Many people believe that it is more difficult to expunge or seal a felony arrest, versus a misdemeanor arrest. Well, this belief both is and isn’t correct! Let me explain why.
Why felony expungement or record sealing may be more challenging
People are correct in their assumption that it can be more challenging to remove a felony from a criminal history record than to remove a misdemeanor charge. This is the case for two reasons:
1. In Florida, the decision whether to grant or deny a petition to seal or expunge is within the discretion of the court, based on a “consideration of all the facts and circumstances” standard. More serious charges may be more seriously considered by a court, plus, may increase the likelihood the state would object to your petition. If the state objects, a hearing must be held, and you would be faced with trying to prevent the prosecutor from convincing the judge that your history should not be sealed. If you are eligible for felony expungement, it means that the charges against you have been dropped, dismissed, or never filed. The state still does object to expunging certain very serious felony charges, even if never prosecuted. Doesn’t seem fair, I know, but it’s what happens. Which is why if you are applying for felony expungement, you should really have an experienced expungement attorney by your side to argue your case in court and overcome any state objections.
2. If you received a withholding of adjudication, you may be eligible to seal your felony case. However, the Florida statutes contain a list of offenses that cannot be sealed – and this list is comprised pretty much of just felony charges. These prohibited offenses include sex crimes, homicide, and kidnapping, to name a few…
How felony expungement and misdemeanor expungement are similar
Most people are incorrect, however, in assuming that felony expungement or record sealing is procedurally more difficult than sealing or expunging a misdemeanor. The Florida legal procedures to seal or expunge a felony and a misdemeanor are exactly the same. There are statutory requirements that a person must meet in order to be eligible to seal or expunge a record generally, but no distinction is drawn between felonies and misdemeanors specifically.
One thing to keep in mind though, if you are reading this article before your criminal case has been resolved, is that it is likely better under Florida law (from a sealing/felony expungement perspective only) to plead guilty or no contest to a lesser offense if arrested for one of the prohibited offenses, only if you can receive a withholding of adjudication. Remember, it is the final charge that counts.
I know this is a little counter-intuitive, but let me explain. For example, say you were arrested in Florida for sexual battery. If the prosecutor offers a good deal, say probation without jail time in exchange for a conviction, you are ineligible to have that arrest sealed or expunged (and you would be stuck with an arrest for sexual battery on your record forever). However, if you plead guilty or no contest to a lesser offense such as misdemeanor battery, and receive a withheld adjudication, you likely can have the record (including the arrest) sealed, if you meet all the other eligibility requirements. Obviously, this is not the only point you would want to consider in determining your case strategy, but it is one often overlooked that’s worth at least thinking about.
Let us help you figure it all out. Find out, risk-free, if you are eligible for felony expungement today!