Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

When a record is expunged, what that means is that government entities have to erase their data regarding the arrest processing and outcome of a particular case. There is an entire procedure that is set forth in the Florida statute and basically, it works like this. Certain cases cannot be expunged for any reason. If, for example, someone is convicted of a DUI and adjudicated guilty, that cannot be expunged. In fact, there is a list of cases and case types that cannot be expunged. A withholding of the adjudication of guilt will allow a record seal in most cases and an expunge after 10 years. But in cases like domestic violence, a withhold is treated as the person is convicted. There are a series of cases where charges cannot be expunged, and this is why it’s critically important that these cases are handled correctly because sometimes, it’s advisable to try and get charges substituted for other charges thinking down the road towards an expungement eventually.

Once an expungement is done, though, there may be other data through social media, Google searches etc., that is still out there. What I’m recommending that people do is if it looks like their case is going to result in a favorable outcome and with first offenders, you always want to make sure that you keep yourself realistic and not get too optimistic, yet you want to plan for down-the-road effects. In other words, we always begin with the end of the case in mind. If we’re looking at a case where we think we can obtain a negotiated dismissal, we want to keep expungement in mind but we also want to keep in mind digital eraser. The European Union has something known as the right to be forgotten. It’s sad to say but in 2017, the United States of America does not have the most advanced privacy right from the world.

Instead, that title goes to the European Union because someone can say that they have a right to be forgotten and search engines and other internet companies have to remove unfavorable data. Since we don’t have that in the United States, I recommend that each client contact the company like erasemugshots.com and talk to them about not only having mugshots removed from the public domain but also about what I call the digital eraser. It goes by different means but basically, the idea is you don’t want somebody putting your name into a search engine and then finding out all this negative information pops up almost immediately. If you’ve gone through the process of getting your record sealed or expunged and then someone sticks your name in the search and finds out all the information anyway, that sort of defeats the purpose of expungement.

Expungement technically only involves government entities but when doing an expungement, I always raise with my clients the idea of digital eraser because as time goes on and society becomes more technologically connected 24 hours a day, 7 days a week, maintaining control over your data, your privacy is increasingly important. When I began my career, there was no such thing as Big or Google and so if someone ask me if they would have a record, it took it to mean they were asking me if they have a record of conviction and I would restate it like, “When you ask me about the record, the answer I’m going to give is regarding a record of conviction because the adjudication of guilt was withheld, you will not have a record of conviction.”

Unfortunately, with online databases, someone may not have a record of conviction but if they have adjudication withheld, boom, there is all that data for everybody to see easily now. In 1990, nobody had access to it unless they physically went down to the courthouse. An expungement or a record seal removes information from government entities completely or seals it away from public view and in order to complete the process properly, in my opinion, there should also be some form of the digital eraser.

How Does Having A Record Expunged Compare To Having A Record Sealed In Florida?

There is a very important distinction between the two. When someone has adjudication withheld on a charge and they have not ever had a record seal or expunction previously in Florida, then they can petition for a record expunction if the charge was dismissed, whether by motion to dismiss, whether by voluntary nolle prosequi or a no prosecution. Now, the difference is a nolle prosequi means that a charging document called an information of indictment has been filed. Later voluntarily withdrawn due to negotiations or whatever. A no prosecution means that the person was charged but they did not have a formal charging document in the form of an information of indictment filed into their court record with the clerk of the court.

The way in which the prosecution withdraws that charge is by a no prosecution. The effect is the same in that it works out to be a dismissal and thus the charge qualifies for an expunction. If someone has adjudication withheld and they serve probation or just pay a fine, then the charge could be sealed as long as it’s not on the prohibited list and the charges cannot be sealed. Since Florida seems to like electing idiots from every village across the state, we never know what the legislature is going to do during the 60 days when they are in session and so the list of crimes that can be expunged or not, sealed or not is subject to change. One of my ongoing concerns when resolving a case for a client is whenever possible, I try to laser-in with first offenders on negotiated dismissals rather than adjudication withheld or reductions in charge.

A lot of times, people will ask me and tell me, they’ll say, “What about a reduction in charge; I want a reduction in charge”, and I’m sitting there thinking no, that’s not a good idea, let’s get a negotiated dismissal so that we don’t have to seal the record for 10 years and then risk that the legislature, during one of their 60-day sessions is going to decide, “Oh, those can no longer be expunged”. Someone has been waiting for 8 years, for example, to have their record expunged, it’s been sealed for 8 years, imagine the shock of waking up one morning and finding out, “That thing you had sealed, it’s been unsealed by an active legislature and now you can’t expunge it”. That hasn’t happened to anybody I’ve ever represented but I don’t exactly trust the government.

So I tend to focus on trying to get charges into a posture of dismissal rather than a settlement with adjudication withheld simply because once it’s expunged, it’s expunged. Whereas if it’s sealed, it might be expunged. I don’t like “I think it might be”, I like expunged. So, that’s the difference between the two. One is an eraser of government documents held by government entities, prosecution, law enforcement agencies, Florida Department of Law Enforcement, all those types of agencies and entities versus all of those agencies and entities including those I have listed sealing the records. We prefer it to be gone.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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