Friday, January 3, 2014

You Can Put Your Past Behind You

You Can Put Your Past Behind You

Many people believe that it is more difficult to expunge or seal a felony arrest, versus a misdemeanor arrest. Well, this belief both is and isnt correct! Let me explain why.

People are correct in their assumption that it can be more challenging to remove a felony from a criminal history record than to remove a misdemeanor charge. This is the case for two reasons:

1. In Florida, the decision whether to grant or deny a petition to seal or expunge is within the discretion of the court, based on a consideration of all the facts and circumstances standard. More serious charges may be more seriously considered by a court, plus, may increase the likelihood the state would object to your petition. If the state objects, a hearing must be held, and you would be faced with trying to prevent the prosecutor from convincing the judge that your history should not be sealed.

2. The Florida statutes contain a list of offenses that cannot be sealed pretty much all felonies. These prohibited offenses include sex crimes, homicide, and kidnapping, to name a few.

Most people are incorrect, however, in assuming that the sealing or expunction of a felony is procedurally more difficult than sealing or expunging a misdemeanor. The Florida legal procedures to seal or expunge a felony and a misdemeanor are exactly the same. There are statutory requirements that a person must meet in order to be eligible to seal or expunge a record generally, but no distinction is drawn between felonies and misdemeanors specifically.

One thing to keep in mind though, if you are reading this article before your criminal case has been resolved, is that sometimes it is better under Florida law from a sealing/expunging perspective only to plead guilty or no contest to a lesser offense if arrested for one of the prohibited offenses, then to have the charges against you dropped or dismissed. Remember, it is the final charge that counts.

I know this is a little counterintuitive, but let me explain. For example, say you were arrested in Florida for sexual battery. If the prosecutor drops or the court dismisses the charges against you, you are ineligible to have that arrest sealed or expunged and you would be stuck with an arrest for sexual battery on your record forever. However, if you plead guilty or no contest to a lesser offense such as misdemeanor battery, and receive a withheld adjudication, you likely can have the record including the arrest sealed, if you meet all the other eligibility requirements. Obviously, this is not the only point you would want to consider in determining your case strategy, but it is one often overlooked thats worth at least thinking about..

No comments:

Post a Comment