So, talking about sealing or expunging criminal records is all well and good, but what do these documents actually look like? There’s several documents that are filed with the clerk of court, one being something the Petition below, and the other being an Affidavit in support of the petition. (Some of the documents you’re not seeing here are the notarized Application for Eligibility, the Fingerprint Card, the certified copy of the case disposition, and the Order Granting Petition to Expunge, etc.).
Many times the prosecutors will file objections to a Seal or Expunge petition. The reasons are varied, but here are a few common scenarios.
First, object to any request by the prosecutor that the court to take judicial notice of the court file. You must object to this sort of nonsense, as the State must prove up their objection to a Petition via actual evidence–the court file is not evidence. See Shanks v. State, 82 So.3d 1226 (Fla. 1st DCA 2012). Even if the judge, somehow, grants the state’s request that the court take judicial notice of the court file, you must then object to the reading of the police report found in the court file, itss just hearsay, and hearsay cannot be the reason for denying a petition to seal or expunge.
Second, look out for objections due to the “seriousness of the charges” or the “nature of the charges”. After all, once a petitioner has satisfied the requirements of Section 943.0585, there is a presumption in favor of sealing and expunging. Don’t let the prosecutor testify as to how serious the charges are at the seal or expunge hearing. (Yes, we have hearings on these things from time to time) What the prosecutor says is not evidence. What is found in the Arrest Report in the file is not evidence. A judge is only entitled to deny a seal or expunge when the state has presented actual evidence. So, if the only thing the prosecutor does is claim that the charges are serious, and reads the police report (hearsay), the state has presented absolutely zero evidence at the hearing and the judge should grant the Petition to Expunge.
An example of a Petition to Expunge is listed below, as well as the Affidavit that must be filed along with the Petition. A Petition to Seal would look exactly the same as the Petition to Expunge, except, replace the term “expunge” with “seal.” Enjoy.
IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT, CRIMINAL JUSTICE DIVISION, IN AND FOR ORANGE COUNTY, FLORIDA
CASE NO. 48-2010-MM-1234-O
STATE OF FLORIDA,
PETITION TO EXPUNGE RECORDS
COMES NOW the Defendant, STEVE JONES, by and through the undersigned attorney, and moves this Court, pursuant to Rule 3.130(d)(e), Florida Rules of Criminal Procedure, to Expunge the record in this cause. In support thereof, the Defendant states as follows:
1. That on February 1, 2010, the Defendant, Steve Jones, was arrested for Possession of Cannabis under 20 grams,Possession of Drug Paraphernalia, Petit Theft, and Driving Under the Influence (DUI).
2. That on May 1, 2010, the Honorable Judge dismissed all charges.
3 That the Defendant has not been adjudicated guilty of any of the charges stemming from this case or alleged criminal activities.
4. That the Defendant has not secured a prior records expunction or sealing under this Section, former Section 893.14 or former Section 901.33.
5. That a Certificate of Eligibility to Petition for an Expunge Order has been obtained from the Florida Department of Law Enforcement as required by Florida Statute 893.14 for the case and the original of such certificate is attached to the original Petition to Expunge filed with the Clerk of the Court.
6. That Petitioner’s excellent employment history and good reputation has been tarnished and jeopardized by the accusations underlying this case, and that Mr. Jones is completing his bachelors degree in Nursing at the University of Central Florida, and therefore in the interest of justice this case should be expunged. Mr. Jone’s advancement opportunities in the nursing job market have been harmed and jeopardized by this case. [this is the paragraph everybody screws up, as the law requires that a Petitioner show “good cause” as to why the court should seal or expunge the record. And, you have to be careful about what you are claiming is good cause. For example, in the case of Gonzalez v. State, the Petitioner wanted to seal his record so that he could continue being a fire fighter. Sounds like a good idea, right? Wrong. The Court denied the expunge, stating that “the public places its trust in fire fighters who at any given moment may be called to render assistance in a life threatening situation” and as such, the court was unwilling to seal his arrest for unlawful purchase of cocaine. 565 So.2d 410 (Fla. 3rd DCA 1990). By the same token, you have to watch out for prosecutor objections to a seal or expunge that would simply apply to any similar charge. For example, the judge cannot deny an expunge if the reasoning is that the Petitioner’s criminal history may prove useful in a future case, as that sort of thing would apply to every seal and expunge ever granted. Baker v. State 53 So.3d 1147 (Fla. 1st DCA 2011). So, we have to fight any objections to a seal or expunge that are generic in nature, like the objection in Baker. Most prosecutors know the law on this sort of thing, so you’ll only see these sorts of objections from prosecutors who are new to the Seal & Expunge division. Just saying.
WHEREFORE, the Defendant, Steve Jones, moves this Honorable Court to Expunge any criminal history record information reference the arrest of February 1, 2010, and reference this incident, in the instant case by the Orange County Sheriff’s Office for the charges listed above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail/hand delivery to the Orange County Sheriff’s Office, 2500 W. Colonial Dr, Orlando, and the Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida; this the ____th day of _______, 2010.
THE LAW FIRM OF JOHN GUIDRY, P.A.