FAQ: Can the Court Deny My Petition to Seal or Expunge My Arrest Record?

The attorneys at the Sammis Law Firm help people seal or expunge a criminal record in Florida. Our offices are located in Tampa, FL, but we help clients seal or expunge a criminal record throughout the State of Florida.

We charge a flat fee of $950 to seal or expunge the record and that includes all attorney fees and costs (with no hidden charges).

To start the process, just give us a call at 813-250-0500. You can come into our office to sign the paperwork or we can complete the paperwork and mail it to you today. Find out more about how long it takes to seal or expunge the record.

Because the court has the discretion to just deny any petition to seal or expunge a criminal record it is important to have the assistance of an attorney during the entire process. 

An attorney can make sure all of the paperwork is completed quickly and correctly. If one incident resulted in more than one charge or more than one arrest, then an attorney can make sure that all eligible records are included in the petition. You only get one chance to petition for a seal or expunge so you need to make sure everything is done correctly the first time. 

The attorney can make sure the petition is approved by the court as quickly as possible either with or without an attorney. If the court is considering denying the petition, the attorney can present evidence showing the court all of the reasons why the petition should not be denied. 

If you would like to seal or expunge your record call 813-250-0500 to discuss your eligibility and the services we provide. Read more about the process to seal or expunge a record in Tampa, FL.

Can the court just deny the petition to seal or expunge the record?

The short answer is that yes, although it doesn’t happen very often. As a general rule, even if the court determines that the petitioner has satisfied the statutory and rule eligibility requirements for the seal or expunction, the court still has the discretion to deny the petition to expunge or seal if it conducts an evidentiary hearing and articulates an evidence-based reason for denial. 

What’s the Difference Between a Seal or Expunge?

A petition to seal a record is brought pursuant to section 943.059, Florida Statutes. A petition to expunge a record is brought pursuant to section 943.0585, Florida Statutes (2008), and Florida Rule of Criminal Procedure 3.692.2. 

Expunged records “must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department [of law enforcement] must be retained in all cases.” § 943.0585(4), Fla. Stat. (2008). But an order sealing records “does not require that such record be surrendered to the court, and such record shall continue to be maintained by the department and other criminal justice agencies.” § 943.059(3)(e), Fla. Stat. (2008).

Section 943.0585, Florida Statutes (Supp.1998), relates to the expungement of criminal history records held by nonjudicial criminal justice agencies, whereas the expungement of judicial criminal records is controlled by Florida Rule of Criminal Procedure 3.692, because only the supreme court has the authority to establish rules relating to judicial procedure. State v. D.H.W., 686 So.2d 1331 (Fla.1996); Johnson v. State, 336 So.2d 93 (Fla.1976).

If the Court Denies My Petitioner Then Can I Appeal?

Yes. The appellate court reviews orders denying a petition to seal or expunge a criminal record under an abuse of discretion standard. See Oymayan v. State, 765 So.2d 812, 814 (Fla. 1st DCA 2000). 

The courts have consistently held that even if the petition and attachments conform with the requirements of section 943.0585 and rule 3.692.4, Section 943.0585 makes clear, however, that it “does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.” See Wells v. State, 807 So.2d 206, 207 n. 2 (Fla. 5th DCA 2002) (quoting statute). 

“[W]here a petitioner has satisfied all of the statutory requirements, section 943.0585 gives the trial court the discretion to deny expunction ... ‘if there is a good reason for denial based on the facts and circumstances of the individual case.’ ” Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009).

Are There Any Limitations on the Court’s Discretion?

Florida law recognizes some limitations on the court’s discretion. The court must conduct a hearing and have a specific factual basis to support the denial of the petition to seal or expunge. See Cole v. State, 941 So.2d 549 (Fla. 1st DCA 2006). In Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009) the court held that the trial court abused its discretion in denying the petition to expunge based on a prior offense because “there was no evidence presented at the hearing to support this finding.”

In Murphy v. State, 363 So.2d 581, 582 (Fla. 4th DCA 1978), the appellate court reversed the order denying expunction because the state “did not present any evidence at the hearing to refute appellant's sufficient allegations and proof but merely objected to the expungement”.

In VFD v. State, 19 So. 3d 1172, 1174 (Fla. List. Ct. App. 2009), the court denied a petitioner to expunge on the basis that the records, if not expunged, might-for reasons applicable in any case-prove useful in the future. The appellate court found that this reason fell short of the exercise of discretion that the statute requires. See Steinmann v. State, 839 So.2d 832, 832 (Fla. 4th DCA 2003) (holding the failure to exercise discretion to be a reversible error). 

Furthermore, the trial court abused its discretion by not hearing evidence and exercising its discretion based on the facts and circumstances of petitioner’s specific case. 

Before either granting or denying the petition, the court must hold a meaningful hearing and articulate reasons for any denial based on the facts and circumstances of his case. 

Finding a Tampa Attorney to Seal or Expunge a Criminal Record

If you want to seal or expunge a criminal record then contact an experienced criminal defense attorney in Tampa, FL. Call 813-250-0500 to discuss your case and see if you are eligible. We can begin your case today.

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