Jon H. Gutmacher, Esq.

Orlando Criminal Defense Lawyer

Former Prosecutor & Police Legal Advisor,

Author: "Florida Firearms -- Law, Use & Ownership",

NRA Certified Firearms Instructor,

NRA Referral Attorney.

JON H. GUTMACHER, P.A.: Orlando Criminal Trial Attorney Services

Expunging Or Sealing Your Record In Florida, and Database Corrections

First – be aware that Mr. Gutmacher does not handle any of these procedures, and will not answer questions pertaining to them. The subject is fully covered in his book, and we suggest you read Chapter Four – which fully covers these matters. However, as a point of information: In Florida, if you had criminal charges that were dropped – you can usually obtain something called an "expunction" of your record. If granted, most of the criminal records involved in the case are destroyed, and the expunction statute creates a “legal fiction” which allows you to honestly deny ever being arrested or prosecuted for the charge(s) expunged – except in certain very limited circumstances. Likewise, once expunged, your expunged record will exist only within the Florida Department of Law Enforcement in computer form, and is accessible only to law enforcement and limited government agencies for a strictly limited area of inquiry. While an expunction is discretionary with the court hearing the motion, and therefore can be denied, it must generally be granted where the statutory requirements are met. Getting your record expunged is not a complete clearing of your record – but it is extremely important to how your record looks to future employers, and also keeps it out of the public eye. This article will give you a general understanding of what it does do, doesn’t do, and how it’s obtained.

Florida Statute 943.0585 provides the mechanism for getting your record expunged in Florida. Only a crime that is prosecuted in a Florida state court is subject to this statute. Federal charges, and those that occur in another state are outside of the jurisdiction of Florida courts to act on. The statute has certain predicates – or qualifications that you must meet. First, you can’t have had a previous expunction or sealing of record. (*you can seek an expunction of a single sealing of record if the sealing occurred at least ten years prior to your applying to expunge it) Likewise, you can’t have a prior adjudication of guilt for any criminal offense, and persons who were adjudicated guilty of a crime as a juvenile may have to reach 24 years of age before they can obtain an expunction, assuming their record remains clean in the interim. Other predicates include not being found guilty of any other charges stemming from the arrest for which expunction is sought, filing the proper paperwork to obtain the expunction, and obtaining a Certificate of Eligibility from the Florida Department of Law Enforcement. A prohibition to qualification added by the Legislature in 2006, prohibits your expunging a record based on an acquittal at trial. True, this new disqualification makes little sense, and might be unconstitutional – but for now, that’s the law.

Some exclusions to expunging your record occur if you were previously found guilty of certain crimes, even if you were not adjudicated guilty (ie: you received a "withheld adjudication"). If so, you cannot obtain an expunction for any charge. These charges include most crimes related to sex (ie: computer porn, sexual battery, lewd acts, etc.), offenses by public employees, drug trafficking, and forcible felonies.

Once you’ve obtained an expunction you can legally deny ever having been arrested or prosecuted for the expunged charges to almost any private employer. However, this is not without it’s own limitations because even if your record is expunged – it will still be available for limited viewing under certain specific circumstances, and will obviously affect the employability of certain individuals. Those include: persons seeking employment with a criminal justice agency, defendants in criminal prosecutions, persons seeking admission to the Florida Bar, persons seeking to be employed or licensed by the State or a contractor working with the State in an environment where there is direct contact children, the developmentally disabled, aged or elderly, the Department of Children & Family Services, the Department of Juvenile Justice, any school, any government entity licensing child care facilities. All of these employers and agencies will have access. Likewise, any employer or agency working with the federal government where a security clearance is required is going to know about your record, and is entitled to know about it. If you have a top secret clearance, and were ever arrested – even if the arrest was a total fabrication or scam – you’re probably going to have all or a portion of your clearance lost, forever. Life is not perfect.

While you are not required to retain counsel to expunge your record, expunctions are generally beyond the ability of most lay persons to obtain. Likewise, you should also know that expunging a record takes several months or more to complete due to administrative delays, and a myriad of other problems that usually pop-up in the process. If you don’t qualify for an expunction – you may still qualify for something called a "sealing of record". The idea is pretty much the same as expunging your record, except the requirements are somewhat more lax since you can get one so long as you got a "withheld adjudication" or better in your case. The other predicates are almost identical to an expunction, and like an expunction – once obtained, you can legally deny the arrest and prosecution to most private employers, etc.

Last, but not least is something called an “administrative expunction”. This is available in extraordinary situations where a person is not eligible for the normal expunction, but the arrest and prosecution were actually mistaken, and the person was innocent in fact. It is difficult to obtain, and is rarely granted – although not impossible if handled correctly. On the other hand, if you have not been charged with a crime, but have found that you have an incorrect criminal history record that is causing you problems with employment, or purchase of a firearm – these can be corrected if handled correctly. Again, this is covered in Mr. Gutmacher’s book in Chapter Four, and we recommend you read this before making any decisions on what to do.

Mr. Gutmacher no longer handles any of these matters, and unfortunately, we cannot refer you to another attorney concerning them.


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