Juvenile Seal/Expunge. By: Michelle Hawthorne, Esq. Clinical Adjunct Professor and Staff Attorney, Pro Bono Director

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1 Juvenile Seal/Expunge By: Michelle Hawthorne, Esq. Clinical Adjunct Professor and Staff Attorney, Pro Bono Director

2 Overview Juvenile Diversion Expunction Certificate of Eligibility Expunge Seal Automatic Juvenile Expunction Early Juvenile Expunction

3 Juvenile Diversion Expunction

4 Juvenile Diversion Expunction Florida Juvenile Expunction Statute FDLE Juvenile Expunction Website Charged as Minor Non-violent misdemeanor *Simple Asslt/Batt okay! Diversion Program completion Disposition notice Fingerprints Application FDLE *$75 fee waived *Does not affect future Seal or Expunge

5 Juvenile Diversion Expunction Florida Juvenile Expunction Statute FDLE Juvenile Expunction Website Key Takeaways: Application signed by applicant or parent/legal guardian if still under 18. State Attorney must certify Section B. Fingerprints done by law enforcement agency(duval- $12) Certified Disposition Notice for (Duval-$4) No longer have to submit application within 12 months of diversion completion Administratively expunged so do not need to file anything with court!

6 Juvenile Diversion Expunction Florida Juvenile Expunction Statute FDLE Juvenile Expunction Website Typical Reasons for Denial: New charge Unqualified offense, including Domestic Violence, see Fla Statute Only criminal justice agencies may be able to see any trace of the record once it is expunged. Shall be made available only to criminal justice agencies for the purpose of determining eligibility for prearrest, postarrest, or teen court diversion programs; when the record is sought as part of a criminal investigation; or when the subject of the record is a candidate for employment with a criminal justice agency. Practical lawyering: Many Juvenile offenders are charged with felonies -> amended information?

7 Certificate of Eligibility Fla. Stat (Expunge) Fla. Stat (Seal)

8 Certificate of Eligibility AKA: General Seal/Expunge Fla. Stat (Expunge) Dismissed prior to trial Sealed for 10 years Fla. Stat (Seal) Withholds of adjudication Jury acquittals ONE AND DONE!

9 Overview Gives Courts Jurisdiction Court SHALL NOT order a criminal justice agency to expunge a criminal history until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility. Any request for expunction may be denied at the sole discretion of the court.

10 Overview Continued Court may only order expunction of a criminal history record pertaining to ONE arrest or ONE incident. Court, at its discretion may order expunction of additional arrests if they relate to the original arrest

11 Application for Eligibility Application Applicant Fills out Section A Submit to State Attorney s Office or Statewide Prosecution to file out section B ( EXPUNCTION ONLY) FDLE will fill out Section C

12 Application Requirements Fingerprint Card done by Law Enforcement Application signed by a notary Certified disposition $75.00 check or money order to FDLE Attorney Letterhead

13 Cert of Eligibility-Reasons for Denial Been adjudicated guilty of any criminal offense or adjudicated delinquent for any felony or any of the misdemeanor under (3)(b) Driving Violations that are criminal Were adjudicated guilty or delinquent for committing act stemming from arrest or activity to which application pertains Had a prior sealing or expunction Certain Exceptions: Previously Sealed, now applying for expunction 10 years Certain crimes that are not permissible-review Disqualifying offenses (next slide) Another pending seal or expunge petition Disposition has not been completed

14 (3)(b) Misdemeanors Assault, as defined in s Battery, as defined in s Carrying a concealed weapon, as defined in s (1). Unlawful use of destructive devices or bombs, as defined in s (1). Neglect of a child, as defined in s (1)(e). Assault or battery on a law enforcement officer, a firefighter, or other specified officers, as defined in s (2)(a) and (b). Open carrying of a weapon, as defined in s Exposure of sexual organs, as defined in s Unlawful possession of a firearm, as defined in s (5). Petit theft, as defined in s (3). Cruelty to animals, as defined in s (1). Arson, as defined in s (1). Unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property, as provided in s

15 Other Disqualifying Offenses Applying to Both Seal and Expungment Sexual misconduct with developmentally disabled person and related offenses, S , F.S. Sexual misconduct with mentally ill person and related offenses, S , F.S. Luring or enticing a child, S , F.S. Sexual Battery and related offense, Chapter 794, F.S Procuring person under 18 for prostitution, S , F.S. Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age. S , F.S.

16 Other Disqualifying Offenses Applying to Both Voyeurism, S , F.S. Florida Communication Fraud Act, S , F.S. (Scheme to Defraud or Organized Fraud, as defined in s , F.S.) Lewd or lascivious offense upon or in presence of elderly person or disabled adult, S , F.S. Sexual performance by a child, S , F.S. Offenses by Public Officers and Employees, Chapter 839, F.S. Showing, etc., obscene literature to minor, S , F.S.

17 Other Disqualifying Offenses Computer pornography, S , F.S. Selling or buying of minors, S , F.S. Trafficking in controlled substances, S , F.S. Sexual misconduct with mentally deficient or mentally ill defendant and related offenses, S A violation of any offense qualify for registration as a sexual predator under s or for registration as a sexual offender under s

18 Disqualifying Offenses Listed in Arson; 2. Aggravated assault; 3. Aggravated battery; 4. Illegal use of explosives; 5. Child abuse or aggravated child abuse; 6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult; 7. Aircraft piracy;

19 Cont. 8. Kidnapping; 9. Homicide; 10. Manslaughter; 11. Sexual battery; 12. Robbery; 13. Carjacking; 14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years; 15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority;

20 Cont Burglary of a dwelling; 17. Stalking and aggravated stalking; 18. Act of domestic violence as defined in s ; 19. Home invasion robbery; 20. Act of terrorism as defined in s ; 21. Manufacturing any substances in violation of chapter 893; and 22. Attempting or conspiring to commit any such crime.

21 Seal Requirements Fingerprint Card by Law Enforcement Agency Application signed by a notary Certified disposition $75.00 check or money order to FDLE Attorney Letterhead No need to fill out section B of Certificate of Eligibility (Reminder ONLY applicable for Expunction)

22 Entities Entitled to Information Sealed/Expunged Agency will receive the subject s demographic information and a caveat statement saying the information has been expunged Candidate for employment in criminal justice Defendant in a criminal prosecution Concurrent or subsequently petitions for relief Candidate for admission to the Florida Bar

23 Entities Entitled to Information Sealed/Expunged Seeking employment, license or contract with: Department of Children & Family Services Division of Vocational Rehabilitation within Department of Education Agency for Health Care Administration Agency for Persons with Disabilities Department of Health Department of Elderly Affairs Department of Juvenile Justice Any sensitive position with direct contact involving children, disabled, elderly

24 Entities Entitled to Information Sealed/Expunged Seeking employment by the Department of Education Any school board University laboratory school Any charter school Any private or parochial school Any local government entity that licenses child care facilities Attempting to purchase a firearm is subject to background check

25 Cert of Eligibility-2 step Once Certificate of eligibility comes back (6-7 months) File petition, affidavit and proposed order with court of jurisdiction

26 Case Law Babun v. State, 576 So.2d 377 (Fla. 3d DCA 1991): The State concedes that the trial court erroneously applied section , Florida Statutes (1989), in denying a motion to expunge and seal court records showing that the movant was arrested and charged with a criminal offense. The statute, which prohibits the sealing of records in a completed case, does not apply where the charges are nolle prosequi.

27 FLORIDA STATUTE : RETENTION OF CRIMINAL HISTORY RECORDS OF MINORS

28 Juvenile expunction Juvenile Expunction has two categories A minor who is classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison A minor who is NOT classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison Juvenile Expunction has two subcategories Automatic Juvenile Expunction Early Juvenile Expunction

29 Automatic Juvenile Expungement Per Section , Florida Statutes, the criminal history record of a minor maintained by FDLE will automatically be expunged (i.e., by operation of law) at the age of 21, or (if the minor was committed to a juvenile correctional facility or juvenile prison) age 26, provided certain conditions are satisfied (essentially, not having been charged with or convicted of a forcible felony as an adult or when treated as an adult). Charges designated as forcible felonies can be found listed in Section , Florida Statutes.

30 Automatic JUVENILE EXPUNCTION not classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison Retention of Records (1)(b)1. If the minor is not classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison under chapter 985, the program shall retain the minor s criminal history record for 2 (was 5) years after the date the minor reaches 19 years of age, at which time the record shall be expunged unless it meets the criteria of paragraph (2)(a) or (2)(b) (1)(b)3. A minor who applies, but who is not approved for early expunction in accordance with subparagraph 2., shall have his or her criminal history record expunged at age 21 if eligible under subparagraph 1.

31 Automatic JUVENILE EXPUNCTION classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison Retention of Records (1)(a) The Criminal Justice Information Program shall retain the criminal history record of a minor who is classified as a serious or habitual juvenile offender or committed to a juvenile correctional facility or juvenile prison under chapter 985 for 5 years after the date the offender reaches 21 years of age, at which time the record shall be expunged

32 AUTOMATIC JUVENILE EXPUNCTION BOTH CATEGORIES, CLASSIFIED AND NOT CLASSIFED OFFENDERS WILL NOT BE EXPUNGED IF IT MEETS THE FOLLOWING CRITERIA Retention of Records (2) (a) If a person 18 years of age or older is charged with or convicted of a forcible felony and the person s criminal history record as a minor has not yet been destroyed, the person s record as a minor must be merged with the person s adult criminal history record and must be retained as a part of the person s adult record. (b) If, at any time, a minor is adjudicated as an adult for a forcible felony, the minor s criminal history record prior to the time of the minor s adjudication as an adult must be merged with his or her record as an adjudicated adult.

33 AUTOMATIC JUVENILE Retention of Records EXPUNCTION (3) Notwithstanding any other provision of this section, the Criminal Justice Information Program shall retain the criminal history record of a minor adjudicated delinquent for a violation committed on or after July 1, 2007, as provided in s (1)(a)(sex offender registry). Such records may not be destroyed and must be merged with the person's adult criminal history record and retained as a part of the person's adult record.

34 WHY IS THIS IMPORTANT? IT IS IMPORTANT THAT OUR YOUTH HAVE EVERY CHANCE TO SUCCEED IT IS IMPORTANT THAT THEY DO NOT GIVE UP THEIR ONE CHANCE AT A SEAL OR EXPUNGEMENT It will go away at 21 if you they can stay clean Make the right choice for your client Ask yourself the following question: Do they have something important like a job or college scholarship to use one and done or can they wait until it falls off at 21

35 Early Juvenile Expungement Under Section (1)(b)2.,Florida Statutes, persons between the ages of 18 and 21 may, under certain conditions, apply to have their juvenile criminal history record expunged by FDLE. A person may apply to the appropriate prosecuting attorney to approve the expungement of his or her FDLE juvenile criminal history record if the subject has not been charged with or found to have committed any criminal offense (including the one that you are seeking to expunge) within the preceding 5 years.

36 Early JUVENILE EXPUNCTION (1)(B)(2) A minor described in subparagraph 1. may apply to the department to have his or her criminal history record expunged before the minor reaches 21 years of age. To be eligible for expunction under this subparagraph, the minor must be 18 years of age or older and less than 21 years of age and have not been charged by the state attorney with or found to have committed any criminal offense within the 5-year period before the application date. The only offenses eligible to be expunged under this subparagraph are those that the minor committed before the minor reached 18 years of age. A criminal history record expunged under this subparagraph requires the approval of the state attorney for each circuit in which an offense specified in the criminal history record occurred. A minor seeking to expunge a criminal history record under this subparagraph shall apply to the department for expunction in the manner prescribed by rule. An application for expunction under this subparagraph shall include: A criminal history record expunged under this subparagraph requires the approval of the state attorney for each circuit in which an offense specified in the criminal history record occurred. A minor seeking to expunge a criminal history record under this subparagraph shall apply to the department for expunction in the manner prescribed by rule The following requirements must be met, pursuant to Section (1)(b)2, Florida Statutes, in order to obtain an early juvenile expungement of an FDLE criminal history record. Application Notarized SAO approval $75 processing fee to FDLE Fingerprints by LEO Certified Disposition

37 Early Juvenile Requirements-Application Application Notarized SAO approval $75 to FDLE Fingerprints by LEO Certified Disposition

38 If Denied Appeal If believe applicant s criminal history contains an error, procedure for reviewing and correcting record is in Rule 11C-8.001, Florida Administrative Code If you believe FDLE misinterpreted the law, must file a motion or petition in the tral court within 30 days of issuance of the denial. See Rowell v. State, 700 So.2d 1242, (Fla 2 DCA 1997) Copy of motion/petition should be served on Office of General Counsel for FDLE

39 Less Common Expunctions Lawful Self Defense (Section (5)) Requires that no information, indictment or other charging document was filed, or if it was filed, was dismissed by the prosecuting attorney or by the court, based on a finding that the applicant acted in lawful self-defense pursuant to the provisions related to justifiable use of force in Chapter 776, Florida Statutes. Application, Fingerprints, Disposition, $75 fee Human Trafficking (Section ) Person who is a victim of human trafficking (as defined in Section (1)(c) and Section , Florida Statutes) may petition for the expungement of a criminal history record resulting from the arrest or filing of charges for an offense committed or reported to have been committed as a part of the human trafficking scheme of which he or she was a victim. If the petition is granted by the court, a court order under this statute will be forwarded for FDLE compliance. Unlike some other forms of sealing or expungement, human trafficking expungement does not require an application for certification of eligibility; it is entirely a judicial proceeding. Contact the Clerk of Court, the State Attorney or Statewide Prosecutor in the county of jurisdiction for additional information. Administrative (Section ) Any non-judicial record of an arrest of a minor or an adult made contrary to law or by mistake. A law enforcement agency shall apply to the department in the manner prescribed by rule for the administrative expunction of any nonjudicial record of any arrest of a minor or an adult who is subsequently determined by the agency, at its discretion, or by the final order of a court of competent jurisdiction, to have been arrested contrary to law or by mistake.

40 Collateral Consequences Housing Section 8, HUD Housing Foreclosure School Federal Aid School Districting Immigration

41 Thank you! Michelle Hawthorne, Esq