Once a Florida expungement attorney has obtained a certificate of eligibility for his/her client, it is possible to proceed to the next step of the expungement process. During this phase of the process, the expunction procedure moves from the pre-filing phase to the filing phase.
STEP 2: Filing the Petition for Expunction:
During the filing phase, a Florida expungement lawyer will prepare, draft, and file a petition for expunction. This process requires the Florida expungement attorney to specifically draft certain claims in the petition. Finally, the applicant him/herself must swear to and sign the petition under oath.
An expungement attorney must include the following in his/her petition for expunction:
- Petitioner’s sworn statement that he/she has never been (prior to filing the petition) adjudicated guilty of a criminal offense or comparable ordinance, or adjudicated delinquent of any of the following offenses:
- A valid certificate of eligibility
- Assault, as defined in Fl. Stat. 784.011.
- Battery, as defined in Fl. Stat. 784.03.
- Carrying a concealed weapon, as defined in Fl. Stat. 790.01(1).
- Unlawful use of destructive devices or bombs, as defined in Fl. Stat. 790.1615(1).
- Negligent treatment of children, as defined in former Fl. Stat. 827.05.
- Assault or battery on a law enforcement officer, a firefighter, or other specified officers, as defined inFl. Stat. 784.07(2)(a) and (b).
- Open carrying of a weapon, as defined in Fl. Stat. 790.053.
- Exposure of sexual organs, as defined in Fl. Stat. 800.03.
- Unlawful possession of a firearm, as defined in Fl. Stat. 790.22(5).
- Petit theft, as defined in Fl. Stat. 812.014(3).
- Cruelty to animals, as defined in Fl. Stat. 828.12(1).
- Arson, as defined in Fl. Stat. 806.031(1).
- Unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property as defined in Fl. Stat. 790.115.
- Petitioner’s sworn statement that he/she has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains.
- Petitioner’s sworn statement that he/she has never sealed or expunged a record before, with the exception of a petition for expunction of a record previously sealed for 10 years and the petitioner’s sworn statement that the record is otherwise eligible for expunction.
- Petitioner’s sworn statement that he/she is otherwise eligible expunction, to the best of his/her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court.
At a minimum, each of the above listed items must be included by the expungement lawyer in his/her petition, or else the petition will be denied.
Once your expungement attorney has completed the preparation and drafting of the petition, he/she will then file it with the courts and set the matter for hearing. Prosecutors will have an opportunity to file a written response to the petition.
However, assuming the petition is facially sufficient, the process will then proceed to the argument phase. During the argument phase of a petition for expunction, the matter will be set for hearing before a judge and each side will argue for their respective clients.
The expungement lawyer will do his/her best to convince the judge to grant the petition and order the record expunged. The prosecutor may or may not object and if there is an objection, he/she will offer argument as to why the petition should be denied.
Of all the reasons to hire a Florida expungement lawyer, the argument phase is probably the most important. Being a successful litigator and knowing how to persuade a judge to grant the petition is strictly based on the skill and experience of the lawyer.
Ultimately, Florida Statutes endow judges with the complete discretion to either grant or deny a petition for expunction. There is no inherent right to expungement, yet there is no delineated reason why a judge should deny an otherwise facially sufficient petition.
In the end, the skill of your expungement lawyer and the discretion of your judge
will determine whether or not your record will be expunged.