Last updated: November 29, 2024

 I.  Loss & restoration of civil/firearms rights

A.  Civil Rights (vote, office, jury)

Under the Florida Constitution, “No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights or removal of disability.”  Fla. Const. art. VI, § 4; Fla. Stat. § 944.292(1).  Convicted individuals are also disqualified from jury eligibility. See Fla. Stat. § 40.013(1).  Until recently, these rights could be regained only on a case-by-case basis, after a waiting period and in some cases a formal hearing before the Board of Executive Clemency, composed of the governor at at least two cabinet members. See Part II, infra. A 1970’s-era effort to enact legislation restoring civil rights automatically was ruled unconstitutional by the Florida Supreme Court as a usurpation of the pardon power. See In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla. 1976).  

In 2018 a ballot initiative known as “Amendment 4” modified art. VI, § 4 to provide that “the disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence, including parole and probation.” Persons convicted of murder or a felony sexual offense were excepted from this restoration provision and therefore could regain the vote only upon obtaining a formal restoration of rights from the Clemency Board. Amendment 4 covered only voting rights, not eligibility for office and jury service.     

In June 2019, responding to Amendment 4, the Florida legislature passed a law defining “completion of all terms of sentence” to include “full payment” of any restitution ordered by the court, and “full payment of fines or fees ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision . . . .”  Fla. Stat. § 98.0751(2)(a)(5), enacted by S7066.  It includes only financial obligations “contained in the four corners of the sentencing document,” and not amounts “that accrue after the date the obligation is ordered as a part of the sentence.”   Id. § 98.0751(2)(a)(5)(c).  In addition to actual payment of the financial obligations, the requirements are considered complete if the payee appears in court or provides notarized consent of the termination of the obligation to the payee, or the person completes all community service hours if converted by the court. Id. § 98.0751(2)(a)(5)(e). The law explicitly requires that the payment requirement “is not deemed completed upon conversion to a civil lien.”  Id.¹

In 2021, the Clemency Board amended the Rules of Executive Clemency to provide for restoration of all three civil rights (unless the vote has already been restored pursuant to Amendment 4) “automatically upon processing and without a hearing pursuant to Rule 9, or with a hearing pursuant to Rule 10.”  See Rule 5(E). Eligibility criteria for “automatic” restoration under Rule 9 are the same as for voting under Amendment 4 and Fla. Stat. § 98.0751(2)(a)(5). 

Under Rule 9A, as revised in March 2021, the right to vote is “immediately restored upon processing by automatic approval of the Clemency Board” if the following requirements are met.

• • The person has completed all terms of sentence under Amendment 4 as defined in § 98.0751(2)(a), Fla. Stat. (2020)—including any legal financial obligations—arising from his or her felony conviction or convictions;
  • The person has no outstanding detainers or pending criminal charges;
  • The person has paid all restitution pursuant to a court order or civil judgment and obligations pursuant to Chapter 960, Florida Statutes;
  • The person has never been convicted of one of the following crimes: a. Murder as defined in § 98.0751(2)(c), Fla. Stat. (2020); b. A felony sexual offense as defined in § 98.0751(2)(b), Fla. Stat. (2020).

See also Rule 5(E)(1).  While the “restored upon processing” caveat requires that a person file an application in order to qualify for “automatic” restoration, the website of the Office of Executive Clemency specifically states that “A clemency application is not required for the Restoration of Voting Rights pursuant to Amendment 4.” At the same time, there has been continuing uncertainty surrounding eligibility to vote, notably on the question of outstanding court debt, so that there has been a move to create an easily accessible process whereby people uncertain about their status may clarify their right to vote.

Persons who fail to qualify for “automatic” restoration under Rule 9 because they owe court debt must apply under Rule 10, which requires an investigation by the Florida Commission on Offender Review, and specific approval by the Clemency Board. Anyone with an ineligible conviction (murder or felony sexual offenses) may also apply under Rule 10 upon completion of sentence.

A 5-year wait to regain office and jury rights automatically under Rule 9, and a seven years to have a hearing before the board under Rule 10, were eliminated in the 2021 amendments to the Rules, as was a provision restoring rights automatically without a hearing 15 years after completion of sentence. However, an individual who has previously had their civil rights restored under Rule 10 and is subsequently convicted of another felony offense is ineligible for further restoration “for a period of no less than seven (7) years after completing all non-financial terms of sentence as defined in § 98.0751(2)(a).”  See Rule 5(E)(2).   

Restoration under either Rule 9 or 10 does not include firearms rights and does not affect licensing eligibility. In 2011, the Florida legislature passed the “decoupling bill,” which prohibits licensing boards from denying any license based solely on the fact that the applicant has not had civil rights restored.  See Fla. Stat. § 112.011(1)(c).  There are exceptions for law enforcement agencies, and licensing agencies are not precluded from taking into account the fact that civil rights have not been restored.  See § 112.011(2) (listing exceptions).  See also § 112.0111, also enacted in 2011, which requires agencies to inventory and analyze laws allowing agencies to restrict licenses based upon criminal history.  

Out-of-state convictions:  The voting rights of individuals convicted of federal offenses or in other states are restored on the same basis as for Florida convictions, so that they must apply to the Board and satisfy the requirements for automatic restoration.  See Rules of Executive Clemency, Rules 9C and 10B. Prior to 2011, Restoration of rights by another state was given effect under the Full Faith and Credit Clause.  See Schlenther v. Depart. of State, Div. Of Licensing, 743 So.2d 536, 537 (Fla. 2d DCA 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point. The matter is simply at an end.”).

The Office of Executive Clemency maintains a search tool for individuals to search if their civil rights were restored by the Board of Executive Clemency. The Restoration of Civil Rights (RCR) search allows a person to find and print a Certificate if granted.   

B.  Firearms

Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.  Fla. Stat. §§ 790.06(2)(d),  790.23(1).  This prohibition does not apply to any person whose firearm authority has been restored or whose criminal history record has been expunged. § 790.23(2). The governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period following completion of sentence, as defined in § 98.0751(2)(A).  See Rule 5D of the Rules of Executive Clemency, supra.  Florida courts have held that firearms relief granted by another jurisdiction will be given effect by Florida.  See Schlenther v. Depart. of State, Div. Of Licensing, 743 So.2d 536, 537 (Fla. 2d DCA 1998).  In addition, Florida may not deny a concealed weapons permit to an individual with an out-of-state conviction whose firearms rights were never lost.  See Doyle v. Depart. of State, Div. of Licensing, 748 So. 2d 353, 356 (Fla. 1st DCA 2000).   

   C. Florida Rights Restoration Coalition

The Florida Rights Restoration Coalition exists to help convicted individuals understand their rights under Florida law and to assist them in applying for whatever form of clemency they may desire. The moving force behind Amendment 4, FRRC has continued to be an effective voice for those with a criminal record in the state.  Its website contains a wealth of helpful advocacy information, including about its Fines and Fees Program. In addition, FRRC has partnered with We The Action to help pro bono attorneys assist affected individuals and “advocate for relief as needed on a case-by-case basis.”

II.  Pardon policy & practice

A.  Authority

The power to grant a pardon and/or to restore civil rights (except in cases of treason or impeachment) is vested in the governor, who may, “by executive order filed with the Secretary of State, suspend collection of fines and forfeitures, grant reprieves not exceeding 60 days, and, with the approval of two members of the Cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.”  Fla. Const. art. IV, § 8 (a); Fla. Stat. §§ 940.01, 940.05.  The governor and members of his Cabinet are constituted as the Board of Executive Clemency.  In April 2016, the Office of Executive Clemency website  reported that the attorney general, the State’s chief financial officer, and its agriculture commissioner joined the governor on the Board.  There is no current indication on that website or elsewhere on the internet of which cabinet officials sit on the board with the governor.  According to FAQs on that website, “The Governor also has the sole power to deny clemency.” 

B.  Administration

The Office of Executive Clemency (OEC), established in 1975, administers the day-to-day business of the Clemency Board, and interprets the Rules of Executive Clemency of Florida.  The Florida Commission on Offender Review (FCOR) is the administrative and investigative arm of the Clemency Board and reports directly to the Governor and the Cabinet. See also Office of Executive Clemency Overview, and Frequently Asked Questions. OEC’s annual report is included in the FCOR annual report. 

C.  Eligibility

Restoration of civil rights (RCR)

Rules 9 and 10 of the Clemency Rules, discussed in Part I above, provide two levels of eligibility, depending upon whether a person qualifies for automatic restoration of rights under the eligibility criteria set forth in Amendment 4 (see above).  Those who are eligible for automatic restoration may regain other civil rights under Rule 9 without a hearing, and those who are ineligible because of they have either not completed their sentence (including payment of all court debt) or because of the nature of their conviction, may regain their rights after a hearing under Rule 10.  No new charges can be pending, and all court debt must be paid before rights may be restored. Persons residing in Florida with federal and out-of-state convictions are eligible for restoration of rights on the same basis as those with Florida convictions, but they are not eligible for pardon.  Rule 9C, Rule 10B.

Pardon

A person is eligible to apply for a full pardon ten (10) years following completion of sentence, plus no outstanding financial obligations resulting from convictions, including traffic fines. See Rule 5E.  Persons whose guilty pleas are set aside pursuant to Fla. Stat. § 948.01(2) (see infra), may also apply.  The Rules require eight years after completion of sentence prior to applying for firearms restoration (see infra).

D.  Effect

Restoration of civil rights (RCR)

Restores “the basic civil rights” (the right to vote, the right to serve on a jury, and the right to hold public office).  Florida law independently prohibits disqualification from most public employment, even without a restoration, solely because of a prior conviction for a crime.  A convicted person may be denied such public employment “if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.” § 112.011(1)(a).  The law does not apply to law enforcement, firefighting, and county “positions deemed to be critical to security or public safety.” § 112.011(2).

Pardon

A Full Pardon “unconditionally releases the person from punishment and forgives guilt. It entitles an applicant to all of the rights of citizenship enjoyed by the person before his or her conviction, including the right to own, possess, or use firearms.”  Rule 4A, 4C.  Pardons may also be made conditional, and breach of conditions results in revocation of pardon.

E.  Process

Restoration of civil rights (RCR)

A different process applies for each of two different categories of offenses, identified in Clemency Rules 9A (without a hearing) and 10A (with a hearing).  The same Clemency Application is used for all types of relief except for those whose rights are restored upon completion of sentence. There are separate procedures and eligibility periods to apply for restoration of firearms (see infra).

If an application for restoration without a hearing is denied, a person may apply for restoration with a hearing, as long as they have no outstanding court debt. In cases where a hearing is required, provisions of Rule 6 apply.  Notification to the prosecutor and victims is required, and the Commission’s Office of Clemency Investigations conducts an extensive investigation for restoration of civil rights with a hearing to determine whether the person is crime-free and meets eligibility requirements (e.g., must have no pending criminal charges, no outstanding court debt).  When the investigation is complete, examiners put their recommendations into confidential files given to the Clemency Board before the hearing.  Applicants may wait years for a hearing.

Pardon

A person must submit a Clemency Application to the Office of Executive Clemency. A certified copy of the charging instrument, judgment, and sentence must be submitted for each conviction for which a pardon is sought. It may include other supporting documents. Upon a referral to the Florida Commission on Offender Review (FCOR), the Office of Clemency Investigations conducts confidential investigations. The FCOR may also speak with individuals who have written character or reference letters, employers, and other individuals. See Rule 7.

After the investigation, if the Commission recommends that an application be granted, it is placed on an agenda for an in-person hearing before the Clemency board. Hearings are held on a quarterly basis, and the agenda is posted on the Board’s website.  Applicants are not required to attend the hearing, but they have a right to make an oral presentation if they do.  Rule 11. At the hearing in person, each applicant may be questioned directly by members of the Board on matters relating to his character, rehabilitation, etc..  Strict time limits in Rule 12C apply for presentations (5 minutes per individual in favor with 10 cumulative minutes for all favorable witnesses, 10 minutes for all witnesses opposed).  Applicants who are denied must wait two years to reapply.  Rule 14.

F.  Historical note

Between 1975 and 1991, restoration of civil rights in Florida was automatic upon completion of sentence, though it was still necessary to apply and demonstrate eligibility. See Gallie v. Wainwright, 362 So.2d 936, 938 (Fla. 1978).  The practice of requiring a hearing before restoration began in 1991, and the list of qualifying offenses was lengthened in 1999 to include about 200 crimes.  The list of qualifying offenses was shortened by Governor Bush in 2004 after a series of investigative reports in the Miami Herald revealed lengthy delays and other shortcomings in the clemency process. See Debbie Cenziper & Jason Grotto, Clemency Proving Elusive for Florida’s Ex-Cons, Miami Herald, October 31, 2004; The Long Road to Clemency, Miami Herald, November 7, 2004. In April 2007, in accordance with a campaign promise, Governor Charlie Crist persuaded the Board to approve new rules making restoration automatic in many cases.  In 2011, Governor Crist’s reforms were rolled back by Governor Scott, with eligibility periods lengthened and standards toughened.  See notes 1 and 2, supra. As of 2021, efforts were successful to again loosen the standards, including omitting waiting periods before applying for restoration of civil rights, and removing the requirement for a hearing for most felony convictions.

G.  Frequency

Restoration of civil rights (RCR) grants

“Clemency action reports” documenting the gross number of RCR cases handled in the previous year are published annually by the Florida Commission on Offender Review (FCOR, the umbrella agency that houses the Office of Executive Clemency). These reports indicate that thousands of applications for RCR and other forms of clemency are received and processed each year, but the reports do not indicate how many cases are favorably recommended by the OEC or granted by the Board. For example, the Commission’s report for 2022-2023 simply states (at p. 14) :

OEC processed clemency requests for restoration of civil rights (RCR), full pardons, pardons without firearm authority; pardons for misdemeanors;  specific authority to own, possess or use firearms; remission of fines and forfeitures; capital case reviews as well as requests for review regarding commutation of sentence. Staff captured and documented in the clemency database the movement of cases, determinations, and actions by the governor or Clemency Board. Preliminary review lists were submitted to the Clemency Board along with additional cases requested by the Office of the Governor. In FY 2022–2023, OEC received a total of 3,536 applications for all forms of clemency. A total of 5,953 requests for clemency were completed.² 

Pardons and firearms restorations

Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.  Fla. Stat. §§ 790.001(6), 790.23(1).  The Governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period.  Rule 5D.

H. Florida Rights Restoration Coalition

As noted in Part I, the Florida Rights Restoration Coalition exists to help convicted individuals understand their rights under Florida law and to assist them in applying for whatever form of clemency they may desire. The moving force behind Amendment 4, FRRC has continued to be an effective voice for those with a criminal record in the state.  Its website contains a wealth of helpful advocacy information, including about its Fines and Fees Program. In addition, FRRC has partnered with We The Action to help pro bono attorneys assist affected individuals and “advocate for relief as needed on a case-by-case basis.”

I.  Contact

The 2023 report of the Florida Commission on Offender Review provides the following contact information: “For information regarding clemency applications for restoration of civil rights; full pardons; remission of fines; commutation of sentence; and specific authority to own, possess, or use firearms, call toll-free (800) 435-8286, or visit www.fcor.state.fl.us. Office of Exec. Clemency.” 

Florida Commission on Offender Review

4070 Esplanade Way

Tallahassee, FL 32399-2450

(800) 435-8286

III.  Expungement, sealing & other record relief

A.  Withholding adjudication of guilt, followed by sealing 

Under Fla. Stat. § 948.01(2), trial courts may withhold adjudication of guilt after a plea has been accepted or after a verdict of guilty has been rendered and place the defendant on probation if it appears “that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law . . . .”  See also Fla. R. Crim. P. Rule 3.670 (“where allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation”).  Upon successful completion of a treatment-based drug court program, pretrial veterans’ treatment intervention program, where charges may be dismissed, the record is eligible for expungement under §943.0585, if all other eligibility criteria is met. §§ 948.08(6)(d), (7)(b), (16)(1)(b), (16)(2)(b).  Where adjudication has been withheld, there is no conviction for purposes of impeachment, see State v. McFadden, 772 So.2d 1209, 1213 (Fla. 2000).

Under legislation adopted in 2004, trial courts no longer have authority to withhold adjudication in first degree felony cases.  They may withhold adjudication in second and third degree felony cases upon request of the prosecutor, or if “the court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in [Fla. Stat. § 921.0026, ‘mitigating circumstances’].”  In second degree felony cases, no authority exists if adjudication has been previously withheld. Fla. Stat. § 775.08435.

While there are no other categorical limits on which defendants may be eligible for a “withheld” disposition, sealing (limited access) is available only where a defendant has no prior conviction or adjudication and has not previously had a record sealed or expunged.  Fla Stat. § 943.0585(e); § 943.059(e).  Certain serious crimes, including crimes involving sex offender registration and violence, are ineligible for sealing in “withheld” cases.  § 943.0584.   Records in “withheld” cases that have been sealed may be expunged after ten years.  § 943.0585 (2)(h).  Expunction and sealing are defined § 943.045(16) and (19), quoted below.  

B.  Sealing and expungement of non-conviction records 

1. Court-ordered expungement and sealing for “first offenders”

In 2019, H7125 reorganized the provisions relating to sealing and expunction of non-conviction records, but with a few minor exceptions the eligibility criteria were not substantively changed (and are as described below).

Eligibility criteria and applicable procedures for sealing and expunging police and court records are set forth in Fla. Stat. §§ 943.0585 (expunction) and 943.059 (sealing) as well as Florida Rules of Criminal Procedure 3.692 and 3.989.  § 943.0584 identifies the crimes that are disqualifying. The effect of each form of relief is described in § 943.045(16) and (19), which provide as follows:

(16) “Expunction of a criminal history record” means the court-ordered physical destruction or obliteration of a record or portion of a record by any criminal justice agency having custody thereof, or as prescribed by the court issuing the order, except that criminal history records in the custody of the department must be retained in all cases for purposes of evaluating subsequent requests by the subject of the record for sealing or expunction, or for purposes of recreating the record in the event an order to expunge is vacated by a court of competent jurisdiction.

(19) “Sealing of a criminal history record” means the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.

Eligibility

Sealing is available immediately upon dismissal of charges or completion of any court-ordered supervision. § 943.059(1)(c), (d). Expungement is available only 10 years after sealing, “unless a plea was not entered or all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were dismissed before trial or a judgment of acquittal was rendered by a judge or a verdict of not guilty was rendered by a judge or jury.” § 943.0585(1)(h).  Charges for specified serious violent crimes are ineligible for either sealing or expungement. § 943.0584.

Prior conviction disqualification: A prior conviction in a Florida court for any felony or a list of specified violent misdemeanors, including as a minor, disqualifies a person from either form of relief for non-conviction records.  §§ 943.0585(d), 943.059(1)(b). (Prior to 2019 the disqualifying prior could have been from any jurisdiction.) A prior sealing or expungement is also disqualifying unless the expungement is sought for a record sealed 10 years before. §§ 943.0585(g), (h), 943.059(1)(e). In 2023 the legislature approved a slight expansion of eligibility to exclude prior juvenile adjudications from disqualification, but the bill was vetoed by the governor.  See SB 605.

The primary difference between the two forms of relief is that sealing is available immediately upon dismissal of charges or completion of any court-ordered supervision, while expungement is available only 10 years after sealing, “unless a plea was not entered or all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were dismissed before trial or a judgment of acquittal was rendered by a judge or a verdict of not guilty was rendered by a judge or jury.” § 943.0585(1)(h).

Sealing is available in cases where there has been no adjudication of guilt, as well as in cases where adjudication has been withheld – except that certain serious sexual and violent offenses are not eligible for sealing in withheld cases.  Expungement is available in cases where no charges were filed, or where all charges were dismissed prior to trial, and in withheld cases after a record has been sealed for 10 years. § 943.0585(2)(h). 

Sealing and expungement are available only if a person has no prior record.  § 943.059(1)(b)(3); § 943.059(1)(b)(3).   However, notwithstanding other eligibility requirements, a person may have their record expunged if they were found to have acted in lawful self-defense. § 943.0578.

Effective October 1, 2018, a person charged with otherwise eligible crimes may apply immediately for expungement if all charges were dismissed or in the event of a judgment of acquittal rendered by a judge, or a verdict of not guilty rendered by a judge or jury, without the record first being sealed for 10 years. § 943.0585(h)

Process

A person may not apply for sealing or expungement unless they first obtain a Certificate of Eligibility from the Department of Law Enforcement.  See Fla. Stat. §§ 943.0585(2) and 943.059(2). The FDLE requires the person to submit a certified copy of the disposition to which the request pertains, obtain fingerprints on the form from a law enforcement agency, and pay a $75 processing fee (unless waived). A certificate is valid for 12 months after the date it is stamped. The application for the certification is available on the FDLE’s website.

After receiving the Certificate of Eligibility, a person then files a petition in the county where the case occurred, along with the certificate of eligibility and a sworn statement. A copy of the petition must be served on the appropriate state attorney and the arresting agency, which may respond to the petition

The court is generally limited to sealing or expunging only one non-conviction record.  §§ 943.0585(1), 943.059. However, the court may, “at its sole discretion” order the sealing or expungement “of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest.” Id.  “This section does not confer any right to the sealing of any criminal history record, and any request for sealing a criminal history record may be denied at the sole discretion of the court.”  § 943.059.

Courts may order sealing or expungement of only a portion of a person’s criminal history record, pertaining to one arrest or incident, except that such partial sealing is prohibited if the defendant “has 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 to expunge pertains.” Fla. Stat. §§ 943.0585(1)(b)(2); 943.059(1)(c)(as amended).  Thus, redaction is prohibited.

Effect

Records that have been expunged are destroyed except for one copy retained by the Department of Law Enforcement and by the court. Records that have been sealed are available only to the subject of the record or the subject’s attorney.  §§ 943.0585(6)(a), 943.059(6)(a).

A person whose record has been sealed or expunged may lawfully deny the record except in certain specified contexts. §§ 943.0585(6)(b), 943.059(6)(b). The records remain available to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law.  Both sealed and expunged records also remain available to certain entities for licensing and employment purposes, including law enforcement, agencies serving vulnerable populations such as children and the disabled, and schools.

2. Automatic sealing

The 2019 law also authorized the Florida Department of Law Enforcement to create an automated process for sealing eligible non-conviction records in its possession (not court records).  The law did not establish a timetable for implementation.  See Fla. Stat. § 943.0595.  Automatic sealing of a criminal history record by the repository “does not require sealing by other criminal justice agencies.”  Id. (3)(c). SB 376 added procedures for court records to be made confidential under this section in 2023. After the department notifies the clerk of court of the sealing of the record, the clerk of the court must automatically keep the related court record confidential and exempt from disclosure. Id. (3)(b). Records appear to be eligible for automatic sealing under this provision even if the person has previously been convicted or had records previously expunged, and “there is no limitation on the number of times a person may obtain an automatic sealing.” § 943.0595(2)(b).

C.  Victims of human trafficking

Expungement of the criminal records of victims of human trafficking, including but not limited to convictions committed “as part of the human trafficking scheme,” is available pursuant to Fla. Stat. § 943.0583:

A person who is a victim of human trafficking may petition for the expunction of a criminal history record resulting from the arrest or filing of charges for one or more offenses committed or reported to have been committed while the person was a victim of human trafficking, which offense was committed or reported to have been committed as a part of the human trafficking scheme of which the person was a victim or at the direction of an operator of the scheme, including, but not limited to, violations under chapters 796 and 847, without regard to the disposition of the arrest or of any charges. 

§ 943.0583(3). Serious violent offenses and repeat offenders are not eligible for relief.  Id.  A conviction expunged under this section “is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.”  Id. Petitions “must be initiated by the petitioner with due diligence after the victim has ceased to be a victim of human trafficking or has sought services” and petitions must be accompanied by a sworn statement of their belief they are eligible. Id. at (4), (6). In 2021 this section was amended to permit expungement of more than one offense (“one or more offenses”) and to prohibit the charging of any fee for expungement of these records. In 2023, SB1210 made all pleadings and documents related to the petition confidential. 

D.  Juvenile records

In general, records of juvenile adjudications are confidential, Fla. Stat. § 985.04(1), subject to substantial exceptions.  Under Fla. Stat. § 985.04(2), juvenile records are available if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors; or transferred to the adult system.  See also § 985.04(1) (juvenile records may be disclosed to authorized personnel of the court, law enforcement and corrections, school superintendents and their designees, and any licensed treatment professional).  Expungement is available for any non-judicial record of a minor’s arrest (non-violent misdemeanor, first offense) after successful completion of a pre-arrest or post-arrest diversion program.  § 943.0582.  Records may be “destroyed” by the court as early as age 24.  

The court shall preserve the records pertaining to a child charged with committing a delinquent act or violation of law until the child reaches 24 years of age or reaches 26 years of age if he or she is a serious or habitual delinquent child, until 5 years after the last entry was made, or until 3 years after the death of the child, whichever is earlier, and may then destroy them, except that records made of traffic offenses in which there is no allegation of delinquency may be destroyed as soon as this can be reasonably accomplished.

§ 985.045.  This provision appears to relate solely to administrative record retention, however, and there is no statutory mechanism through which a person may request destruction.

Automatic Juvenile Expungement. The criminal history of a minor will be automatically expunged by the FDLE at the age of 21, unless the minor was committed to a juvenile correctional facility or classified as a serious or habitual juvenile offender, in which case expungement will otherwise occur at the age of 26.  § 943.0515(1).

Early Juvenile Expungement. A minor may apply to have his or her criminal history record expunged before reaching 21 years of age, if they meet the criteria for automatic expungement at the age of 21 described in the preceding paragraph, the offense was committed before the age of 18, and it has been five years without any criminal offense before the application. The approval of the state attorney is required and the process followed as set forth on the FDLE’s website. § 943.0515(2).

Juvenile diversion records:  In 2022, the FDLE was directed to expunge the “nonjudicial records” of juveniles charged with misdemeanors and non-violent felonies who successfully completed diversion, expanding this relief from those with first-time misdemeanor convictions. and excluding only specified violent offenses. Fla. Stat. § 943.0582(3)(b) (as amended by HR 195 and HR 197).  The minor must submit an application for diversion expunction and an official statement certifying the eligibility of the charged offenses and successful completion of the county’s diversion program. Id. (3)(a), (b). The minor could never had been charged previously with a criminal offense.  Id. (3)(c).  Such a record is confidential and exempt from public disclosure, except that the record must be made available to criminal justice agencies only for the purpose of: determining eligibility for diversion programs; a criminal investigation; or making a prosecutorial decision.  These bills were vetoed in 2021 by the Governor, but approved after violent offenses were excluded.  

IV.  Criminal record in employment & licensing

A.  Public employment and licensing – in general 

The general standards governing public employment and licensure are set forth in Fla. Stat. § 112.011(1)(a): “Except as provided in s. 775.16 [setting stricter standards for drug convictions], a person may not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime.” However, a person may be denied public employment “if the crime was a felony or first-degree misdemeanor and directly related to the position of employment sought.” Section 112.011(1)(b) provides that a license may be denied “based on a felony or first-degree misdemeanor that is directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare for the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.” In addition, “a state agency may not deny an application for a license, permit, certificate, or employment based solely on the applicant’s lack of civil rights.” These protections do not apply to law enforcement, corrections, firefighting, and county or municipality “positions deemed to be critical to security or public safety.” § 112.011(2).  People with drug offenses must comply with certain additional treatment and rehabilitation requirements before they may qualify for public employment or licensing.  § 775.16.  Successful completion of the Correctional Education Program by people with drug offenses may satisfy eligibility requirements for occupational licensure.  Id. 

B.  Health care employment and licensing

A conviction may be the basis for disqualification from employment or contracting with state agencies in connection with various health care and related professions, including care for children, and developmentally disabled or vulnerable adults.  See e.g., Fla. Stat. § 110.1127 (state employee positions for which screening required); § 409.175 (foster care homes and residential child-caring agencies); § 400.953 (home medical equipment providers); § 400.215 (nursing homes); § 393.0655 (developmental disability direct service providers); § 397.4073 (substance abuse services); § 489.129(1)(b) (construction contractor).

Case-by-case exemptions may be granted by licensing agencies, state-regulated facilities, and state agencies in cases where an individual would otherwise be disqualified as a result of a criminal record, pursuant to Fla. Stat. § 435.07(1).  This exemption procedure applies to some but not all types of conviction, and is available two years after completion of sentence.  In order to qualify for exemption an applicant must demonstrate “by clear and convincing evidence” that he or she “should not be disqualified from employment.”  § 435.07(3).  Applicants for an exemption.

have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

 Id.  The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in Fla. Stat. chapter 120.  See Fla. Stat. § 120.51 et seq. (Administrative Procedure Act).  No exemption may be granted to persons who have been convicted of any of the dozens of offenses enumerated in § 435.03 or § 435.04, even if they have been pardoned or had civil rights restored.  § 435.07(4).  These offenses include specified sex offenses; abuse of a child or vulnerable adult; assault or any other violence, including domestic violence; sale of controlled substances; felony theft or robbery.

In 2024 a new law allowed persons certified as having “lived experience” with homelessness to apply for an exception if convicted of any of the disqualifying offenses specified in § 435.03 or § 435.04.  See H975, adding § 420.6241. 

C. Business, professional and occupational licensing

Businesses and professions regulated by the Department of Business and Professional Regulation (DBPR) are subject to the “relates to” standard by virtue of Fla. Stat. § 455.227(1)(c). 

Barbering and construction trades:  A new provision was added to this chapter in 2019 by H7125 to prohibit consideration of a conviction more than five years old for licensing of barbers and cosmetologists; plumbers, electricians and a variety of other building trades; and “any other profession for which the department issues a license, provided the profession is offered to inmates in any correctional institution or correctional facility as vocational training or through an industry certification program.” See § 455.213(3)(a)(2019)(“A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license”).  Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.”  Persons are permitted to apply for a license prior to their release from confinement or supervision.  Starting on October 1, 2019, and updated quarterly thereafter, the boards must compile a list indicating each crime used as a basis for a license denial. For each crime listed, the board must identify the crime reported and for each license application the date of conviction or sentencing date, whichever is later; and the date adjudication was entered.

In addition, the DPBR is directed to compile a list of crimes that “do not relate to the practice of the profession or the ability to practice the profession and do not constitute grounds for denial of registration” for any contracting trade.  Fla. Stat. § 489.553 (9).  This list must be made available on the department’s website and updated annually. The DPBR must include on the list of crimes that “do not relate” any crimes that were reported by an applicant but not used to deny the license.  Id. It must also separately list any reported crimes that were used to deny a license.  § 489.553 (10). These lists are maintained under each individual professional license section on DPBR’s website, under “Apply for a License.” See example under Barber licenses. This new legislative initiative is reminiscent of the efforts begun under Florida Governor Jeb Bush to increase opportunities for individuals with a criminal record in entering licensed occupations.³.  

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   The governor’s signature on the bill triggered a legal challenge in federal district court based upon several constitutional theories, including that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not.  The United States Court of Appeals for the Eleventh Circuit ruled, in affirming the district court’s preliminary injunction, that Florida cannot condition voting on payment of an amount a person is genuinely unable to pay. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).   After a full trial on the merits, the district court held that the State may condition voting on payment of fines and restitution imposed by the court at sentencing that a person is able to pay, but may not, consistent with the Equal Protection Clause, condition voting on payment of amounts a person is unable to pay.  Further, at least some of the financial obligations are taxes that cannot block access to voting consistent with the Twenty-fourth Amendment, whether a person is able to pay or not.  See Jones v. DeSantis, Case 4:19-cv-00300-RH-MJF (May 24, 2020). For a comprehensive examination of the way in which the inability to pay court-ordered economic sanctions—fines, fees, surcharges, and restitution—may prevent people with felony convictions from voting throughout the United States, see Beth Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (2019); see also Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007).

2. Statistics on the number of RCR grants issued between 2004 and 2011 are contained in A Proviso Report on the Status of the Processing of Civil Rights Clemency Cases for FY 2010-2011.  In the 18 months after April 5, 2007, the Commission processed 271,000 applications for restoration of rights, and granted 146,549 of them, with about 60,000 cases still pending.  Proviso Report at pp. 6, 9.  According to an investigative series by the Miami Herald the fall of 2004, see note 4 supra, 48,000 requests for restoration of rights were granted between 1999 and 2004, compared with 200,000 rejected during that period.  No specific information is available on the number of pardons granted during this period. Pardons and firearms restorations were fewer when Governor Scott took office. See Lawrence Mower, Here’s what Rick Scott and others said about the Groveland Four (non) pardons yesterday, The Tampa Bay Times, Dec. 15, 2018.

3. In June 2011 a law was enacted at the governor’s initiative requiring each state agency responsible for professional and occupational regulatory boards to report to the governor and legislature all laws and rules governing the ability of professional licensing boards to deny employment or licensure based upon an individual’s criminal history, and to identify alternatives to any disqualifying statutes or rules. See Fla. Stat. § 112.0111. In January 2012, the Florida Department of Business and Professional Regulation submitted a report to the governor pursuant to this law, which included a list of laws and regulations that govern the ability of the DBPR and various licensing boards to deny licensure based upon criminal record and a “list of crimes for each profession that do not relate to an applicant’s ability to practice that profession,” and that are considered not “substantially related” to an individual’s ability to practice that profession.  See Letter from Ken Lawson, DBPR, to Governor Rick Scott, January 4, 2012.  This letter reported that “very few of our statutes and rules automatically disqualify applicants,” but that in most cases statutes and rules authorize denial of professional license for lack of good moral character when there is a “substantial connection between the prior criminal conviction and the practice of the profession.”  In addition, the DBPR also applies a “substantial connection” standard to deny business licensure.  On April 25, 2006, Governor Jeb Bush issued Executive Order No. 06-89, directing each state agency 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) report to him the reasons for any automatic disqualifications and any available procedures for waiver; and 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  The Governor asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  The Governor also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.”  The order emerged from the work of the Governor’s Ex-Offender Task Force, which found “many state laws and policies that impose restrictions on the employment of people who have been to prison,” affecting “more than one-third of Florida’s 7.9 million non-farm jobs, including state and local government jobs, jobs in state-licensed, regulated and funded entities, and jobs requiring state certification.”  See Final Report of the Florida Ex-Offender Task Force (2006).