No. 81545 | Fla. | Jun 16, 1994
Lead Opinion
In our prior opinion in this case, we adopted amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.986, 3.987, and 3.989. Amendments to Florida Rules of Criminal Procedure S.1S3, 3.692, 3.986, and 3.989, 630 So. 2d 552" court="Fla." date_filed="1993-12-23" href="https://app.midpage.ai/document/amendments-to-florida-rules-of-criminal-procedure-3133-3692-3986-3987--3989-7677317?utm_source=webapp" opinion_id="7677317">630 So.2d 552 (Fla.1993). We rejected the Criminal Rules Committee’s proposed amendments to rules 3.692, Petition to Seal and Expunge, and 3.989, Seal and Expunge Forms, and adopted our own amendments to those rules. These amendments were designed to ensure that the Florida Department of Law Enforcement (FDLE) received sufficient information to enable it to notify the appropriate state attorney of the existence of circumstances that would prohibit expunging or sealing of records. To this end, they provide that 1) a copy of the petition to expunge or seal be served on the prosecuting attorney, the arresting police agency, and FDLE and 2) the hearing on the petition be delayed thirty days from service of the copies. We postponed the effective date of these amendments until the Rules Committee could review them and file comments for our further consideration. 630 So.2d at 553. We have jurisdiction. Art. V, § 2(a), Fla. Const.
The Rules Committee offers two suggested changes to rules 3.692 and 3.989 as amended in our prior opinion. The first is a rewording of the sentence in rule 3.692(a) providing for a 30-day delay between the filing of a petition and the hearing. The sentence as reworded takes into consideration the fact that there may be instances in which no hearing is necessary. The second is a stylistic change to rule 3.989 that was inadvertently omitted from the Rules Committee’s original petition.
We also have considered comments submitted by other interested parties but adopt only those changes suggested by the Rules Committee. The attached amendments reflect those changes.
Accordingly, rules 3.692 and 3.989 are amended as reflected in the appendix to this opinion. The new language is indicated by underscoring; deletions are indicated by strike-through type. The amendments shall become effective immediately upon the filing of this opinion.
It is so ordered.
Dissenting Opinion
dissenting.
I dissent for the reasons expressed in my dissenting opinion in Amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.986, and 3.989,. 630 So. 2d 652" court="Fla. Dist. Ct. App." date_filed="1994-01-12" href="https://app.midpage.ai/document/hartford-insurance-co-of-the-southeast-v-state-farm-fire--casualty-co-7677353?utm_source=webapp" opinion_id="7677353">630 So.2d 652 (Fla.1993).
APPENDIX
RULE 3.692. PETITION TO SEAL OR EXPUNGE
(a) Requirements of Petition. All relief sought by reason of Ssections 943.0585-943.-059, Florida Statutes-41984), shall be by petition in writing, filed with the clerk. SuehThe petition shall state the grounds upon which it is based and the official records to which it is directed and shall be supported by an affidavit of the party seeking relief, which affidavit shall state with particularity the statutory grounds and the facts in support of suehthe motion. A copy of the completed petition and affidavit shall be served upon the prosecuting attorney,and upon the arresting authority, and the Florida Department of Law Enforcement. Unless the state indicates that it has no objection to the requested relief, no petition may be granted until at least 30 days after service of the copies of the petition and affidavit. Notice and hearing shall be as provided in Rrule 3.590(c).
(b) State’s Response; Evidence. The Sstate may traverse or demur to suehthe petition and affidavit. The court may receive evidence on any issue of fact necessary to the decision of the petition.
(c) Written Order. If the petition is granted the court shall enter its order in writing so stating and further setting forth the records and agencies or departments to which it is directed.
(d) Copies of Order. UpoOn the receipt of suehthe order the clerk shall furnish a certified copy thereof to each agency or department named therein excepting the court.
(e) Clerk’s Duties. In regard to the official records of the court including the court file of the cause, the clerk shall:
(1)Rremove from the official records of the court, excepting the court file, all entries and records subject to suehthe order; provided that if it shall not be practical to remove suehthe entries and records, then to make certified copies thereof and thereafter expunge by appropriate namesmeans suehthe original entries and records,;
(2) Sseal suehthe entries and records, or certified copies thereof, together with the court file and retain the same in a non-public index subject to further order of the court, (Ssee; Johnson v. State, 336 So. 2d 93" court="Fla." date_filed="1976-07-21" href="https://app.midpage.ai/document/johnson-v-state-1804065?utm_source=webapp" opinion_id="1804065">336 So.2d 93 (Fla.1976),);
(3) lin multi-defendant cases, the clerk shall make a certified copy of the contents of the court file whiehthat shall be sealed pursuant to subsectionsubdivision (2). Thereafter all references to the petitioner shall be expunged from the original court file.
(f) Costs. All costs of certified copies involved herein shall be borne by the movant, unless he-bethe movant is indigent.
Committee Notes
1984 Amendment. Substantially the same as the former rule. The statutory reference in (1) was changed to cite the current statute and terminology was changed accordingly. Subseetioadivision (f) of the former rule was deleted sineebecause it dealt with substantive matters covered by Ssection 943.058, of the Florida Statutes (1981).
[[Image here]]
I, _(name of defendant/petitioner),, am the Ddefendant/petitioner in the above-styled cause and I do hereby swear andor affirm that: -I-have' -never-been adftidie-ated-guilty-of-a- criminal offense or a comparable ordinance violation and I have frankly discussed this with my counsel in depth and-he-has-explained-to-me-the meaning of all of the terms-in-this-Affidavit.-
1. I fully understand the meaning of all of the terms of this affidavit.
2, I have never been adjudicated guilty of a criminal offense or a comparable ordinance violation!
L3. That I was arrested on the _ day of __, 19_, by (arresting agency), and I have not been adjudicated guilty of the charges stemming from that arrest or the alleged criminal activity surrounding my arrest.
4. I am eligible for the relief requested, to the best of my knowledge and belief, and do not have any other petition to expunge or seal pending before any court.
£5) That I have never secured a prior records expunction or sealing under any law.
£6. (For use in expungementexpunction ^petitions only.) That-mMy record of arrest for this date has been sealed for atJeastten-flO) years; or an indictment or information was not filed against me for the above criminal transaction; or an
[[Image here]]
ORDER TO EXPUNGE PURSUANT TO FLORIDA STATUTESECTION 943.0585, FLORIDA STATUTES AND ERCPFLORIDA RULE OF CRIMINAL PROCEDURE 3.692
THIS CAUSE having come on to be heard before me this date upon the Defendant’sa Ppetition to Eexpunge certain records of the Defendanfepetitioner’s arrest on the_day of-, 19-, by-(arresting agency), for_(charges), and the Gcourt having heard argument of counsel and being otherwise fully advised in the premises, the court hereby finds the following: 1. That tThe Defendantpetitioner has never previously been adjudicated guilty of a criminal offense or a comparable ordinance violation. 2. That tThe Defendantpetitioner was not adjudicated guilty of charges stemming from the arrest or criminal activity to which this expunction ^petition pertains.
4. That tThis' record has either been sealed for at least ten (10) years; or no indictment or information was ever filed in this case against the Pefendantpetitioner; or an indictment or information filed against the defendant was dismissed by the prosecutor or the court. wWhereupon it is thereby
ORDERED AND ADJUDGED that saidthe Ppetition to Eexpunge is hereby granted. All Ccourt records pertaining to the above-styled case shall be expunged^ ealed in accordance with the procedures set forth in Florida Statute 943.058 and ERCPFlorida Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the Cclerk of this- Ccourt shall forward a certified copy of this Oorder to the State Attorney (check one)_state attorney, _special prosecutor,_statewide prosecutor,_(arresting agency), and the Sheriff of_County, who will comply with the procedures set forth in Florida Statutesection 943.0585, Florida Statutes, and appropriate regulations of the Department of Law Enforcement, and who will further forward a copy of this Oorder to any agency that their records reflect has received the instant criminal history record information; and it is further
ORDERED AND ADJUDGED that_(arresting agency) shall expunge all information concerning indicia of arrest or criminal history record information referenceregarding this Pefendantpetitioner in accordance with the procedures set forth in Florida Statutesection 943.0585, Florida Statutes, and ERCPFlorida Rule of Criminal Procedure 3.692.
[[Image here]]
ORDER TO SEAL RECORDS PURSUANT TO FLORIDA -STAT-U-TESECTION 943.059, FLORIDA STATUTES, AND ERCPFLORIDA RULE OF CRIMINAL PROCEDURE 3.692
THIS CAUSE having come on to be heard before me this date upon -Defen-danfepetitioner’s Pgetition to Sseal Rreeords concerning the petitioner’s arrest on the_day of_, 19_, by the_(arresting agency), and
1. That tThe Defendantpetitioner has never been previously adjudicated guilty of a criminal offense or comparable ordinance violation.
2. That-tThe Defendantpetitioner was not adjudicated guilty of charges stemming from the arrest or criminal activity to which the instant Pgetition pertains.
3. That-tThe Defendantpetitioner has not secured a prior records expunction or sealing; whereupon it is thereby
ORDERED AND ADJUDGED that the Ppetition to Sseal Rrecords be and the same hereby is granted. All Ccourt records pertaining to the above-styled case shall be sealed in accordance with the procedures set forth in Florida Statute 943.058, and F-RCPFlorida Rule of Criminal Procedure 3.692; and it is further
ORDERED AND ADJUDGED that the ©clerk of this Ccourt shall forward a certified copy of this ©order to the State Attorney (check one) — state attorney, _special prosecutor,_statewide prosecutor,_(arresting agency), and the Sheriff of __County, who will comply with the procedures set forth in Florida Statutesection 943.0589, Florida Statutes, and appropriate regulations of the Department of Law Enforcement, and who will further forward a copy of this ©order to any agency that their records reflect has received the instant criminal history record information; and it is further
ORDERED AND ADJUDGED that_(arresting agency) shall seal all information concerning indicia of arrest or criminal history record information refereneeregarding this Defendantpetitioner in accordance with the procedures set forth in Florida-Statutesection 943.0589, Florida Statutes, and FSGPFlorida Rule of Criminal Procedure 3.692.
All costs of certified copies involved herein are to be borne by the Petition-
[[Image here]]
COMES -N-QW-tThe Defendantpetitioner, _, by and through histhe undersigned attorney, aud-petitions this Hhonorable Geourt, pursuant to Florida Rule of Criminal Procedure 3.692* and Florida Statutesection_ 943.0585, or_ section 943.59 Florida Statutes, to_expunge/seal_all criminal history record information in the custody of any criminal .justice agency and the official records of the court concerning histhe petitioner’s arrest on the _day of_, 19-, by-(arresting agency), for_(charges), and as grounds therefor would shows:
1. That oOn the -- day of_, 19_, the Defendantpetitioner, -, a-(race/sex), whose date of birth is (date of birth), was arrested by _(arresting agency), and charged with (charges).
2. -That-tThe Defendantpetitioner has not been adjudicated guilty of any of the charges stemming from this arrest or alleged criminal activity.
3. The petitioner has not been previously adjudicated guilty of a criminal offense or a comparable ordinance violation-
s'. That tThe Defendantpetitioner has not secured a prior records expunction or sealing under this-Ssection 943.0585, or 943.059, Florida Statutes, former section 943.058, Florida Statutes, former ¿section 893.14, Florida Statutes, or former Sseetion 901.33, Florida Statutes, or any other law, rule, or authority.
4,5. (To be used only when requesting expunction.) Such record has been sealed under this — Sseetion 943.059, Florida Statutes, former section 943.058, Florida Statutes, former Sseetion 893.14, Florida Statutes, or former Sseetion 901.33, Florida Statutes, for at least ten (10) years; or there has not been an indictment or information filed against the Defendantpetitioner who is the subject of this criminal history record information; or an indictment or information filed against the petitioner who is the subject of this criminal history information was dismissed by the prosecutor or the court.
WHEREFORE, the Defendantpetitioner, . , moves this ■ Honorable Court to — expunge/seal _ any criminal history record information and any official court records referenceregarding his/her arrest by (arresting agency), for_(charges), on the_ day of_, 19__
I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been served upon_(name of prosecuting authority), (check one) State Attorney for the_Judicial Circuit, in and for_County,_Special Prosecutor, __ Statewide Prosecutor); _ (arresting agency)*; and -(Sheriff of Ccounty where ©defendant was arrested, if different); and the Florida Department of Law Enforcement, this _ day of _, 19_
Name:
Address:
City/State:
Telephone Number:
Fla.Bar No.:
Committee Notes
1984 Adoption. In order to have uniformity throughout the Sstate, the committee proposes these forms for Ppetition to Eexpunge or Sseal, Oorder to Sseal, and Oorder to Eexpunge and Aaffidavit. These also should be a great asset to counsel and an invaluable asset to the clerks and FDLE, etc., who will be receiving ©orders in the future. The subcommittee working on these proposed forms has contacted law enforcement agencies, clerks, etc., for their input as to these proposed forms.
Concurrence in Part
concurring in part and dissenting in part.
I concur and dissent in accordance with my statement in Amendments to Florida Rules of Criminal Procedure 3.133, 3.692, 3.987 and 3.989, 630 So.2d 552, 553 (Fla.1993).