The Amount of Discretion That Florida Courts Have in Denying Expungement Petitions


Kanji v. State
District Court of Appeal of Florida, Fifth District
February 20, 2009

Holding: Courts do not have unfettered discretion to deny a petition for expungement and must consider all facts and circumstances in determining whether expungement should be denied.

Why This Case is Important: Florida Statute section 943.0585 establishes the procedures and requirements for criminal record expungement. A petition for expungement will be denied under certain circumstances, such as when a criminal history record relates to a particular sexual offense or when the petitioner has been convicted of the crime. Generally, a court may only expunge a criminal record pertaining to one arrest or one incident.

Section 943.0585 also states expungement requests may be denied at the sole discretion of the court. According to this language, even if a petitioner is eligible for record expungement, he may still have his petition denied if the court determines it is not proper to grant expungement.

However, a court may not arbitrarily deny expungement. It must give a particular reason for ordering a denial, and may not deny a petition solely because of the nature of the crime. This case establishes that the court must consider the totality of facts and circumstances when determining whether expungement should be denied. A court that denies a petition arbitrarily, with no reason or explanation for the denial other than the type of crime, will be found to have abused its discretion.

Facts of This Case: The petitioner of this case appealed from a denial of his petition to expunge his records. In 1991, the petitioner was arrested for a felony. The State filed a Notice of No Information because there was insufficient evidence to sustain a finding of guilt beyond a reasonable doubt.

In 2007, the petitioner filed his petition for expungement. His expungement was properly accompanied by a certificate of eligibility for expunction from the Florida Department of Law Enforcement.

The State filed an opposition to the expungement request. The State presented evidence of the arrest affidavits and argued that the public had a right to know of the petitioner’s criminal records. The State also argued that petitioner’s alleged wrongdoing constituted a violation of trust. The trial court took the evidence into consideration and subsequently ordered a denial of petitioner’s expungement request.

The petitioner appealed, and the District Court of Appeals of Florida reversed the trial court’s decision. The court of appeals recognized that Section 943.0585 stated courts had the sole discretion to deny a request for expungement. However, the appeals court determined that having “sole discretion” did not amount to unfettered/absolute discretion.

The appeals court held that courts, in their discretion, must take into consideration all facts and circumstances when considering whether a request should be denied. The court of appeals determined that it is not enough to take into consideration the nature of the crime.

The court of appeals was unable to determine if the trial court exercised its discretion because no reason was given. As such, the court of appeals remanded the case back to the trial court and ordered it to make a final determination based on all the facts and circumstances surrounding the petition.

Key Language: Although section 943.0585 provides that any request for expunction of a criminal history record may be denied at the sole discretion of the court, Florida courts have consistently held that such discretion is not unfettered. The words sole discretion as used in this section does not permit the arbitrary denial of expunction. In exercising its discretion, the trial court must consider all the facts and circumstances and may not deny the petition based solely on the nature of the crime.

Expert Advise: “This case establishes what judges, defense attorneys and prosecutors must take into account when a request for record expungement is filed. An expungement request cannot arbitrarily be denied by the sole discretion of the court. Judges must look into the facts and circumstances of any given case, and it is not enough for the State to argue that the request should be denied because of the type of the crime.” Attorney Mathew Higbee

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