Judge in Florida Cannot Deny Sealing or Expunction Based on Nature of Charge

In Florida, when a person gets arrested for a crime, he/she may have an opportunity to clear up his/her record depending on how the criminal case proceeds. If the charges are ultimately dismissed, the person is eligible to have that criminal record expunged. If the person enters a plea of guilty or no contest and the judge ultimately withholds adjudication, the person is eligible to have the criminal record sealed depending on the nature of the charge. The Florida legislature has determined which crimes are eligible for sealing. Assuming a person is eligible for a sealing or expunction, there is a process that must be undertaken to have the criminal record sealed or expunged. It involves getting a Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE) and filing a motion to expunge or seal the criminal record with the judge assigned to the case. Once the judge orders the criminal record to be sealed or expunged, the clerk’s office sends the order to the appropriate law enforcement agencies, and the criminal record is sealed or expunged at that time.

As indicated, a judge has to agree to sign the order sealing or expunging the criminal record. Once the criminal defense lawyer files the motion to seal or expunge the criminal record, the prosecutor has a right to object to the motion or agree to it. Either way, it is ultimately up to the judge. However, the judge may not deny the motion to seal or expunge the criminal record based solely on the nature of the charge. The judge can look into the underlying facts of the case and deny the motion based on those facts, but the charge alone is not a proper basis to deny the motion to seal or expunge the record. The Florida legislature has determined which crimes can or cannot be sealed. As a result, the judge may not override that decision by denying someone’s attempt to seal or expunge his/her record based on the charge when the Florida legislature has already established that the charge is eligible to be sealed or expunged.

A criminal record can be a very significant obstacle when trying to get a job, especially when the job market is tight. Even if you were arrested and the charges were dropped, the arrest and the charge will still show up on your record if you do not take action to clean up your record. If you have any questions about sealing or expunging a criminal record, feel free to contact us for a free consultation.