Judge’s Denial of an Expunge / Seal Gets Overturned

There 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.

In the case of Shanks v. State, the defendant pled to Possession of Cocaine and adjudication was withheld (a withhold of adjudication simply means “not convicted”, and it’s required in order to seal a case). 82 So.3d 1226 (Fla.App. 1st DCA 2012). Shank’s Petition to Seal complied with the law in every way, but the judge denied his Petition to Seal anyway. No good reason was given for the denial, the trial court merely stated that “”Having thoroughly reviewed the case and in consideration to the Amended Petition to Seal Criminal History Record, Response, and being fully advised in the premises, this Court denies the Petition to Expunge/Seal, pursuant to F.S. § 943.059.” id. So, Shanks appealed the denial.

The appeals court disagreed with the trial judge, and overturned the denial (thus, granting Shank’s Petition to Seal). The appeals court reasoned that “once an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records.” [Citing Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997)]. And that’s pretty much how a seal or expunge should go. It should be granted if the applicant complies with the statute.

The real problem in Shank’s case is that the trial judge did not articulate a good reason for his denial. The appeals court reasoned that “[w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks’] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks’] request to seal his records.” Id.

But what if the court’s reasoning involves the severity of the crime alleged? Is that a good reason to deny a petition to expunge or seal? Let’s take a quick look at Cole v. State, 941 So.2d 549 (Fla.App. 1st DCA 2006). Cole was charged with lewd or lascivious molestation, and acquitted at his jury trial. Following the not guilty verdict, Cole petitioned to have his record sealed. At his hearing, the state failed to introduce any evidence, but the judge denied Cole’s petition anyway, stating “[t]he court having heard arguments of the State Attorney and of counsel for defense, and being fully advised in the premises, it is thereupon ordered and adjudged that the aforesaid motion shall be and the same is hereby denied. Done and ordered in open court at Jacksonville, Duval County, Florida, this 25th Day of May 2005.” Id.

Once again, the appeals court overturned the trial judge’s denial of the Petition to Seal, citing Godoy v. State, 845 So.2d 1016, 1017 (Fla. 3d DCA 2003) which states that “the exercise of discretion contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge”.

So, what we have here is two judges that denied petitions to seal–and both judges were overturned by a higher court. While it is possible to legally deny a seal or expunge, doing so requires a good reason. So far, I can’t think of one. But hey, I guess I’m a little bit biased….