the expungement process in florida

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The Expungement Process in Florida

All rights reserved. No part of this book may be used or reproduced in any matter whatsoever without written permission of the author, except in the case of brief quotations embodied in critical articles or reviews.

This book is designed to provide information in regard to the subject matter covered. It is sold with the understanding that the published material is not legal advice and there has been no rendering of legal or other professional services. If legal advice or other expert assistance is required, the services of competent professional personnel should be sought.

Accordingly, no liability can be assumed regarding how the information is applied to your particular personal situation.

No client relationship has been created or can be inferred by acquisition of this book.

By William D. Umansky, Esq.

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Table of ContentsIntroductionIntroduction.................................................................................................................................................4

What is an Expungement?...........................................................................................................................5

Beginning the Expungement Process..........................................................................................................7

Completing the Expungement Packet.........................................................................................................9

The Certificate of Eligibility........................................................................................................................12

The Petition and Order to Expunge...........................................................................................................15

Organizing and Sending Out the Documents.............................................................................................18

Waiting for a Response and Approval.......................................................................................................20

Conclusion.................................................................................................................................................23


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If you are reading this material, that means you are concerned about getting a criminal charge expunged. You may be someone that feels strongly about taking charge of your own matters and really want to do what it takes to complete the expungement process yourself. Right now, you may be facing some potential problems with obtaining a job, being approved for housing, or admittance to an institute of higher education because of charges you have had in the past. I know after 20+ years of practicing law that people with even just one criminal charge may not have the opportunities in their future that they expected.

I wrote this guide to give you the knowledge and power to take on the process yourself, so that you can move on with your future.

-William Umansky “The Lawman”

If you would like to discuss your case with me, or any attorney of my firm, just call us. The meeting is free and we would be happy to sit

down and talk to you.

1945 E Michigan St Orlando, FL 32806

407-228-3838www.TheLawMan.net


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How do you Expunge your Case?

Criminal expungement means, in essence, to destroy the criminal record. But in Florida you have to be careful, because expungement does not mean a one hundred percent destroyed. In most cases if

you expunge your record, you still need to be aware that it is still out there for certain portions of the population to see. For instance, if you want to be a:

Lawyer Teacher, or deal with children in almost any

capacity Federal Government employee or Law enforcement

What an expungement does for you is it allows you to legally deny having ever been arrested or charged with the crime. This right is very powerful for you for many reasons. It can be used in order to put your past behind you, and get that second

chance you need. What an expungement is not is a one hundred percent foolproof way of


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preventing everyone in society from seeing your record, and you need to understand that. So, you will be able to lawfully deny the criminal charge for a lot of different jobs. Your neighbors, the public, and your relatives may not necessarily find it.

However in the age of the Internet you need to realize that a lot of people do not have to honor a judge’s ruling on the expungement as there are third party companies that are not covered under the Florida Statute. For instance, your name and booking photos could be plastered all over the net. Websites pop up that make money off the mug shots. A judge’s expungement order may not remove that record for that photo or information. However, some of the companies will take your photo down when a lawyer has sent an order to them or if you pay them yourself!

The good news is the Clerk, the police, the State Attorney’s Office, the arresting agency that arrested you, the county sheriff and the Florida Department of Law Enforcement (FDLE) are required by law to destroy the record.

Expunging your record is critical process – not only putting your past behind you physically, but


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mentally, so you are free from baggage that an arrest left you. We will now go on to discuss some of first steps of this process.

Beginning the Expungement Process

The first step is information and document gathering. When you want to expunge a crime you were charged with, the most important thing you need to realize is that the State Attorney’s Office has to file a nolle prosequi, which is a fancy term for the charge being dropped or dismissed. The State can also file a No Information Notice which simply states that the State decided not to file charges in the first place. If, and only if you had that


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charge dropped, dismissed, or not filed on,

will you be potentially eligible to expunge your record. So, you have to find the disposition which contains details of what results with your case. In order to get that info, you will have to go down to the clerk of court, look through the archives, either on the computer, or ask the clerk to give you a certified disposition of your charge and the arrest affidavit. You will need the arrest affidavit and a certified disposition because you will need to know the date you were arrested, the agency that arrested you, and the ultimate disposition of those charges.

When you go down to the clerk, expect that there will be a line, and you will have to wait in order to get that information. Sometimes that information is not easily accessible, and you will have to go down to records management, and possibly order the file in advance. If your case is too old, the clerk may have purged your record. In that case, there are other documents you will get, and you may not be able to get the certified disposition and arrest affidavit. It is very important that you get the document certified. If you do not get them certified, and you try to apply for the Certificate of


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Eligibility later on, the Florida Department of Law Enforcement, which grants this certificate, will not give it to you. So, make sure that clerk stamps it.

The next step of the process is getting that expungement packet. The expungement packet includes a number of documents and information for you. It usually also includes the expungement statute, which you need to read very carefully. It includes a fingerprint card you will need to get fingerprinted at a local police agency. There will be an instruction sheet telling you how to fill out the information that is requested in the packet. You will have to sign an affidavit under oath that you have never been convicted of a crime before.

Lastly, there will be an application and that application is required to be filled out in its entirety and signed before a notary.

Completing the Expungement Packet


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The next step of the process is filling out the application to the Florida Department of Law Enforcement. You want to put your complete name (last name, the first name, and your middle name). You will also be asked to fill out the following:

Maiden name (if any) Your divorced name (if

applicable) Your residence Your date of birth Your race, sex, and your social

security number Permanent address Arresting agency

Date of arrest Driver’s license number The criminal charge(s) you seek to expunge

All of this information is extremely important, and if you do not fill out any part of it, the Florida Department of Law Enforcement will not issue the certificate which will delay the process of expungement.

Remember that you need to make sure that the arresting agency’s date of arrest is correct, by looking at your charging affidavit. If you take a


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guess, or you base the information upon the clerk’s computer, you might make a mistake, and FDLE will not grant you the certificate.

The judge still has the choice to make, but you will not even get that far, unless you fill this information out correctly.

Remember, the application requires you to list your charges, and you need to put them all down, and it is going to ask you to swear under oath that the charges are correct, and to the best of your knowledge. It is important that you make sure that you put down all of the charges, and that you check off on the expunge part, not the seal part. This is especially true if you are looking to expunge a dropped or dismissed record. After you fill out the application, you will next send the application over to the State Attorney’s Office for a section the prosecutor has to fill out. Make sure you get the application to the right State Attorney’s Office.

You should call the State Attorney’s Office, identify yourself, ask to speak to the expungement

clerk, and make sure that they give you the correct address and the correct office to send your application. Once an Assistant State Attorney gets this document, they will review the record, see if


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your charge is dropped, and then sign off on it if they can identify that your charge was dropped,

dismissed, or never filed upon.

Prepare to be patient, but realize that if it does not happen in 30 days, you can call over to the State Attorney’s Office, and try to get in touch with them. It is not likely that you will ever speak to the prosecutor, because prosecutors do not want to talk to unrepresented people. But you should be able to get the assistant. Be prepared to be frustrated, because sometimes you will get the assistant’s voice mail, or e-mail and they may not respond right away. Be persistent, be polite, but remember to not get angry. If you do, it is more than likely that that your application will be put on the bottom, and you will wait even longer.

While your application to the State Attorney’s Office is in the mail, the next step of the process is to go down to a local police agency, take the fingerprint card with you, pay between five and twenty dollars, and get yourself fingerprinted. Before you go to the police station, realize that not all police stations do fingerprinting, and sometimes they have inconvenient times. Do not be afraid when you go. You are not going to be arrested,


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unless you committed a new crime, or have a warrant for another charge.

You get the completed application back from the State Attorney’s Office, you have your fingerprint, you are now ready to send it off to FDLE.

The Certificate of Eligibility

After you get the application back from the State Attorney’s Office, the next step of the process is to get that Certificate of Eligibility from the Florida Department of Law Enforcement. What you need to do is take the application and the fingerprint card, and write a letter to FDLE in Tallahassee to give them that information along with the certified disposition. As you may remember, a certified disposition has to show that the charge was dropped, never filed on, or dismissed before you


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can become eligible for the Certificate of Eligibility. In sum, you are going to need these three things: the fingerprint card, the application, and the certified disposition. If you are missing any one of these 3 things, then you are not going to get the Certificate. The last thing you’re going to need to do is put a certified check or money order in the mail to FDLE for the cost of processing your application, made out to the Florida Department of Law Enforcement. That check is very important and you want to make sure that you do not send them a check that is going to bounce. Make sure you send a money order, check, or certified funds, so that you have a record of it.

Be prepared, however, that FDLE will make you wait. You are not the only one that is standing in line to get this certificate of eligibility. In fact, there may be

hundreds or thousands of applications before you and it could take anywhere from three to nine months to get that application in and


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approved by FDLE so that they issue a certificate of eligibility. Remember, without that Certificate of Eligibility you cannot even ask the judge to expunge your record. What is critical for you to understand is that when you apply, you need to make sure that you have no prior convictions or adjudications on any charge, of any kind whatsoever. It does not matter whether you were a juvenile or adult, or whether it is in Orange County, Seminole County, Lake County, Brevard County, Polk County, Osceola County, or any other county in the State of Florida, or any other state. If they find out that you have a conviction, you can be in trouble because you swore under oath in the application that you have never been convicted before, and therefore you could potentially be prosecuted for perjury.

Make sure before you apply that you have checked your background for any prior criminal arrests or charges, convictions, summons to appear, notices to appear or criminal citations that you received for any criminal cases. If you had a charge in another State, make sure you go back to that State, pick up the disposition of the charge, look at it carefully, and make sure that you are not convicted or adjudicated guilty.


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When you send that information off to the FDLE, expect a three to nine month wait. If you do not

hear from them within a 60 to 90 day period, give them a call, but again be polite to the FDLE as they are Government employees. You will not

get anywhere by acting rude over the phone. In fact, they could hold and delay your application if you are not nice to the people that you are calling.


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The Petition and Order to Expunge

Next, you are going to create a Petition to Expunge your record. You can get a form petition in your local law library or sometimes online. Make sure that it is the correct and latest petition that is provided by the State Supreme Court. If it is an older petition and does not have the exact language that you need in it, believe it or not, the prosecutor will likely object to your petition being granted. If it is a lawful objection, the judge may not grant the expungement and you could ultimately have to restart the process all over again.

One little trick that you may not know, but is very important, is that in some jurisdictions, the Supreme Court form is not

good enough and you may need to include additional information as to why this expungement is important to you.

You will not see it in the statute books or even in the form.


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But when you apply without that language some prosecutors will automatically object to your petition.

If you are doing the Petition yourself, you have to make sure that you cite the correct Criminal Rule of Procedure in Florida regarding expungement. You also need to make sure that you put in the correct day of arrest, the correct law enforcement agency that arrested you and the charge(s). You also have to attach several things. You want to make sure that you have the Certificate of Eligibility affected. Before doing so, you want to look at that Certificate of Eligibility very carefully.

Is the seal of FDLE on there? If not, your petition is not going to get granted.

You want to make sure that the charge is correct, because if it is not, your petition is not going to get granted.

You also want to make sure that the date of arrest is correct. Again, if it is not on there, your petition is not going to get

granted.

Is your name misspelled? That could also be an issue.

The next thing that you are going to want to attach, in addition to the Certificate of Eligibility, is the affidavit. This affidavit discloses the date of


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arrest, the agency that arrested you, and your charge. The affidavit also discloses the type of case and charge it was, as well as that your eligibility for the relief, meaning you are eligible for the expungement. You must swear that you were never convicted or adjudicated guilty of any crime. You must be careful here because if you have any prior convictions and you fill out the affidavit, you can be charged with a 3rd degree felony for perjury.

After you prepared the Petition and the affidavit, you will attach the affidavit and the Certificate of Eligibility from FDLE to your petition. Now you need an order to expunge. Make sure that the order is the current order that is required by the court. Just like the petition, if you use the wrong order, you usually do not have a shot at the judge granting your petition to expunge because of a technicality. The order to expunge is important, because if the order is not correct, the State attorney may agree that your petition is adequate, but object that your order is not. Your order also has to contain all of the appropriate agencies that are involved. The order has to include the State Attorney’s Office, the


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local police agency that arrested you, FDLE, and the County Sheriff’s office where the offense occurred, as well. Once you have prepared the affidavit, petition and order, you will file the petition with the clerk and the other appropriate agencies and send a copy of the petition and order off to the judge.

Organizing and Sending Out the Documents


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You will need to make photocopies of the application, petition, certificate, affidavit and order. Write a letter to the judge with a copy of all of the aforementioned items and send it to the judge’s judicial assistant. Make sure that you get the correct judge, judicial assistant, and address because if you send it to the wrong judge, your stuff may get returned, creating another delay in

the process.

When you look at the website of your Clerk of Court, you may see that a different judge is handling your case than the one that handled your case in the beginning. You will need to make sure that you have the most up to date judge who is going to handle your file, or you should be prepared

to be delayed. Where else do you send the petition along with the accompanying documentation? You must send your original copies to the clerk of court. If you send your original petition along with your original Certificate and they go to the law enforcement agency, or the clerk, or the State Attorney’s Office, and they lose it, then you are out of the original Certificate of Eligibility. If you lose that certificate, you will not get your petition


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granted and you will have to reapply and start the entire process all over again, which will take an additional six months to a year!

You want to make sure that you send your petition to all of the agencies that are on your order:

The Clerk of Court (original) The State Attorney’s Office The LEA that arrested or charged you The Sheriff’s Office of the county that you

were arrested in. FDLE

If you miss any of the agencies, your petition is likely to be denied, so make sure you serve all of the agencies involved. Deliver a copy of your petition, certificate, affidavit and the order to all of the agencies because if you do not give that to them, often the prosecutor will object and the judge could deny your petition. Now that you have gotten your petition, your certificate of eligibility, your affidavit and your order all properly filled out and served on all of the different agencies, what happens next?


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Waiting for a Response and Approval

The Prosecutor will review your petition and order and then state their position regarding the petition. The prosecutor will either agree, state no position, or they could do nothing. How long does that process take? It can take a while because you are unrepresented and the prosecutor has to deal with hundreds of applications as well as other appeals and criminal matters!

If the State of Florida objects to your petition, you may very well be in for a fight, because most judges are not always going to grant an order when the State Attorney has filed an objection. In fact, in many cases, they will not.


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The judge may set your matter for a hearing. If you get a hearing, do not panic! The judge will want to talk to you and you are going to need to prepare for that hearing. You need to show up well dressed, and perhaps a witness that can testify to your character.

You can bring an employer who can testify to your work history, or a priest, teacher, or anyone that can tell a judge that you are worthy of getting your case expunged. Be prepared for tough questions by the judge as he or she may ask about the charge. The judge may ask why you think it is necessary to get this expunged and he or she may challenge you about some other unlawful behavior that you may have committed but were not convicted. Remember, if you were convicted of any

charge, you would not have gotten that Certificate of Eligibility. The waiting process, assuming there is no hearing, can be 30 to 90 days.

You should definitely stay on top of the judicial assistant, who is the judge’s assistant, and find out when the order has been granted. However, do not call the judicial assistant and treat them like they are less than a judge. The judicial assistant is one of the most powerful people in this whole


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equation. Imagine that you call the judicial assistant and you say, “Where is my order,” and you are rude. Do not think for a second that the judicial assistant will not go back to the judge and say, “Mr. and Mrs. so and so called, they were not polite, they were rude, and in fact they were nasty.”

What do you think the judge is going to do then? Be patient. Contact the judicial assistant no more than once every 30 days, and ask them politely what the status of the order is. The judge will either grant the order, request a hearing, or in some cases, deny the order. Hopefully, for the reasons explained before, the latter will not happen, based upon the fact that you did everything technically correct. Be patient, wait for that order, and if it does go to a hearing, get ready, be prepared, and be confident that you deserve a second chance.

If and when the order is granted by a judge, a copy will be sent to the clerk’s office. The clerk should send you an invoice. This invoice usually includes the filing fee (per the Florida Statutes) and possibly fees to send out additional copies. A typical fee could range anywhere from $50 to $100 dollars. Please understand your record will


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not be expunged until this fee is paid. Some counties differ and require the filing fee to be paid at the time you give the petition to the clerk. You may want to contact the clerk at the time you file your petition to see what that county requires.

In some counties, once this fee has been paid. The clerk may send you an original certified order of expungement. Please keep this for your records as it is the only original, and at this point, your record will be destroyed and you will not be able to get another copy.


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Conclusion

We believe clients should educate themselves on legal issues. I know that self-educated clients become better clients of our law firm because they are informed and confident of decisions they make, and confident of the

advice we give them. We hope you found this information helpful. If you have any other questions about finding a

lawyer for yourself or a loved one, please do not hesitate to contact me by telephone or e-mail. Please remember

this guide is for informational purposes only and not intended as legal advice.

If you have questions or would like me to review your case, please contact us to schedule a free

appointment

Phone: (407)228-3838E-Mail: [email protected]


mailto:[email protected]

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