NICHOLAS J. CAPUANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed a trial court's denial of a motion to expunge an arrest record. The trial court had ruled the expungement statute was not retroactive, but the appellate court found it should be applied retroactively based on a subsequent Supreme Court decision.
An order denying a motion to expunge an arrest record is appealable. The statute allowing expungement should be applied retroactively.
“We hold that a final order under Section 901.33 is reviewable by appeal.”
Establishes that the order denying the motion to expunge is appealable.
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Join FLexlaw to unlock all legal intelligenceAppellant sought to expunge his arrest record under a statute enacted after his arrest. The trial court denied the motion, holding the statute was not…
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ALDERMAN, Judge.
Appellant seeks reversal of an order denying a motion to expunge his arrest record pursuant to Section 901.33, Florida Statutes (1975). The trial court held that Section 901.33 is not retroactive and therefore not applicable to appellant’s arrest which occurred prior to the effective date of the statute. We reverse.
The State contends that an order denying a motion to expunge is non-appeal-able, pointing out that it is not included in Section 924.06, Florida Statutes (1975), as ope of the orders from which a criminal defendant may appeal. We reject this con-tentiofi\^Although appellant was formerly a defendant in a criminal case, he was not a defendant at the time he filed his motion. Section 901.33 provides that he may file his motion to expunge with the court wherein the charge was brought. The relief sought is civil in nature. The fact that the'statute directs that the motion to expunge be filed" with the same court wherein the moving party was formerly charged does not change the nature of the relief sought. We hold that a final order under Section 901.33 is reviewable by appeal.
Turning now to the merits of this appeal, we observe that subsequent to the trial court’s order, the Supreme Court decided the case of Johnson v. State, 336 So. 2d 93 (Fla.1976). In Johnson, the court held that the Legislature could not require the destruction of judicial records, but that to achieve the legislative intent, a court in a proper case could order that an arrest record be sealed.
Although the court in Johnson did not specifically treat the question of retro-activity, it is obvious from the facts of that case that the statute was given retroactive effect. We therefore conclude that the trial court erred in denying appellant’s motion upon the grounds that Section 901.33 is not retroactive. REVERSED and REMANDED for further proceedings consistent with the opinion of the Supreme Court in Johnson v. State, supra.
MAGER, C. J., and DOWNEY, J., concur.
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Citator
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State v. Solomon David Greenberg, 564 So. 2d 1176 (Fla. 3d DCA 1990)…it an ex post facto law in violation of the Constitution. Rather, the expungement statute as a whole is a remedial statute providing remedies which are civil in nature, and this section has already been held to apply retroactively. Capuano v. State, 347 So. 2d 629 (Fla. 4th DCA 1977). Furthermore, the defendant had no right to expungement of the record of his May 8, 1985 arrest and subsequent conviction even under the statute in effect in 1985. Section 943.058(3), Florida Statutes (1985) provides: [C]rimina…
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Canter v. State, 448 So. 2d 64 (Fla. 3d DCA 1984)…NESBITT, Judge. Norman Canter appeals an order denying his motion to expunge and seal the court record concerning a charge filed against him. The order is reviewable by appeal. Capuano v. State, 347 So. 2d 629 (Fla. 4th DCA 1977). We reverse. Canter was charged with three separate incidents of passing bad checks. The case numbers on the respective charges were 79-13001, 79-13002 and 79-13379. Although never formally consolidated, the three eases were han…
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State v. S.C., 762 So. 2d 1008 (Fla. 3d DCA 2000)…NESBITT, Senior Judge. The State appeals- an order granting defendant S.C.’s motion to expunge the court record concerning the charge filed against him. The order is renewable by appeal. See Capuano v. State, 347 So. 2d 629 (Fla. 4th DCA 1977). Florida Rule of Criminal Procedure 3.692 provides in part: Petition to Seal or Expunge (a) Requirements of Petition. All relief sought by reason of sections 943.0585-943.059, Florida Statutes, shall be by petition in writin…
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- Johnson v. State, 336 So. 2d 93 (Fla. 1976)