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Sealing Criminal Records: The Right Way vs. The Destry way

Having a criminal history has profound effects upon a person’s life. Obtaining a job can be difficult, if not impossible. Fortunately, the State of Florida has enacted a process for an individual to seal criminal records in certain cases, shielding those records from the view of the public. As always, this information is provided for educational purposes only and does not constitute legal advice. If you or someone you know would like to learn more about sealing criminal records, you should contact an attorney such as myself that can help you through the process. As you will see, the process is more complex that it might first appear and oftentimes judges are unfamiliar with or fail to comply with the law. A competent attorney will be certain to fight for your right to clear your name and allow you to move on to the next phase of your life.

The Process of Sealing a Record

Florida Statute 943.059 and Florida Rule of Criminal Procedure 3.692 lay out the process and requirements for sealing your criminal history. A person can only have one arrest (or one series of related arrests) sealed in their lifetime and the arrest must have resulted in a dismissal of the charge, acquittal (a finding of not guilty) or a withholding of adjudication. Convictions cannot be sealed. Additionally, there are several kinds of offenses which cannot by statute be sealed: most sex offenses and trafficking in narcotics.

If your charge is not explicitly excluded, your first step is to obtain a “Certificate of Eligibility”. To obtain this certificate, your attorney will gather all the appropriate documents and submit them to the Florida Department of Law Enforcement. Once the certificate is received, your attorney will file a petition to seal criminal history, attaching the certificate and an affidavit from you establishing certain facts about the case history. Assuming that the petition meets all of these requirements, the petition will then be evaluated by the trial court at a hearing. At the hearing, the judge will review the petition and listen to any testimony that your attorney thinks will assist the court in understanding how you have been rehabilitated since the date of the arrest.

The trial court has broad discretion to grant or deny the petition, so it is important to have a zealous attorney such as myself who will forcefully argue on your behalf. If the petition is granted, then the court record will be sealed; it will no longer be available to the general public and you can lawfully deny the existence of the arrest if asked (subject to several listed exceptions, such as seeking a job in a law enforcement or teaching field or in any future criminal proceedings).

Where Do Mistakes Happen?: The Judge Destry Example

While this process does seem fairly straightforward, judges can and do make mistakes in evaluating whether a petition to seal and expunge should be granted. In Gotowala v. State , 162 So.3d 33 (Fla. 4th DCA 2014) , Judge Matthew Destry was presented with a petition to seal a criminal record that met all of the requirements of Florida Statute 943.059 and Florida Rule of Criminal Procedure 3.692. The State filed no objection to the petition, yet the trial court “summarily denied” the petition. The Appellate Court ruled that Judge Destry had to afford the petitioner a hearing and give written reasons for denying the petition. The case was sent back to Judge Destry.

When sent back, the State Attorney again made no objection to the petitioner’s request to seal the record. And, again, Judge Destry denied the petition. This time, he denied the petition solely based on reading the probable cause affidavit from the arrest. The petitioner appealed that denial a second time in Gotowala v. State , 184 So.3d 568 (Fla. 4th DCA 2016) and the Fourth District Court of Appeal again reversed Judge Destry’s ruling. The Appellate Court ruled that the petitioner seeking a sealing is “presumptively entitled to an order to seal” and that the trial court cannot deny a petition “solely based upon generalized considerations” but must instead “provide a good reason based on the facts and circumstances of the individual case.”

Simply put, the trial court cannot rely solely on the probable cause affidavit in making its ruling. The case has now been sent down a third time for Judge Destry to handle the petition consistent with these well-established legal principles. Subsequent to the two rulings in Gotowala , Judge Destry was again reversed on a similar issue in Grey v. State , 2016 WL 1688530 (April 27, 2016) for handling another petition to seal by summarily denying the petition and relying solely upon the probable cause affidavit. For those keeping score, that is a third reversal on the same/similar issue for Judge Destry. The Appellate Court again explained that “a court may not deny a petition to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit; rather, the court must consider the facts actually established in the petitioner’s case.” In layman’s terms, the Court must rely on actual evidence.

As you can see, it is important to retain an attorney who is familiar with the process and familiar with the caselaw so that these issues can be addressed at the trial court level and preserved for appeal. In the examples above, the State Attorney’s Office in Broward County did not object to the record being sealed. Judge Destry’s actions are particularly alarming given the stance that the elected State Attorneys in Broward County and Dade County have taken to assist the public in the sealing process. The Office of the Broward County State Attorney hosts workshops to help assist those eligible receive and fill out the proper paperwork to seal their record. The Office of the Miami-Dade State Attorney also has a unit devoted to helping those with sealing issues. The prosecutors are doing their part to make it easier on people who are seeking to clear their records.

Unfortunately, in the above cases, we have a judge who not only denied the petition but he did so without any evidence and seemingly refused to follow well established legal principles. Don’t let this happen to you. Make sure that your rights are protected and that the law is followed. With today’s economy being so harsh, it is a struggle for Americans with or without a record to land high paying jobs. Don’t make it any harder on yourself to find work. It’s time to give yourself the best opportunity and path to obtain a good job. If you or someone you know would like to inquire about sealing a record, reach out to me as soon as possible.