Florida Expungement – The Who, What, When, Where, Why & How – Guest Blog Post

May 31, 2011

Florida Expungement: The “Who”

 

The main question I am most often asked is: do I have a Florida criminal record? And the answer is…if you have ever been arrested in Florida you have a Florida criminal record. Even if you were never prosecuted or the court dismissed the case against you, what matters in Florida is the actual arrest. And that arrest is public information, unless you elect to have it sealed or expunged.

Many people also want to know if there is a difference between sealing or expunging a felony charge versus a misdemeanor charge. The answer in Florida is a qualified “no.” The Florida statutes provide a list of eligibility requirements a person must meet in order to have a record expunged or sealed, but the statutes do not differentiate between felonies and misdemeanors. There are certain “prohibited offenses” that are not eligible for Florida expungement or record sealing, but if your charge is not on this list, then the same process applies to both misdemeanor and felony cases. The list, however, is comprised of mainly felonies.

Florida Expungement: The “What”

When a record is expunged in Florida, it means that the record is physically destroyed. However, one copy of every expunged record is kept with the Florida Department of Law Enforcement (FDLE). While the FDLE can reveal the existence of an expunged record under certain limited circumstances, it cannot reveal what is in that record.

Sealing a record means that the record is kept, but put under highly restricted access. Sealed records are generally not available to the public.

Florida Expungement: The “When”

In terms of Florida record expungement procedure, it doesn’t really matter when you decide to begin the record sealing or expungement process. In practical terms, however, sooner is better than later. Waiting potentially has serious consequences that could affect your job, education, housing, financial prospects and future.

Florida Expungement: The “Where”

Records must be sealed or expunged in the county of your arrest. Usually the entire process can be completed via email and mail, without the need for in-person office visits or court appearances. Some counties, however, still routinely hold final Florida expungement hearings, in which case you would have to appear in court or have a Florida expungement attorneyappear on your behalf.

Florida Expungement: The “Why”

There are many benefits to having a clear past. Once a record is sealed or expunged, you can lawfully deny its existence and answer truthfully on employment, housing, school, scholarship, and loan applications that you don’t have a criminal history or have never been arrested (under most circumstances). This can create a lot more opportunities for you in the future. Also, you will gain peace of mind from knowing that one past mistake won’t continue to haunt you indefinitely.

Florida Expungement: The “How”

The Florida expungement and record sealing process is governed by statute so you first must read the various statutes to determine if you meet the eligibility requirements, (and keep in mind you must meet different requirements in order to expunge a record versus seal a record), learn the correct procedures, and determine if you fall under any exceptions. Then you will have to apply for and obtain a Certificate of Eligibility from the FDLE. If denied, you may want to appeal, depending on your circumstances.

After you obtain the Certificate of Eligibility, you will have to petition the court to seal or expunge your record, as the case may be. If your petition is contested by the State of Florida, or you live in a county that routinely holds hearings, you will have to appear in court. Once the court approves your petition, you can obtain a copy of your seal or expunge order and ensure that the criminal justice agencies also receive a copy the order. If your petition is denied by the courts, you may want to file an appeal, depending on your particular circumstances. Don’t forget to follow-up approximately sixty days after your order is entered to make sure your record has been removed from the databases. A simple way to do this is by obtaining a background check online.

Click the link to find out, for free, if you are eligible for Florida expungement.

Karen Kilpatrick is licensed to practice law in Florida, California and North Carolina. She earned her undergraduate degree from Georgetown University’s School of Foreign Service and Juris Doctor from New York University School of Law, one of the top five law schools in the nation.

Purav Bhatt is a criminal defense attorney serving Cook, Lake, DuPage and Will Counties. Contact Mr. Bhatt at 773-791-9682 if you would like to discuss expungement and sealing options in Illinois.

Shoplifting/Retail Theft – First Time Offender’s Guide – Criminal Defense Attorney Skokie

April 28, 2011
shoplifting

shoplifting

Being arrested or cited for retail theft/shoplifting under Illinois Criminal Statute 720 ILCS 5/16A-3 can lead to serious criminal, civil and economic consequences. A person arrested for the first time has the opportunity to protect themselves during their criminal case, as well as, in their future if they know how to approach their case.

By law, a first time retail theft arrest with a value under $300 is classified as a Class A misdemeanor and carries a punishment of up to a year in jail and a $2500 fine. If the value of the items taken is above $300, Illinois classifies the retail theft as a Class 4 felony punishable by 1-3 years in prison along with a fine of up to $25,000. Being prepared and having strong and informed representation can protect you from serious legal consequences.

While each case is determined individually based on the facts and nature of the events, certain options are available to those arrested and charged with retail theft/shoplifting.

1. Supervision

Supervision is a sentence of “good behavior” in which, if the defendant does not pick up new arrests or violate any other terms of the supervision, will result in a non-conviction on the defendant’s record. While receiving a sentence of supervision does avoid imprisonment and a conviction, the consequences of a sentence of supervision last far longer than the supervision itself. An individual who receives supervision must wait 5 years after the termination of the supervision to petition the court for an expungement or sealing of their record. Employers routinely perform background checks and an arrest of retail theft/shoplifting oftentimes eliminates applicants from employment.  This can be avoided.

2. Deferred Prosecution

Deferred prosecution is an opportunity for first time offenders to avoid a conviction, jail time or supervision. With proper negotiations and preparation by the defense, defendants can receive a deferred prosecution and be required to complete a theft-deterrent program. This is a class that is completed by the defendant, and upon proof of completion, will result in the prosecution dismissing the retail theft/shoplifting charges against the defendant. If the case is dismissed, the record of arrest and court proceedings can be expunged immediately as opposed to requiring the 5 year waiting period under a sentence of supervision.

3. Community Service

An additional option for defendants is community service. If the theft-deterrent program is not applicable or not available, community service is an alternative option. Similar to the theft-deterrent program, when the community service is completed, it will result in the prosecution dismissing the retail theft/shoplifting charges against the defendant. Again, if the case is dismissed, the record of arrest and court proceedings can be expunged immediately as opposed to requiring the 5 year waiting period under a sentence of supervision.

Even if you are arrested for retail theft/shoplifting, you can protect yourself in many ways with the proper information and you do not have to suffer the consequences of a retail theft/shoplifting arrest on your record for years afterwards.

Purav Bhatt is a criminal defense attorney practicing in Skokie, Rolling Meadows, Chicago, Cook, DuPage and Lake counties. Please contact Mr. Bhatt if you have been arrested for retail theft/shoplifting and would like to discuss your options at 773-791-9682.

What is the difference between an expungement and sealing of my record?

March 22, 2011
expungement

expungement

Criminal arrests can have many detrimental consequences in one’s life. A criminal background can prevent you from finding employment, prevent you from being able to certify for certain licences or simply be an embarrassing mark on your record.

Many of my clients ask me about what they can do to clear their records after an arrest. Oftentimes, whether an individual qualifies for an expungement or sealing of his record will depend on what type of background the person has and what the outcome of the current case was. After these questions are answered, only then can you determine whether you qualify for an expungement, sealing or neither.

So what is the difference between an expungement and a sealing of your record?

Expungements

An expungement causes the physical destruction of one’s records or to return the records to the petitioner, and to obliterate (remove) the petitioner’s name from any official index or public record. This allows a person arrested for a misdemeanor offense such as: retail theft, marijuana possession, battery, assault, etc. and some felony arrests to be erased off of one’s criminal background permanently. Illinois understands that an arrest record can be accessed by potential employers, educational institutions and law enforcement. As a result, Illinois has allowed an individual to clear his or her record if that person’s background qualifies under the expungement guidelines. So what are those guidelines?

First, you must determine whether your case was dismissed or you were found not guilty at a trial. If so, your charge will qualify for an expungement.

If you were placed on supervision, it will depend on what charge you were placed on supervision for. If the charge is retail theft, domestic battery or operating an uninsured motor vehicle, you must wait 5 years before you qualify to have your record expunged.  If you were placed on supervision for another offense aside from the offenses mentioned above, you will be required to wait 2 years before qualifying to expunge your record.

Once a criminal background is expunged, the police file is either destroyed or returned to the defendant who sought the expungement.

Sealing

The sealing of ones record allows the criminal record to be closed to public access. Sealing allows the individual to physically and electronically maintain records, but to make the records unavailable to the public without a court order and to obliterate (remove) the petitioner’s name from any official index or public record. However, law enforcement agencies and the courts will still have access to the records, as will other entities and employers allowed by law.

Sealing one’s criminal record is attractive because oftentimes, my clients simply wish to protect their ability to gain employment and the sealing of a criminal record allows you to do that.

First Steps?

The first step in seeking an expungement or sealing of a criminal record is for the individual to get a copy of his or her rap sheet from Criminal History Access and Review Records Services Division –4770 S Kedzie, Chicago, Illinois.

Once the rap sheet is in possession, a certified copy of disposition needs to be compiled in order to complete the petition to expunge or seal.

Purav Bhatt is a criminal defense attorney with offices in Lincolnwood, Illinois. His office routinely handles expungements and sealing petitions for his clients.

If you have any questions about expungements or sealings or would like to discuss completing the petition contact us or call us at 773-791-9682.