Florida attorney Reginald Garcia has written an article entitled “Florida Executive Clemency:  Seeking Mercy and Justice for Convicted Felons.”  In this article, Mr. Garcia discusses changes in Florida’s clemency law that went into effect earlier this year.    These changes affect such things as the restoration of civil rights, full pardon and firearm authority, and prison commutations.  I highly recommend Mr. Garcia’s article to anyone who is interested in learning more about these very important changes.

Wells then appealed the judge’s decision to Florida’s Fifth District Court of Appeal which ruled that the lower-court judge had to hold a hearing before deciding how to rule on Wells’ petition.  The appellate court stated, “[W]e believe that once the court was presented with a proper petition for sealing and expunction, unopposed by the [prosecutor], the matter should have been set for hearing, as requested by the [prosecutor], and not summarily denied.  [Florida law] contemplates that a hearing will be afforded when requested.”

In other words, the appellate court did not say that the lower-court judge was required to expunge Wells’ criminal record; however, the lower-court judge was required to set the matter for hearing before deciding the issue.

S.L.P. appealed the judge’s decision to Florida’s Third District Court of Appeal and won!

The appellate court stated:

1.  A judge may deny someone’s request to seal her record if there is a good reason to do so based upon the facts and circumstances of that particular case.

2.  However, a judge’s discretion to deny such a request is not without limits.

3.  The public’s interest in having access to someone’s criminal-history record is not, by itself, a sufficient reason to deny an individual’s request to seal her record.

4.  The lower-court judge was ordered to seal S.L.P.’s record.

Mr. Baker appealed the judge’s ruling to Florida’s First District Court of Appeal.  That appellate court agreed with Mr. Baker that the judge’s reasons for denying his request were not sufficiently related to the particular facts and circumstances of his case.  In so doing, the Court stated that:

1.  Although Florida law does not give anyone the right to have his criminal-history record expunged, satisfying the legal requirements for having one’s record expunged does create a presumption in favor of expunction;

2.  When someone has satisfied the legal requirements for having his record expunged, a judge abuses her discretion in denying a request for expunction if she does not have a factual basis for doing so;

3.  When deciding whether to expunge a record, a judge must weigh the policy of public access to records against the “long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty”;

4.  A judge must base her decision on the facts and circumstances of each particular case and not solely on the nature of the charge.

5.  It is improper for a judge to deny someone’s request to expunge his record based upon facts that would apply to any person who is trying to expunge his record.

6.  In Mr. Baker’s case, the judge erred in denying his request to expunge his record because there was no evidence indicating that Mr. Baker worked in a position of trust, that he had more contact with children than the average person, or that his job placed him in the position of having unsupervised contact with children.

The First District Court of Appeal concluded by sending Mr. Baker’s request for expunction back to the trial judge so that she could reconsider her decision in light of the appellate court’s ruling.

The relevant facts in this case are that VFD filed a petition to expunge all criminal history information in the custody of any criminal justice agency and the official records of the court documenting his arrest for the charge of aggravated assault with a deadly weapon by the Jacksonville Sheriff’s Office. The opinion states:

“When the hearing began, [VFD] was the first witness. After he had answered two questions, the [judge] interjected: ‘Let me stop you for a moment. If I recall it was not that the [prosecutor] believed he was not eligible, there was some factors they wanted to present, so let me hold off on his testimony because I don’t think anyone denies that he’s eligible. Let me hear from the [prosecutor] and let you respond after they’re done.’ This brought to an end the evidentiary portion of the hearing.

[The prosecutor] told the court that the arrest occurred when VFD pointed a gun at an air-conditioner repairman in the course of an argument, that officers found the gun under the seat of a truck, and that the officers ‘also testified by their reports that this defendant was belligerent with them.’ The [prosecutor] represented that ‘it appeared from the reports that [VFD] had shot at someone in self-defense in April of 2008 which was about three months prior to this incident,’ and argued against expunging the records because ‘this is a type of case that could be used as William’s Rule if any future case were to come up with similar situations.’ The [prosecutor] told the [judge] that it ‘appears as if there was a witness who would testify this is what happened to him,’ and that ‘the police officers would have testified there was a gun.’

[VFD's lawyer] responded that the charges . . . were dropped, and that he could present the testimony of VFD’s wife, who was present during the incident, that VFD never pulled a gun. He also stated that he could put on evidence to prove that the April 2008 gunshot was fired in self-defense.

The [judge] spurned VFD’s offer to present evidence, stating, ‘I don’t think it’s my role at this point to determine whether that event in fact happened. My role is to determine whether it would be appropriate to preclude law enforcement from having access to this information should they need it in the future.’ The [judge] determined ‘based on the totality’ of what had been presented at the hearing that the records would be sealed, but not expunged, so that it could be determined at some later time whether it would be appropriate for law enforcement to have access to the records.”

VFD appealed the denial of his petition to Florida’s First District Court of Appeal which concluded that the way the judge conducted the hearing in VFD’s case was incorrect.

The appellate court began by noting that “where a petitioner has satisfied all of the statutory requirements, [Florida law] gives the [judge] the discretion to deny expunction if there is a good reason for denial based on the facts and circumstances of the individual case.” But because of the absence of evidence supporting the prosecutor’s statements in VFD’s case, the judge had no specific factual basis to support her denial of VFD’s petition to expunge his record. The court of appeals stated that “[d]enial of VFD’s petition on grounds that the records, if not expunged, might–for reasons applicable in any case–prove useful in the future [was an insufficient reason to deny VFD's petition]. . . . The [judge] was alerted to factual disputes, including whether a gun was used during the incident that led to VFD’s arrest. No evidence refuted VFD’s version of events.”

As a result, the appellate court sent VFD’s case back to the lower-court judge and ordered her to hear evidence and to state specific reasons regarding why she was either granting or denying VFD’s petition.

The facts in the Cline case are as follows:

In 2008, Cline requested and obtained a court order sealing the criminal-history record in the 2005 cocaine case.  Later, he filed another petition with the court asking to have his 2004 criminal-history record sealed.  The judge denied that request based on his belief that Florida law permits an individual to get only one criminal-history record sealed.  (Under certain circumstances, an individual can get more than one criminal record sealed, but none of those exceptions applied in Cline’s case.)

Mr. Cline appealed the judge’s decision to Florida’s Fifth District Court of Appeal.  That appellate court ruled against Mr. Cline because subsection 2 of Florida statute section 943.059 implies that the Florida Department of Law Enforcement cannot issue someone a certificate of eligibility to get a criminal-history record sealed if that person has obtained a prior sealing for a different case.   Because Mr. Cline’s 2005 case had been sealed, the court of appeal ruled that his 2004 case could not be sealed.

1.  Is trying to get hired by a criminal justice agency;

2.  Is applying for admission to The Florida Bar;

3.  ”Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly”;

4.  ”Is seeking to be employed or licensed by 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”; or

5.  Is seeking authorization from certain Florida seaports for employment with or access to such seaports.

Insofar as an expunged criminal record is concerned, Florida law states that information related to the existence of an expunged record is not provided to anyone.  However, notification that a record has been expunged is provided to the same agencies mentioned above in paragraphs 1 through 5.

• The Florida Computerized Criminal History Central Repository for Florida arrests (state check).
• The FBI’s national criminal history database for federal arrests as well as arrests from other states (national check).
• The Florida Crime Information Center for warrants and domestic violence injunctions (hot files check).

A national background check is based only on your fingerprints, while a state check is based upon your name (and other identifying characteristics) or your fingerprints.

A Level 1 background check in Florida refers to a check based upon your name and employment history.  A Level 2 background check, on the other hand, refers to a state and national check based upon your fingerprints and consideration of disqualifying offenses.  This more intensive background check applies to those employees who are designated by Florida law as holding positions of responsibility or trust.

Finally, you should note that while both state and federal criminal-history databases are able to search for your arrests, warrants, and other information, neither database is able to search for specific crimes that are on your record.

In 1993, Mr. Anderson pled no contest to charges of grand theft and aggravated stalking in connection with an incident in which he grabbed a former girlfriend’s purse and ran away.  The purse was recovered and no violence or threat of violence was involved. The judge withheld adjudication and sentenced defendant to two-and-one-half years on probation along with counseling and restitution.

Anderson had no prior criminal record, and he had a responsible job.  After completing all of his probation requirements early, Anderson’s probation was successfully terminated after just one year and eleven months.

Anderson then filed a petition with the court to seal his criminal-history record.  He obtained the required certificate of eligibility from the Florida Department of Law Enforcement. However, the trial judge denied Anderson’s petition, so Anderson appealed to Florida’s Third District Court of Appeal.

The appellate court disagreed with the trial judge and ruled instead that Anderson’s petition should have been granted.  The court of appeals noted that the reasons given by the trial judge for denying Anderson’s petition was that Anderson had already received a break from the criminal justice system when adjudication was withheld in his case and when his probation was terminated early.

However, the appellate court did not think that these reasons were sufficient to deny Anderson’s petition because:

1.  This was a first offense as well as a nonviolent crime, so it was not unusual for the trial judge to have withheld adjudication.

2.  The fact that Anderson did so well on probation that the judge decided to successfully terminate his probation should have been a factor operating in favor of sealing his record rather than denying it.

3.  Although Anderson’s charges were serious, the trial judge should have based his decision on all of the relevant facts and circumstances rather than on just the nature of the charges.