them ineligible
to seal or expunge their record; and that may keep them from going to
school, getting the job they want, or even coaching their kids in sports.
The importance of having an experienced criminal defense attorney fighting
for you from the very beginning cannot be overstated.
Am I eligible for a record sealing or expungement?
As lawyers who know and respect the value of having or regaining a clean
criminal history record, we know the Florida eligibility requirements
to seal or expunge a record backwards and forwards. The first and easiest
requirement to remember is that a person cannot EVER have been adjudicated
of any crime. J.B. was a sad example of how the application of this requirement
can be devastating.
J.B. hired me to represent him after he was arrested for possession of
cocaine, a felony offense. I investigated the situation and by providing
evidence J.B. was not a user of cocaine and that another individual who
had drug charges in his past had access to the area where the cocaine
was found, I was able to keep charges from being filed in St. Johns County
Circuit Court against J.B. This was the best result we could achieve,
and J.B. was very happy. However, J.B. worked with children and a felony
drug arrest, even though the charges were not filed, would almost certainly
end his career. No problem, this is exactly why Florida has laws that
allow a person to seal or expunge their criminal record. Unfortunately,
as I was working to expunge the cocaine possession arrest from J.B.’s
record, the Florida Department of Law Enforcement denied J.B. a certificate
of eligibility. The reason for the denial was that 12 years earlier, when
J.B. was only 19 years old, he had entered a plea of guilty to trespassing
and was adjudicated guilty of that offense. So now, with his career on
the line, J.B. was unable to expunge his drug arrest. (Given the importance
of the situation, we are working on getting post conviction relief on
the trespassing charge to make J.B. eligible again, but do not know if
the court will cooperate yet.)
Certain Crimes Are Ineligible for Expunction in Florida
J.B. was an adult when he committed the trespass charge, but contrary to
popular belief that juvenile crimes cannot be used against you as an adult,
to be eligible to seal or expunge a criminal history record the person
also may not have been adjudicated delinquent (the juvenile equivalent
of adjudicated guilty) of any of the following offenses:
Assault, as defined in section
784.011 Florida Statutes.
Battery, as defined in section
784.03 Florida Statutes.
Carrying a concealed weapon, as defined in section
790.01(1) Florida Statutes.
Unlawful use of destructive devices or bombs, as defined in s.
Neglect of a child, as defined in section
827.03(1)(e) Florida Statutes.
Assault or battery on a law enforcement officer, a firefighter, or other
specified officers, as defined in section
784.07(2)(a) and (b) Florida Statutes.
Open carrying of a weapon, as defined in section
790.053 Florida Statutes.
Exposure of sexual organs, as defined in section
800.03 Florida Statutes.
Unlawful possession of a firearm, as defined in section
790.22(5) Florida Statutes.
Petit theft, as defined in section
812.014(3) Florida Statutes.
Cruelty to animals, as defined in section
828.12(1) Florida Statutes.
Arson, as defined in section
806.031(1) Florida Statutes.
Unlawful possession or discharge of a weapon or firearm at a school-sponsored
event or on school property, as provided in section
790.115 Florida Statutues.
Can I get an expunction more than once?
The next eligibility requirement, also easy to remember, is that a person
may only seek to seal or expunge their record once in their life. In other
words, if you have sealed or expunged your record once before, you may
not do it again. This makes for some difficult choices for people like
K.A., a person who hired me to seal/expunge her record. K.A. had adjudication
withheld and successfully completed probation for a battery charge about
3 years prior. She also had an arrest, but no charges filed, for a drug
possession charge 8 years prior. K.A. had never been adjudicated guilty
of an offense and so was eligible to either seal her battery case or expunge
her drug case, but not both. Your life circumstances and future goals,
along with advice from a knowledgeable criminal defense attorney can help
you make a hard choice like this.
The final requirement, and most complex, relates to the limitation on eligibility
to seal or expunge certain crimes regardless of the ultimate outcome of
the case. Many sex crimes or crimes involving violence, including domestic
violence battery, are not eligible. These types of crimes make it even
more important to have an experienced attorney knowledgeable about Florida
sealing and expunction laws guiding you through the process.
What are the benefits of sealing my record or getting an expungement?
The benefit of sealing or expunging a criminal history record is the ability
to lawfully deny or refuse to acknowledge the arrest or case in most future
circumstances. This process can take some time, so if you have an old
arrest or case that you feel may hurt you during future background checks
call us today for a free consultation. We at the Albaugh Law Firm look
forward to helping you put your past in the past and move forward with