JULIAN DE JESUS HERNANDEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida's 1988 amendment to section 943.058 eliminated the substantive right to seal or expunge criminal records following dismissal of charges, giving courts sole discretion to deny such requests, and the trial court did not abuse its discretion in denying the appellant's motion where the charges involved lewd and lascivious acts against a child and the appellant was a law-enforcement officer.
A court does not abuse its discretion in denying a motion to seal or expunge criminal records when the charges involved lewd and lascivious acts against a minor and the defendant was a law-enforcement officer.
[1] Section 943.058(2)(d), Florida Statutes, as amended in 1988, eliminated any substantive right to sealing or expunction of criminal records and vests sole discretion in th…
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Join FLexlaw to unlock all legal intelligenceAppellant, a law-enforcement officer, was charged with lewd and lascivious acts against a child under eighteen. The prosecution was dismissed because …
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PER CURIAM.
A 1988 amendment to section 943.058, Florida Statutes, overruled Canter v. State, 448 So. 2d 64 (Fla. 3d DCA1984), where we held that following the State’s dismissal of criminal charges, the accused has a substantive right to have court records of the charges closed to public inspection. It is now provided in section 943.058(2)(d):
This subsection does not confer upon any person who meets the criteria set out in this subsection a right to the sealing or expunction of any criminal history record, and any request for sealing or expunction of a criminal history record may be denied at the sole discretion of the court.
In denying the motion to seal or expunge, the court considered the following facts: (1) the appellant was a law-enforcement officer when the offense was allegedly committed; (2) the lewd and lascivious acts were committed against a child under the age of eighteen; (3) the prosecution was dismissed because it was deemed to be in the child s best emotional interest that she not be subjected to the rigors of a trial; and (4) the court was of the view that the appellant should not be employed as a public servant, especially in law enforcement, which was assured if his criminal record remained open to examination.
It is not shown by the record that the court abused its discretion in denying the motion to seal or expunge.
Affirmed.
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Anderson v. State, 692 So. 2d 250 (Fla. 3d DCA 1997)…ety, there is a compelling interest in knowing the character of the public employees who serve the community. This is especially true where, as here, a fire fighter has pled nolo conten-dere to cocaine charges. Id. Similarly, in Hernandez v. State, 603 So. 2d 105 (Fla. 3d DCA 1992), this court upheld the denial of a motion to seal or expunge where the defendant, a law enforcement officer, had been charged with committing lewd and lascivious acts against a child under eighteen. Id. at 105-06. The weighing of…
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Aurelian Smith, Jr. v. State, 614 So. 2d 525 (Fla. 5th DCA 1993)…s used in section 943.058 do not permit arbitrary, capricious or whimsical denial of expunction. Instead, this court must decide whether the trial judge used reasonable discretion in denying expunction. [Cites omitted]. See also Hernandez v. State, 603 So. 2d 105 (Fla. 3d DCA 1992). There was no hearing afforded appellant, opposing governmental agencies did not object to the relief sought, and appellant apparently meets objective criteria for favorable consideration. He was not adjudicated guilty of the sim…
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Mantilla v. Hon. Stanley Goldstein, 608 So. 2d 828 (Fla. 3d DCA 1992)…Whether a criminal record should be sealed or expunged involves the exercise of judicial discretion, Hernandez v. State, 603 So. 2d 105 (Fla.3d DCA 1992), as to which mandamus does not lie. Kloski v. Matecumbe Marina, Inc., 598 So. 2d 275 (Fla.3d DCA 1992) (Mandamus not a vehicle to command performance of an act where public officer has discretion). Mandamus is denied without prej…
Authorities Cited
- Canter v. State, 448 So. 2d 64 (Fla. 3d DCA 1984)