Expunge Your Criminal Record - Can Your Florida Expungement Request Be Denied Without A Hearing Or Reason?

Expunge Your Criminal Record - Can Your Florida Expungement Request Be Denied Without A Hearing Or Reason?

Once you receive your Certificate of Eligibility from the Florida Department of Law Enforcement and file the appropriate paperwork with the court, you are legally entitled to have your expungement request heard by a Florida judge. Most Florida counties no longer require in-person hearings for expungement petitions and will approve an expungement request based solely upon the arguments your attorney asserts in the petition. However, if there is a question as to whether the court will grant a request, the judge should set your case for a hearing. If a judge fails to set a formal hearing to consider the request and summarily denies your petition, you should considering appealing.

Consider one "famous" Florida expungement case, in which a defendant pled guilty to petit theft and adjudication was withheld on the charges. When the defendant later filed a petition to seal the record, the judge hearing the case entered an ordered denying the petition without setting a hearing. The Defendant appealed and the lower-court decision was reversed. According to Florida's Fourth District Court of Appeal, the judge should have granted the Defendant's petition to seal since the defendant had complied with all the necessary requirements to seal, and that the record should be sealed unless there was a good reason to deny it. The case was sent back to the lower court to have a hearing to determine if there was good reason to deny the petition.

What does this case mean to you? First, be sure that you comply with all necessary requirements before you file a petition to seal or expunge with the court. Second, you are entitled to a hearing. If your petition is summarily denied without one, you likely have good grounds to appeal.

It is true, though, that "any request for expunction of a criminal history record may be denied at the sole discretion of the court." Nevertheless, Florida courts have consistently held that the words "sole discretion" do not permit judges to arbitrarily deny requests for expunctions.

For example, in another expungement case, a defendant's request to seal his record was denied because "he had already received a break from the criminal justice system... by receiving an adjudication withheld." The case was reversed on appeal. A court must consider all the facts and circumstances of a petition, and provide "sound" reasons why a petition is being denied.

So if you petition to expunge or seal your criminal record, and the judge does not state any reason why your request is denied at a hearing, or doesn't give a reason at all, chances are you have good grounds to appeal.

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