Articles Posted in Seal and Expunge

To understand how long it takes to expunge a case, let’s indulge in a fantasy.  Imagine an American company makes Teddy Bears in an Orlando factory.  The factoryexpunge no objection employs teenagers to sew the bears together and ship them out (unrealistic, because teenagers don’t work in factories, and we don’t have factories in Orlando, do we?  No, cheesecakes don’t count).

At this imaginary factory, three employees do all the work.  Cindy attaches the arms and legs.  George attaches the eyes and ears.  And, Bill puts the tag on, boxes up the bear, and ships bears to happy children everywhere.

How long does it take to make a teddy bear?  That depends.

Let’s say you walk into this Teddy Bear factory and notice that Bill is sitting around twiddling his thumbs.  He has no bears to bag and tag (as the coroners office would say).  Why are there no bears to ship?  Because George has 1,000 bears stacked up at his desk waiting for eyes and ears.  It will take a week for George to catch up.  This, my friends, is what we call a bottleneck.  Now that we’ve refreshed your recollection of 9th grade economics, let’s dig deeper. Continue Reading

People are putting way too much personal information online these days.  Now, this isn’t a big deal if you’re the one putting out information about yourself–at least you can control what the world sees.  The problem is, our clerk of courts are now publishing arrest reports.  Back in the day, viewing a police report would take some effort.  The clerk of court must be contacted, a written request made, or someone would have to show up to the clerk’s counter to physically view the court file.  Not anymore.  Anyone on Earth can now see your worst moment, online, for free.

We have 67 counties in Florida, each with its own clerk of court.  Advances in document management software have enabled numerous clerk’s to publish police reports over the internet.  That means all the false accusations found in that police report will be read by a potential employer, a potential partner, or a nosy neighbor.

And that, my friends, is why you should seal or expunge your criminal record.

Most decisions by judges do not get overruled, even when they’re wrong.  For some, this may only re-enforce their bad IMG_0461behavior because the fact is, challenges to bad rulings are often not made because most clients do not have the time or money to appeal (for those unaware, it is far more expensive to appeal a case than to handle it right from the beginning).  One of the most commonly overturned decisions is the denial of a sealing or expunging of a criminal record.

Sealing and expunging is an abnormal process for most judges, because the law presumes that a seal and expunge should be granted.  In effect, the presumption that sealings should be granted strips the judge of any meaningful participation.  If the petition is drafted properly—the presumption is that the expunge must be granted (yes, this is more difficult than it looks, and no, you can’t find this online because each is slightly different).  Ok, so why all the denials on petitions to seal and expunge?  Well, there’s one little provision in Section 943.0585 that judges like to hang their hat on.  It reads that “any request for expunction of a criminal history record may be denied at the sole discretion of the court.”  So, what does “sole discretion of the court” mean?  Sounds like trouble, right?  Wrong.  To show how limited a judge’s decision is on a seal and expunge, we’re going to take a look at the Orlando appeal found in M.N. v. State of Florida, 18 Fla. L. Weekly Supp. 921a (2010-AP-12, April 25, 2011).  In this case, the prosecutor objected to the petition to seal M.N.’s misdemeanor disorderly conduct.  Seems kind of odd, and I don’t know the facts here, but I can’t even dream up facts in a disorderly conduct that would warrant a denial of a petition to seal (sure, I can dream up felony charges that should not be sealed, but a misdemeanor?).  Continue Reading

Expunging a record can be a time consuming process, because you have to wait on the government at several different stages.  For example, at the very beginning of the expunge process (as opposed to the sealing process), you must get the State Attorney’s Office to sign off onhourglass the application.  There’s no real deadline for this signing event, and usually this task is complete within a few weeks.  But, again, we’re dealing with the government, and they’re in no real hurry.  The same can go for FDLE.  Once the State Attorney’s Office has signed off on an expunge application, that application is forwarded to the Florida Department of Law Enforcement for a background check.  This background check can take a matter of weeks (unlikely, but I’ve seen it happen), or a matter of months (much more common).

But one particular expunge process takes government control to a whole new level, it’s called an “Administrative Expunction”.  This type of expunge is brought to us by Florida Statute 943.0581, and, believe it or not, neither you nor your attorney may apply for an administrative expunge.  Only the government may apply for an administrative expunge, and only in cases where an arrest was “made contrary to law or by mistake”.

Now, by my count (unscientific, but accurate nonetheless), plenty of arrests have been made contrary to law.  To me, this phrase could mean any sort of arrest that a court deems illegal.  Recently, I had a client’s drug case thrown out because the search of his home was illegal.  So, if the search of the home was unconstitutional, wouldn’t his arrest be “contrary to law”–and thus be eligible for an administrative expunge?  I don’t think the definition of “contrary to law” extends to arrests deemed unconstitutional by a criminal court judge.  I think is should, but as a practical matter, prosecutors are not too cooperative when it comes to helping out a defendant via Section 943.0581 (most don’t even know what an administrative expunction is).   Continue Reading

fountain_at_sunset.jpgThere are over 3,000 arrests in Orange County every month. Add to that number the arrests in Seminole County and Osceola County, and it’s easy to see why Central Florida’s criminal court system is so congested. So, what happens after all of these cases are resolved?

For some citizens, the closing of a criminal case is just the beginning of the battle to get their life back. Even with a not guilty verdict, there’s still a damaged reputation that needs repair. This war is fought on two fronts–first, sealing or expunging the criminal records. Once that is completed, the second fight involves repairing any traces of the criminal incident from various websites and search engines. Let’s take a closer look at what must be done first, sealing and expunging.

For those unfortunate souls who are arrested, it should come as no surprise that there are several government agencies disseminating their arrest info all day, every day. For that favor, you can thank technology (specifically, the internet). When I started defending criminal cases back in 1993, sealing or expunging a case was more effective than it is today because most of the world could not access criminal records via the internet. But now, the clerks of court permit public access to criminal records. Arrest information slowly seeps out into search engines like Google, allowing the rest of the world to view embarrassing incident details. That’s where a seal or expunge can really help out. A sealing forces the clerk of court to remove all information from their public database (it forces other government agencies to do so as well). But, you’ve got to get a judge to grant the seal or expunge first. That is done by filing a “Petition to Seal” or a “Petition to Expunge” with the clerk, prosecutor, arresting agency, and judge (four copies must always be sent out). These petitions can be denied, but only under certain circumstances. So, let’s take a look at how this sort of thing plays out in real life.
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employees only.jpgWherever a group of people gather, judgment follows. The people within the group are sizing each other up. And, they’re passing judgment on those outside the group. But let’s face it; no judgment is harsher than against those who have a felony conviction (especially a sex offense). Being a convicted felon effects not just where you can work, but also where you are permitted to live. Without work, it’s hard to live (duh). We the people must balance our freedom of information about someone’s criminal history, with our desire to permit all of our citizens to pursue life, liberty, and happiness. How do we do it?

One simple way to get started is sealing or expunging a criminal record. Sealing and expunging is not THE answer, but it is a great start. It’s mandatory. For those of you with a criminal history, there are several government entities which have the garden hose of information fully blasting your negative criminal history information out into the digital world. Those faucets pouring out your information are located in three places, typically. First and foremost, the clerk of court. Most clerks of court have internet websites which make your criminal history available to anyone, anywhere, 24/7. If we seal or expunge your case, this faucet will get turned off. No one will be able to access that criminal history from the clerk anymore. But there are other government sources remaining. Tallahassee keeps diligent arrest records, but those faucets can be shut off by sealing or expunging because once a judge grants a Petition to Expunge, the local law enforcement agency that made the arrest must seal up access to those records.

So, I always recommend a citizen seal or expunge a criminal history. This is a no brainer. But the problem is, background checks can still expose an arrest record, even though it’s been sealed or expunged. And just as important as sealing a case is having internet sources shut off as well, and companies that are in the web reputation business can help with such matters. But sealing and expunging is a privilege for those not convicted of a crime. What about convicted felons? For convicted felons, they have paid their debt to society, yet the payments continue long past the prison time, probation time, classes, counseling, community service, fines, fees, court costs, and restitution. So, what can we do to help felons gain employment?
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flags.jpgDo you know how hard it is to get into a communist country like North Korea? How about the former Soviet Union, back during the Cold War? How about getting into Cuba (as an American, of course)? I traveled to Germany back in the late eighties when there was still an “East Germany”. I couldn’t get in. You should have seen the soldiers with big AK’s patrolling “he wall”, it was scary.

This is the story of the United States government being a big bully. This is the story of a government that could use a few extra tourist dollars, and yet it refuses such tourist dollars for no good reason. We begin with fantasy football. Four million fantasy football fans competed this football season for Bud Light’s top prize, a trip to the Super Bowl in New Orleans.

And guess what, a northern brother from Canada won the trip. Can you imagine the excitement? I don’t think you can. Canadian Myles Wilkenson won the trip. As expected, he packed his bags and headed to New Orleans. Unfortunately, the United States government didn’t let him in the country. Why? Was he on our “no fly list” like Senator Ted Kennedy? What could possibly keep a Canadian citizen from entering our country to spend money?

Weed. Now, I’ve had some clients caught trafficking a tractor trailer full of weed–and if you’re such a person–I can understand why some countries would not want you coming to visit, given your proclivity to deal in massive amounts of controlled substances. But Mr. Wilkenson was not that guy. His possession of marijuana charge dated back to 1981. That’s right, 1981, more than 30 years ago. And, he wasn’t caught with a truckload of weed. He had two grams, that’s it. He paid a $50 fine, that’s it. But our government denied him entry into the country. Wow. Sorry New Orleans, we know you could use a few tourist dollars, but anyone who’s paid a $50 fine for a weed charge is not of the good moral character that should be permitted to party on Bourbon Street.
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