If you’ve ever been arrested but you were not convicted, you may think you have a clean criminal record. A prosecutor, defense attorney or perhaps even a judge may have told you that.
However, your criminal record may not be as clear as you think it is. But an attorney can help that arrest virtually disappear through processes called expungement and sealing allowed in Florida under Fla. Stat. §943 (2015).
In most cases, being arrested for a crime will result in a permanent record of the arrest regardless of the charge being dismissed or adjudication being withheld. In some situations, expungement and sealing can keep an arrest from showing up on background checks.
To either receive an expungement or a sealing a person must never have been convicted, aka “found guilty” of any criminal offense – even the lowliest misdemeanor conviction 30 years ago. Thankfully, civil traffic infractions don’t count.
An expungement may be possible when a criminal charge was never filed or if it was filed and later dismissed. In that case, the court may order that the Clerk of the Courts, the State Attorney’s Office, the law enforcement agency making the arrest and any other agency that was notified about the arrest to actually destroy the file and the record of the arrest.
An arrest that results in any sentence is not eligible for expungement. However, if a sentence is issued but adjudication is withheld, aka, there was not a “conviction or adjudication of guilt” the court may agree to seal the record of the arrest.
If a court agrees to seal the record, the arrest is taken off the Clerk of the Court’s website and the clerk cannot confirm that that arrest ever occurred. All other agencies that have a copy of the file are ordered to seal it. That file is then not part of the public record.
In both an expungement and a sealing, it takes a court order to open the record of the arrest again.
If the case is dismissed any charge is eligible for expungement, but cases of arson, aggravated assault, sex crimes, homicide, burglary, and some other serious offenses where adjudication may be withheld are not eligible for sealing.
Every citizen in Florida is eligible for just one expungement or one sealing in a lifetime.
Therefore, on occasion, I might recommend that defendants who have a minor crime, like misdemeanor possession of marijuana, where the case is dismissed or adjudication is withheld, not get that record sealed or expunged. They may want to wait to use their one sealing in the unfortunate event that they receive a more serious charge, like felony drug possession.
Those who have adjudication withheld may legally answer “No” to the question of whether they have ever been convicted of a crime on most private-sector employment applications. However, the arrest will still show up on a background check. If a person obtains an expungement or sealing from the court, under Florida law the person, except in very limited circumstances may answer the question, “have you ever been arrested,” even under oath, with a “no,” and it is not considered perjury.
Whether to grant an expungement or sealing is at the discretion of the court, but in Escambia County and other parts of Northwest Florida, most judges will grant an expungement or sealing if the client has no previous convictions and the state attorney agrees.
Navigating an expungement or sealing is a complex process that requires coordinating documents with several agencies and offices. If you have any questions, feel free to contact me, Jim Jenkins, to discuss the possibility of sealing or expunging your case.