Judge Waves His Magic Wand (But Cannot Deny a Seal and Expunge)

By: John Guidry

Most decisions by judges do not get overruled, even when they are wrong. For some, this only reinforces bad behavior because challenges are rare (appeals are expensive).

One of the most commonly overturned decisions is the denial of a sealing or expunging of a criminal record.

Sealing is an “abnormal” process for most judges because the law presumes it should be granted. If the petition is drafted properly, the judge is stripped of meaningful participation. So, why all the denials? Judges like to hang their hat on one little provision in the statute: “Any request for expunction may be denied at the sole discretion of the court.”

What does “Sole Discretion” mean? Does it mean the judge can deny you just because they feel like it? No.

Did a judge deny your petition to seal without a good reason?

“Sole discretion” is not a blank check. Call John today at (407) 423-1117.

The Case: M.N. v. State (The One-Sentence Denial)

To show how limited a judge’s power really is, let’s look at the Orlando appeal found in M.N. v. State, 18 Fla. L. Weekly Supp. 921a (9th Cir. Ct. 2011).

• The Charge: Misdemeanor Disorderly Conduct.
• The Petition: M.N. filed to seal the record.
• The Objection: The prosecutor objected but presented no witnesses and no evidence at the hearing.

The Denial: The County Court Judge (who is usually excellent, by the way) denied the petition with a single sentence: “The Defendant’s Petition to Seal is hereby DENIED.”

The First Appeal: The appellate court sent the case back, ruling that a one-sentence denial is unlawful. If you are going to deny a seal, the law requires an explanation (Kanji v. State).

Round 2: The “Magic Words”

The judge tried again. He issued an amended order with some fancy legalese:

“Based upon the nature of the offense and the totality of the circumstances, the Court exercises its discretion and Denies the Defendant’s Petition.”

Sounds official, right? Wrong. The Appellate Court struck this down too.

Why M.N. Won: The Appeals Court ruled that these “magic words” were hollow.

1. No Evidence: The denial must be based on evidence presented at the hearing. Since the prosecutor presented no witnesses, there were no “circumstances” to rely on.
2. Vague Reasons: Saying “Totality of the Circumstances” without listing the actual facts is legally lazy.
3. Nature of the Offense: You cannot deny a seal just because you don’t like the charge (Disorderly Conduct). The legislature already decided which charges can be sealed; the judge cannot override that.

The Lesson: A judge cannot simply wave the magic wand of “discretion.” If there is no evidence against you, the petition must be granted.

John’s 2026 Update: Automatic vs. The Hard Way

Note: The system has become more automated since M.N., but the fight continues for many clients.

1. The Good News: Automatic Sealing As of 2026, if your charges were Dismissed or Dropped (Nolle Prosequi), you likely do not need to file a petition. The Clerk of Court now automatically seals these records in many cases.

• The Limit: This applies to arrests where no plea was entered.

2. The Hard Way: “Withhold of Adjudication” If you entered a plea of “No Contest” and received a Withhold of Adjudication (probation but no conviction), you do not get automatic sealing. You still have to file a petition, and you still have to face the judge.

3. Judges Still Try the “Magic Wand” In 2026, we still see judges trying to deny petitions for “Withholds” because they “don’t think this person learned their lesson.”

• We use M.N. v. State to remind them: You need evidence. If the prosecutor doesn’t put a witness on the stand to prove you are a danger to society, the judge generally must grant the seal.

Don’t Let a Lazy Ruling Ruin Your Background Check

If your petition to seal was denied without a real explanation, do not give up. We can appeal the decision or force the judge to provide a legal reason (which they often can’t do).

Call me at (407) 423-1117. Let’s clear your record.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.