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Fourth Amendment Rights—Search and Seizure, Search Warrants and Exceptions to the Search Warrant requirement
Home Searches—If the police show up to your front door and say they must enter your residence, you have no legal obligation to allow them inside unless they have a search warrant that lists your address and your name. However, if they do not have a search warrant, and you give your consent to their search and allow the police inside your home, then you have WAIVED your Fourth Amendment right to require the government produce a search warrant before they enter your house. Many law enforcement agencies have a “knock and talk” policy, especially the federal law enforcement agencies such as the DEA and ATF. When the police are conducting these “knock and talk” or “meet and greet” activities, their SOLE purpose in conducting these activities is to gather evidence against you and to obtain your consent to search your home or car. This tactic allows them to avoid “the hassles” of obtaining a search warrant. Don’t be fooled by a police officer’s calm, even pleasant demeanor in these situations, into giving your consent to search your car or your residence. Always ask for a search warrant. The search warrant rule applies to vehicle searches as well.

In certain situations, such as if there is an emergency, the police can rely on the doctrine of “exigent circumstances” to enter your home without a search warrant and without your consent. Exigent circumstances include when the welfare and safety of people inside the home is in peril, the possible loss or destruction of evidence and to arrest a fleeing felon. So for example, if the police knock on your door and they are met with a cloud of marijuana smoke, they may attempt to justify their warrantless entry by claiming the evidence of a crime (marijuana possession) would be destroyed or lost if they had to wait for a search warrant. Consequently, if you “escape” into your own home when the police are pursuing you, they are allowed to follow you inside and arrest you.

Vehicle & Individual Searches
Search warrants are not that easy to obtain. This shows how serious the courts hold our rights to privacy. Instead of following the rules, the police spend much of their time finding ways to subvert the system and gain your consent to search without a search warrant. This applies to searches of your person and vehicle as well. The police need a search warrant to search your pockets or personal belongings, even if you are on the street.

One exception to the Search Warrant requirement rule is what’s called a Search Incident to Lawful Arrest or (SILA). If you are lawfully arrested, the officers are allowed to search your person and the parts of your car or home where you had immediate access at the moment you were arrested.

Another exception to the search warrant requirement is in regards to vehicle searches. If you are stopped lawfully, and the police believe there is probable cause that there are drugs or some other evidence of illegal activity inside of the vehicle, the entire car can be searched. An example which police use quite frequently is the odor of marijuana. If law enforcement smells marijuana inside your car, the car and its occupants can be searched without warrant.

Lastly, any evidence the police observe in plain view can be seized and used against you in court. If the police observe an open container in your vehicle, for example, they can pull you out of the vehicle, arrest you for the open container, search your person and car, and more than likely initiate a DUI investigation. Be conscious of your rights, don’t waive your rights, pay attention to your surroundings and don’t make it easy for the government to take away your freedom.

Investigative Detentions
Always keep in mind that officer’s are allowed to detain you temporarily during the course of an investigation even if they don’t have probable cause to formally arrest you. These temporary detentions are sometimes known as “Investigative Stops” and they are legal if law enforcement has reasonable suspicion that a crime is occurring or about to occur. The police must have articulable suspicion, meaning they have to be able to point to and articulate objective reasons as to why they stopped and detained you. An example would be if they see a person walking in the middle of the night with a television set when there have been several reports of burglaries in the area and when there are no stores that sell televisions’ in the immediate area. An officer can detain a person to determine if the television is stolen. Developing probable cause to arrest you is an officer’s main objective during these Investigative Stops, so it’s best to Remain Silent during the investigation as anything you say can be used as the basis for your arrest.

Even thought the police may have a basis to detain you, that doesn’t give them the right to search you. However, the do have the right to pat you down for weapons if they feel threatened or if they see a bulge in your pants the shape of a gun for example. Sometimes courts allow pat down searches if the defendant was acting suspicious or if they made sudden movements or attempted to conceal something on their person.

"Miranda" Rights and the Fifth Amendment
In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, before the government can use your statements against you in court, anyone who is arrested and in police custody must be told four things before being questioned:


  • 1. You have the right to remain silent.
  • 2. Anything you say can and will be used against you in a court of law.
  • 3. You have the right to an attorney.
  • 4. If you cannot afford an attorney, one will be appointed for you.

We are all aware that we have the right to remain silent, right? Most people either forget about this very important right or they believe it doesn’t apply to them when they are being questioned by the police. Regardless of whether the police read you your rights or not, you always have the right to remain silent when being questioned by the police regarding potentially incriminating matters. You never have to explain to the police “your side of the story” and its usually a good idea not to discuss anything with them.

When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case. These are the rules that govern the admissibility of statements made by a defendant. However, enforcing these rules is easier said than done—once an incriminating statement is made, its an uphill battle to have it thrown out of court. Talk to your attorney before talking to the police.

Pre-Arrest Questioning
The Miranda Warning, which protects your rights regarding police interrogation, does not need to be given to you if you are not under arrest. If you are not arrested for a crime, you are not going to go to trial for a crime, so there is no need to give you a Miranda Warning so that what you say can be used against you at trial. However, these statements may still be used against you since they are considered voluntary.

You will not be arrested for politely declining to answer questions, but a situation that requires police intervention is unlikely to be simplistic enough for that response. Police could arrest you for many other reasons, including ‘probable cause,’ so always be polite and do not aggravate the situation.

If you have been Mirandized and you waive your rights, meaning you wish to speak to police freely without an attorney present, you can change your mind at any time and ‘plead the fifth,’ meaning you no longer wish to answer questions, or that you have changed your mind and wish to have an attorney present after all. If you have concerns that you may incriminate yourself by speaking freely to a police officer, by all means request that your attorney be present.

Post-Arrest Questioning
If you are detained by police and not allowed to leave freely, police must read you the Miranda Warning so that you fully understand your rights regarding being questioned. If the police do not intend to use those answers against you at a trial, they do not need to ‘Mirandize’ you.

If the police unreasonably and illegally find evidence against you and they have violated your rights by not reading you the Miranda Warning in a timely fashion, there is a rule called ‘fruit of the poisonous tree’ that makes such evidence inadmissible in a court of law. However, police may be able to prove that they would have found such evidence without your cooperation, and therefore they have the right to use that evidence at a trial. Be cautious about relying on any such intricate defenses. Choose the ‘right to remain silent’ option as your best choice.

Custodial Interrogation
While many people believe that if they are not read the Miranda Warning that their charges will be dismissed by the courts, this is not necessarily true. The Miranda Warning is about protecting your rights as far as police interrogation or questioning against your will. Many people mistakenly believe that if they speak willingly to police officers, ‘telling all’ freely, and they have not been Mirandized before they speak, the police will not be able to use that confession at a trial. Don’t bank on it: if you confess to a crime or speak willingly without being “Mirandized,” that information may be presented at a trial.

Being read the Miranda Warning is a clue that police intend to use your answers to their questions as evidence at a trial, if that happens. They may ask you questions without reading the Miranda Warning if they are concerned for the immediate safety of others, and your answers may be used against you at a trial.

Refusing to answer questions casts some suspicion, of course, but if you are guilty of some crime or feel that you might incriminate yourself even if you are not guilty, you should request to have an attorney present or speak to an attorney before being questioned. You will make your defense attorney’s job easier if you politely decline to answer questions if you have reason to believe you may be guilty of a crime. They cannot intimidate or coerce you into giving answers; this is known as ‘fruit of the poisonous tree.’ While some verbal pressure is reasonable, if you are unfairly intimidated or frightened into giving information, it will not likely be admissible at your trial.

Generally, when defendants invoke their Fifth Amendment right against self-incrimination and refuse to testify or submit to cross-examination at trial, the prosecutor cannot punish them by commenting on their silence and insinuating that it is an implicit admission of guilt. Griffin v. California. Since Miranda rights are simply an extension of the Fifth Amendment which protects against coercive interrogations, the same rule also prevents prosecutors from commenting about the postarrest silence of suspects who invoke their Miranda rights immediately after arrest. However, neither the Fifth Amendment nor Miranda extend to prearrest silence, so if a defendant takes the stand at trial (thereby waiving his Fifth Amendment rights), the prosecutor can attack his credibility with his prearrest silence.

Because Miranda applies only to custodial interrogations, it does not protect detainees from standard booking questions: name, date of birth, address, and the like. Because it is a protective measure intended to safeguard the Fifth Amendment privilege against self-incrimination, it does not prevent the police from taking blood without a warrant from persons suspected of driving under the influence of alcohol. (Such inspections may be incriminatory but not self-incriminatory for a suspect). If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that they may be charged with while in custody.

Many police departments give special training to interrogators with regard to the Miranda warning; specifically, how to influence a suspect's decision to waive the right. For instance, the officer may be required to specifically ask if the rights are understood and if the suspect wishes to talk. The officer is allowed, before asking the suspect a question, to speak at length about evidence collected, witness statements, etc. The officer will then ask if the suspect wishes to talk, and the suspect is then more likely to talk in an attempt to refute the evidence presented. Another tactic commonly taught is never to ask a question; the officer may simply sit the suspect down in an interrogation room, sit across from him and do paperwork, and wait for the suspect to begin talking. These tactics are intended to mitigate the restrictions placed on law officers against compelling a suspect to give evidence, and have stood up in court as valid lawful tactics. Nevertheless, such tactics are condemned by legal rights groups as deceptive.

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. A valid Miranda waiver consists of properly advising the suspect of her Miranda rights and obtaining a waiver of those rights. (The rights, the waiver, and typical phrasings are explained above this section.)

Criminal Process
Each stage of the criminal process provides our office an opportunity to win your case. There are a number of legal strategies that can be employed at each stage.

Initial Contact with Police - The actual start of the criminal process isn’t the arrest. It’s the moments just before your arrest when a police officer decided to intervene and involve himself in the set of circumstances that you happened to be a part of.  The moment he or she decided to make contact with you, your constitutional rights were probably triggered, giving you the right to challenge their actions in court. This is where your case can be dismissed dues to an officer’s failure to comply with the law. Officers need to have a legal basis to restrict your freedom, and their transgressions may lead to your case being dismissed.

Arrest/Notice to Appear—Arrest is when you are taken to jail and a Notice to Appear is when you are given a summons for a misdemeanor offense. Many people think that the police were being nice when they got their “ticket” instead of going to jail. Reality is that an arrest and NTA have the same legal effect— the initiation of a criminal complaint against you and an invitation to a court hearing in about six weeks. In order to be arrested, there must be "probable cause." This means that there must be a reasonable belief that a crime was committed and the person to be arrested committed the crime. An arrest warrant is not necessary. Once placed under arrest, two important constitutional rights apply: the right to remain silent and the right to have an attorney. After an arrest, and even prior to an arrest, a defendant is not required to say anything else to police or investigators, until an attorney is present. The accused must be given the opportunity to contact an attorney.

First Appearance—If you were charged with DUI you probably saw the judge at 1st appearance the next morning. The best advice for a first appearance hearing is saying “not guilty” and not saying anything else. If an attorney is present he or she may motion the court to dismiss the arrest for lack of probable cause. The State Attorney’s Office can still pick up the case if they feel its warranted even after this dismissal. The judge will then advise the defendant of the charge(s) for which he or she has been arrested. The judge will then decide if the police had a sufficient legal basis for the arrest (make a probable cause determination). It is important to attack the sufficiency of the probable cause statement as a way to get a client released or bond lowered. The judge will then decide if pretrial release (bail) is appropriate in the case, and if so, how much.

Bail and Pre-Trial Release—Bail is usually set at 1st appearance based on guidelines used by the particular jurisdiction or judge. Bond is the amount you have to post via surety in order to actually get out of the county jail. Again, an attorney at this phase of the litigation would motion the court for a bond reduction or “ROR” recognizance release or straight release.  If your bail is not reduced at 1st appearance, an attorney may file a motion to set a bond hearing and request that your bond be lowered at that point. The circumstances that the court considers in determine bond are whether the defendant has any ties to the community, whether the defendant has failed to appear to prior court hearings, a defendant’s prior record, and the nature of the allegations. After a defendant can post bond their bond amount will never decrease, but the court can revoke bond a put someone back in jail for just about any reason. If the judge imposes bail in an amount that the defendant cannot afford, a motion to reduce bail may be appropriate. However, there is no right to multiple bond hearings unless there are significant changes in circumstances.

Preliminary Hearing—If you were charged with a felony, a preliminary hearing will be held in front of a judge to determine if there is enough evidence to justify the charges against you. The standard of proof is easier for the State Attorney to meet, unlike the proof beyond a reasonable doubt standard applied during a trial which requires much more in the way of actual proof of guilt. Your attorney may present your case at this hearing, however, for strategic purposes this is usually not done. Instead, he or she will use the preliminary hearing to cross examine the police officers and other key witnesses against you and lock in their testimony as well as to find the flaws in the prosecution's case. This testimony can be used at subsequent suppression hearings or trials to impeach a witness’s testimony.

Arraignment—If the judge determines at first appearance or your preliminary hearing that there is probable for your arrest, your case will sent to Circuit or County Court for trial. You will then be arraigned on the Information ("charging document") that will be filed by the prosecutor if he or she determines whether there is enough evidence to convict you at a trial. The prosecutor may file any additional charges they believe were proven at the preliminary hearing. At this time, you are again formally advised of the charges against you and your constitutional rights and future court dates are assigned. The arraignment is not a trial and not a time when evidence can be presented. The purpose of an arraignment is for the defendant to be informed of the charges against him or her, and for the defendant to enter a plea. A retained attorney may enter a plea of not guilty on the defendant’s behalf and waive his or her appearance. The case will then be given pre-trial and trial dates. (*NOTE: some judges will set the case for trial if you are not present; others and some prosecutors will want a waiver of speedy trial if it is not set for trial directly from arraignment.)

Pre-Trial Conference—After arraignment your case is set for a pretrial. This is a chance for your lawyer to negotiate with the prosecutor and get the prosecutors impression of your case. At this point is when any pretrial motions will be filed. Motions to Suppress, Motions in Limine, Motions to Sever or Consolidate charges and/or defendants, and Motions to dismiss are filed at this stage of the process.

Discovery—Florida is an open discovery state, i.e. both the State and the defense have to make full and complete disclosure of witnesses and evidence intended to be used at trial. The defendant does not have to participate in discovery (can proceed to trial “by ambush”). Certain actions will however trigger the discovery process, such as a public records request. The State must disclose all evidence that is favorable to the defendant as well as any evidence it plans on presenting during a trial. In Florida, a defendant has a right to Depositions in felony cases ONLY. In misdemeanor cases, good cause must be shown to the court before depositions are allowed.

Speedy Trial—Under the Sixth Amendment of the United States Constitution, the trial must be held within a certain time frame after a person has been charged with a crime. This right can be waived by asking for additional time for the preparation of the defense.  Speedy trial rights in Florida falls under two general categories. Speedy trial without demand is the default setting and in most cases, a defendant will be brought to trial within 90 days of arrest if the crime is a misdemeanor, and within 175 days of arrest if the crime charged was a felony. Speedy trial with demand requires a motion from any attorney. With limited exceptions, every person charged with a crime has the right to demand a trial within 60 days.

Investigation—includes going to scene to collect evidence. In a DUI cases, the surface of the road would be examined to detect any possible contributions to your poor performance. Evidence is examined in every case to make sure the government is backing its claims with substantive evidence.

Witnesses—Most witnesses in criminal investigations are police officers. They are witnesses like any other and subject to the same rules, and tendency to make mistakes and assumptions as to what they observed and what their memory recalls. Law enforcement officers usually do not talk to defense attorneys without some type of rule forcing them to. However, most people readily share information they may have. In DUI Cases for example, someone has to have seen you driving a vehicle if you were arrested for DUI. Or may be able to testify as to the amount of alcohol consumed on a particular evening.  In other words, if you were not actually seen behind the wheel of a car by a witness, including the police, then the state cannot get a conviction for DUI. The police cannot get around this issue by simply saying, “witnesses saw” a person driving; those witnesses must be listed in the States Discovery and presented in court to provide testimony before the government can obtain a conviction.

Suppression Hearings—If during the pretrial discovery phase and the investigation process it is discovered that the police violated your constitutional rights, a motion to suppress will be filed to keep the evidence obtained during an illegal search excluded from your criminal proceedings. Motions to suppress seek to exclude physical evidence such as drugs, weapons or stolen goods found on or near your person as well as any incriminating statements you may have made to the police. Don’t let your constitutional rights go quietly into the night, a knowledgeable criminal trial lawyer can raise these issues and succeed in defending your rights.

Sounding—This a the stage of the process in which the government announces whether or not its prepared to take your case to trial. The State must have spoken to all witnesses it needs for its case against you. Without these witnesses, such as police officers or alleged victims, then the government cannot convict you. If the State announces ready prior to trail and their witnesses fail to appear your case will more than likely be dismissed.

Trial—Once the State has called all the witnesses it believes necessary to prove the legal elements of the crimes charged, it will rest. At this time, the Court allows the Defense to make a Motion for Judgment of Acquittal (JOA). A JOA motion asks the Court to find that the State has failed to make a sufficient showing to allow the specific charge to go to the jury. This motion is rarely granted, however, counsel must fully argue the facts and the law to preserve the issue for appeal.

Sentencing
Misdemeanor Offenses-Misdemeanor offenses are handled by the county court and are usually considered less serious crimes than felony offenses.

Second Degree Misdemeanor: A second-degree misdemeanor is a crime punishable by no more than sixty days in jail, six months of probation, and a $500 fine.

First Degree Misdemeanor: A first-degree misdemeanor is a crime punishable by no more than one year in jail, one-year probation, and a $1,000 fine.

Felony Offenses-Felony offenses are handled by the circuit court and are punishable by the possibility of more than one-year imprisonment. Felony offenses are sentenced pursuant to Florida's criminal punishment code ("CPC"). Under the CPC, each felony is scored a specific amount of points. The higher the level a felony is designated, the more points that will appear on the CPC score sheet. A score of more than 44 points will subject the defendant to a minimum term of imprisonment. If the score is less than 44 points, a judge is not required to sentence the defendant to prison, but may still do so.

Third Degree Felony: A third degree felony is punishable by up to five years in prison, five years probation, and a $5,000 fine.

Second Degree Felony: A second-degree felony is punishable by up to fifteen years in prison, fifteen years probation, and a $10,000 fine.

First Degree Felony: A first-degree felony is punishable by up to thirty years in prison, thirty years probation, and a $10,000 fine.

Life Felony: A life felony is punishable by life in prison without the possibility of parole, or probation for life, and a $15,000 fine.

Capital Felony: A capital felony is punishable by death or life in prison without the possibility of parole.
Appeal—If a defendant is convicted and wants to appeal, or has plead after losing a pre-trial motion, he or she must do so within 30 days after sentencing. There is usually no point to an appeal from a plea of guilty or nolo contendere if the sentence imposed was legal. However, the right to an appeal a plea exists and a notice of appeal must be filed if the defendant wants to appeal. If the case is appealed, the trial judge may allow the defendant release on bail until a final decision is reached by the appellate court. While there is a right to bail after an arrest but prior to conviction, there is no right to bails pending an appeal and any bail given is at the discretion of the judge. Typically, if the trial court agrees that issues for appeal are not frivolous, then a defendant may be given bail while he or she awaits the outcome of the appeal.

Sealing & Expunging Criminal Records—The Process
In order to have a criminal record sealed or expunged, you must comply with Florida Statutes, s.943.0585 and s.943.059,  which set forth the criteria that must be met in order to be eligible to have a criminal history record sealed or expunged. In addition, these statutes also state that in order to have a criminal history record sealed or expunged within the State of Florida, an individual must first make application to the Florida Department of Law Enforcement for a Certificate of Eligibility.

Please note that the issuance of a Certificate of Eligibility does not mean that your criminal history record will be ordered sealed or expunged. It merely indicates that you are statutorily eligible for the type of relief that is being requested. Once you have the Certificate of Eligibility, your attorney will file a Motion to Expunge or Seal your criminal record and argue that motion to a local judge. The State Attorney’s Office has the right to be heard and voice an objection to the Expungment. However, most requests to expunge are granted as long as the defendant’s criminal record falls within the statutorily imposed rules of eligibility.

You can obtain a Certificate of Eligibility from the Florida Department of Law Enforcement (FDLE). FDLE provides applications for Certification of Eligibility to the Clerk of Courts in all sixty-seven (67) counties throughout the State of Florida. These application packages may be obtained from the criminal division within each county courthouse. Please contact your local county Clerk's office for additional information. If you reside outside the State of Florida, you may request that an application package be mailed to you.

The eligibility criteria for an applicant to have a record sealed or expunged include the requirement that the applicant be able to attest that he or she has never previously had a record sealed or expunged in Florida or in another jurisdiction. This means, in effect, that a person may only seal or expunge one arrest record in one proceeding. More than one record may be sealed or expunged in the same proceeding if the court, in its sole discretion, finds the arrests to be directly related.

In order to obtain a Certificate of Eligibility to petition the court to seal or expunge a criminal history record, the following requirements must be met pursuant to s.943.0585(2) and s.943.059(2), Florida Statutes:

  • A. Section A of the application must be completed and signed in the presence of a notary public.
  • B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant's name, race, sex, date of birth, social security number, and signature, prior to submission to FDLE.
  • C. The applicant must provide a certified disposition of the case that he/she is applying to have sealed or expunged.
  • D. A NONREFUNDABLE money order or cashier's check for $75.00 made payable to the FDLE must accompany the application.
  • E. If you are requesting an expunction of a criminal history record, the State Attorney or Statewide Prosecutor with jurisdiction over your case must complete Section B of the application. (If not completed, the application will be processed as a sealing of your criminal history record).

All of the items listed above are required at the time that the application is submitted. If an item is missing or the application or fingerprint card is not completed, the application will be returned unprocessed.

A record that is initially ineligible for expunction (e.g., where adjudication is withheld) may become eligible after it has been sealed for 10 years. However, a person may not seal or expunge one arrest record and then, later and in a different proceeding, ask to have a different arrest record sealed or expunged. An expunction or sealing which occurs automatically or by operation of law, without any action on the part of the record subject, is not considered a prior expunction or sealing for this purpose. By law, s. 943.0582(8), Florida Statutes, a juvenile diversion expunge does not prevent the record subject from seeking a judicial expunction or sealing under s. 943.0585 or s. 943.059, Florida Statutes.

Once FDLE has issued the Certificate of Eligibility to seal or expunge a criminal history record, the next step is to file a petition for relief, along with the Certificate of Eligibility and the required affidavit, in the court in the county of the arrest. The issuance of the Certificate of Eligibility is not the final step in the Sealing/Expunction process, nor does it guarantee that a criminal history record will be sealed or expunged. The final decision to Seal/Expunge your criminal history is placed by law in the sound discretion of the court.

Many people think “Why do I have a criminal history record when the charges against me were dropped/dismissed?” The answer lies in the fact that the Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Section 943.053(3), Florida Statutes, which provides for public access to criminal history records. The term "criminal history information" is defined, tracking the federal definition, at Section 943.045(4), Florida Statutes. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.

It may be a good idea to obtain a copy of your criminal history record BEFORE applying for a Certificate of Eligibility in order to avoid wasting time or money on fees for the Certificate when you may not need one. Under Florida and federal law, an individual has the right to request a copy of his or her criminal history record for purposes of review, to ensure that it is both accurate and complete. This process is known as a Personal Review. The requestor may examine the record obtained through Personal Review for accuracy and to challenge any information contained within the criminal history record that the record subject believes is inaccurate or incomplete. No charge is assessed by FDLE for this service. See s.943.056, Florida Statutes. A Personal Review allows an individual to determine which, if any, date(s) of arrest the applicant will be eligible to have sealed or expunged. However, obtaining a personal review is not a prerequisite to applying for a certificate of eligibility to seal or expunge a criminal history record.

When a criminal history record is sealed, the public will not have access to it. Certain governmental or related entities, primarily those listed in s. 943.059(4)(a), Florida Statutes, have access to sealed record information in its entirety. When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself without a court order. All they would receive is a caveat statement indicating that "Criminal Information has been Expunged from this Record". Your criminal history record will be sealed or expunged once an order has been issued by the court of competent jurisdiction to seal or expunge your criminal history record and a certified copy of this order has been received by the FDLE, it will be complied with in accordance with state statutes.

A list of charges that may not be sealed when adjudication is withheld is included with the application package, and is also enumerated in s. 943.059, Florida Statutes. (The same listing is found in s. 943.0585, because the specified offenses may not be expunged either.) In addition, if a person has been adjudicated guilty of any criminal offense in any jurisdiction (or adjudicated delinquent for any felony or for certain specified misdemeanors), whether or not related to the charge(s) that the person is applying for, the record is ineligible for sealing and the application will be denied.

The same eligibility requirements which apply to sealing also apply to expunction, with certain additional requirements. Any charge, which resulted in a withholding of adjudication or in an acquittal (not guilty verdict) after trial, may not be expunged unless and until it has first been sealed for at least 10 years. See s. 943.0585(2)(h), Florida Statutes. A charge which was dismissed before trial (e.g., no information, nolle prosequi, no bill, etc.) may be expunged immediately provided all charges related to the arrest were so disposed of, and the record is otherwise eligible.

If you believe that the denial of your application for Certification of Eligibility is in error, you may ask that the denial be reviewed. If the denial is based on information in your criminal history record that is believed to be in error or incomplete, the procedure for reviewing and correcting that record is given in Rule 11C-8.001, Florida Administrative Code. If you agree that the criminal history information is correct, but believe that the law has been incorrectly applied or interpreted in your case, you may appeal the decision of the FDLE. The appeal of a denial is to be handled within the court of competent jurisdiction.

In the event you have received a pardon for an offense, unless the pardon indicates on its face that it entitles the record subject to seal or expunge his or her criminal history record, the granting of a full pardon does not remove any condition of ineligibility for sealing or expunging a criminal history record imposed by the disposition of the pardoned offense. Neither a full pardon, nor any other type of clemency, will automatically expunge or facilitate the expungement of your criminal record. In order to have your civil rights restored you had to have been convicted (adjudicated guilty) of a felony that was the basis for your loss of civil rights. Persons who have been convicted (adjudicated guilty) of a felony are not eligible for a seal or expunge of their criminal history under Florida law, regardless of whether their civil rights have been restored.

Regarding Juvenile Records, the following considerations are relevant to the decision whether to seek the judicial sealing or expunction of a juvenile criminal history record. Prior to October 1, 1994 (for felonies), and July 1, 1996 (for specified misdemeanors), juvenile arrest records were not maintained by FDLE in the criminal history record system and would not be available to the general public unless the juvenile were treated as an adult. Juvenile records are subject to an abbreviated retention schedule, if certain qualifications are met, which results in the automatic expunction of the record after a specified period, under s. 943.0515, Florida Statutes. Juvenile defendants who successfully complete a qualified diversion program, as set out in s. 943.0582, Florida Statutes, may be eligible for expunction of their record as the term is defined therein. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedure, which are similar to those for adults, are found in s. 943.059 and s. 943.0585, Florida Statutes.

If you have a re cord expunged in another State or jurisdiction, you may be eligible for expungment in Florida provided the other record were sealed or expunged by operation of law (administratively or automatically, without intervention or action by the subject of the record, i.e., the defendant), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged.

The current processing time is thirty (30) working days or less from the date the application is received, processed, and mailed back to the customer. If the application is not complete at the time of submission the application will be returned. This will cause the application process to be delayed beyond the thirty (30) working day period.

As s. 943.0585(2)(f) and s. 943.059(2)(e), Florida Statutes require that an applicant have never secured a prior sealing or expunction of a criminal history record under current or former law, having an earlier seal or expunge order vacated does not remove this disqualification.

If the record is eligible and the court grants relief, FDLE will comply with the certified court order and seal or expunge the appropriate criminal history record. Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency or agencies involved with your case. The notification letter is to inform the agencies that FDLE has received and has complied with the order in accordance with the seal or expunge statutes.

FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV). These databases are utilized to determine the eligibility of an individual to have a criminal history record sealed or expunged.

A criminal offense such as DUI, Driving While License Suspended/canceled/revoked, or reckless driving may appear in the DHSMV database even though it may not be entered in the criminal history record system maintained by FDLE. Although non-criminal traffic offenses (such as careless driving) have no affect on eligibility to seal or expunge a criminal history record, an adjudication of guilty for any criminal offense renders the record ineligible for either form of relief.

If the record is eligible and the court grants relief, the Clerk of the Court by statute is responsible to certify a copy of the court order to the State Attorney’s Office or the Statewide Prosecutors Office and the arresting agency or agencies. The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, these agencies may include the Department of Corrections, Teen Courts, and Department of Juvenile Justice.

FAQ's: Sealing & Expunging Criminal History Records in Florida

  • 1. What is the benefit of having my record sealed or expunged? According to Florida law, you can legally deny or fail to acknowledge the arrests covered by the sealed or expunged record. However, you cannot fail to acknowledge or deny an arrest if you are applying to change your immigration status, are a defendant in a criminal case or are seeking:
    • a. Employment with a criminal justice agency;
    • b. Employment or contract with, or license by the Department of Children and Family Services, the Department of Juvenile Justice, the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
    • c. Employment or use by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly;
    • d. Employment or access to a seaport;
    • e. Admission to The Florida Bar;
    • f. or petitioning to seal or expunge.
  • 2. Generally speaking, who qualifies for sealing or expunging? A person who has NOT been adjudicated guilty (convicted) as an adult, and has not previously sealed or expunged may qualify, but there are many exceptions, see answers to number 3 and 6. Under s. 943.0515, Florida has automatic expunction of a juvenile record, at age 24 or 26, depending on prior history and arrest or conviction as an adult; expunction by petition of some misdemeanors after successful completion of pre- or post-arrest or teen court diversion program under s. 943.0582; and, expunction of an arrest record under s. 943.0581, for persons who have been arrested “contrary to law or by mistake.”
  • 3. What would disqualify me from having my record sealed or expunged?
    • a. If you have been adjudicated guilty (convicted as an adult) of a criminal offense, including a criminal traffic offense (e.g., DUI, DWLS), criminal ordinance violation, misdemeanor or felony.
    • b. If you were adjudicated delinquent (as a juvenile) on charges of: assault; battery; petit theft; carrying a concealed weapon; unlawful use of destructive devices or bombs; negligent treatment of children; assault or battery on a law enforcement officer, firefighter, or other specified personnel; cruelty to animals; arson; unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property.
    • c. If you were placed on probation or community control, but later violated the terms of your sentence and the judge converted the “withhold” to an “adjudication.”
    • d. If you were found guilty, pled guilty or no contest and have a “withhold of adjudication” on certain offenses, even as a minor.
    • e. If you ever had a prior record sealed or expunged in any jurisdiction (even in another state). Automatic expunction of juvenile records, expunction of records (pre and post arrest diversion), and expunction of arrest “contrary to law or by mistake” do not count as a prior expunged record.
    • f. If you have a seal or expunge petition currently pending in another case.
    • g. If you have an open criminal case, are on probation or community control, owe community service hours or have an unsatisfied court-ordered financial obligation such as court costs or restitution.

List of Non-Expungable Offenses

  • a. Abuse or aggravated abuse of an elderly person or disabled adult;
  • b. Act of domestic violence as defined in s. 741.28, Florida Statutes;
  • c. Aggravated assault/aggravated battery;
  • d. Arson;
  • e. Burglary of a dwelling;
  • f. Carjacking;
  • g. Child abuse or aggravated child abuse;
  • h. Computer pornography involving a child;
  • i. Drug Trafficking;
  • j. Hijacking;
  • k. Home invasion robbery;
  • l. Homicide;
  • m. Illegal use of explosives;
  • n. Kidnapping;
  • o. Lewd, lascivious, or indecent assault or act upon or in the presence of a child;
  • p. Manslaughter;
  • q. Offenses by public officers and employees;
  • r. Organized fraud;
  • s. Robbery;
  • t. 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 a person in familial or custodial authority;
  • u. Sexual battery,
  • v. Stalking and aggravated stalking;
  • w. Use of a child in a sexual performance;
  • x. Promoting a sexual performance by a child;
  • y. Possession with the intent to promote any photograph, motion picture, exhibition, show, representation, or presentation, which includes sexual conduct by a child;
  • z. Possession of a photograph, motion picture, exhibition, show, representation, or presentation, which includes sexual conduct by a child; and,
  • a. Voyeurism.

4. I have been arrested several times but have never been convicted of a crime or pled guilty or no contest, can I have all the arrest records sealed? No. Floridians are at a disadvantage in this respect. For purposes of sealing and expunging, Florida does not honor the concept of “innocent until proven guilty.” Even if you have been acquitted by a jury of the crimes charged (found not guilty), in Florida, you can only petition once to seal or expunge in your lifetime unless the court decides that an additional arrest is directly related to the original arrest.

5. What is the difference between sealing and expunging a criminal history record? See sections 943.0585 and 943.059, Florida Statutes. When a record is sealed, the public will not have access to it through the government databases. That means most employers will not have access to the information. However, city, county, state and federal Government and agencies, including the police and military, have a legal right to access criminal history records even if they are sealed. When a record is expunged, agencies that would have access to a sealed record will be able to know that criminal information has been expunged from the record, and would only have access to the record through a court order.