Law Office of Marci D. Silver, P.A.

I had a consultation with a potential client the other day regarding sealing and expunging their record. They were horrified to discover that they are not eligible to remove the charge from their record because they have been previously convicted for an offense.

To begin with, expunction is a right that you have in Florida to remove one item from your criminal record provided that you meet certain criteria. Many people, this potential client included, were surprised to find out that they were ineligible to remove the offending charge for one or more of several reasons. It is important when you hire an attorney for your criminal defense that you make sure that attorney is apprised of current expunction and sealing law. For instance, you are not eligible to remove under any circumstances most cases related to sex offenses, domestic battery or schemes to defraud and abuse of the elderly or children. There are other crimes that are precluded but there are too many to list here. This is a public policy to protect others in the public but should you consider a plea bargain a good deal, you should also look at the future cost by entering into a plea before the court on a case of this nature. Even if the court withholds adjudication of guilt in your case, you will be ineligible in these classes of cases to seal your record. In addition if you have ever been adjudicated guilty of any criminal offense including criminal traffic offenses, you will also be precluded from eligibility to remove ANYTHING from your record.

The State of Florida has made it clear that the rules of expunction are only for a select few the state deems non-threatening to the public. It is critical that at the time of a plea negotiation, you are well informed of the future ramifications of your decision.

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I recently had a prospective client call about wanting a divorce and soon came to realize that her case dealt with far more than one simple divorce. Although she and her husband had very little in assets, they shared a daughter together and he was arrested for domestic battery. I soon came to realize how important it is for someone finding themselves newly involved in the court system to know how the operation works.

In Florida, you will find that any time there is a domestic violence case and a child was present or involved, Department of Children and Families (DCF) will become involved. There will be an initial investigation, a recommendation that the victim obtain a restraining order or injunction, and possibly a shelter hearing to ensure the safety of the child from the violent partner. Aside from that, there will be a first appearance for the perpetrator who will likely be told to have no contact with the victim and/or the child through the duration of the criminal case or until otherwise changed by the Court. When a divorce is then filed on top of that, you now have four courts involved in the case (provided that the victim has taken the strong suggestion from Department of Children and Families to obtain an injunction against the perpetrator).

In many circuits there is an effort to consolidate the civil matters into one Unified Family Court in so that the proverbial left hand knows what the right hand is doing and all parties in the dependancy case (with DCF), attorneys and parties involved in the divorce and the judge who issued the restraining order or has the file before them, will all know the issues involved. Likely, the perpetrator of the alleged violence in the home will be ordered through the dependancy case to seek a lengthy stint of counseling that will also require supervised visits with their child for a time until DCF is sure the perpetrator is not a risk to the child. The victim may at times, although possibly being considered the “non-offending” parent, will be ordered into victim classes at a shelter for battered spouses.

However, even at the point that the Unified Family Court makes a decision that both parties may have contact with each other and the child, this may not be accomplished until and unless the criminal court says so. It is critical for a perpetrator and a victim that wishes to reconcile or have contact with the perpetrator once the family court agrees, seek to have the no contact lifted in criminal court as well. All violations of no contact, no matter what court it comes from, can result in new criminal charges or contempt proceedings. However, in criminal court, this can also involve a revocation of bond on the charges. I often hear from Defendants in the criminal process that the “victim dropped those charges.” In Florida, the State Attorney has the right to pursue charges even if they are dropped. Unless you have in your possession the dismissal paperwork or your attorney has informed you the charges are dropped, they may still be pending. It is important that any accused perpetrator coordinate with ALL courts they may be involved with in order to ensure that reconcilation is possible in the court system.

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