Questions and Answers About South Florida DUI, Criminal, Domestic Violence Cases and Home Insurance Claims
Many of those charged with a crime in Florida have little experience with the law, and they naturally have many questions. From information about how the local legal system works to the possible consequences of your charge, find answers to many common questions here.
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Am I eligible to expunge my record?
If you have no prior convictions (adjudicated guilty) and your case was dismissed (nolle prosequi) then you should be eligible to expunge your record of the criminal charges against you.
Am I eligible to seal my record?
If you have no prior convictions (adjudicated guilty) and you received a withhold of adjudication on this case and are finished with the sentence then you may be eligible to seal your record. There are a number of “disqualifying offenses” such as Arson, Aggravated Assault, Aggravated Battery, Child Abuse, Elder Abuse, Kidnapping, Manslaughter, Sexual Battery, Robbery, Carjacking, Burglary of a Dwelling, Stalking and Domestic Violence. Even if you receive a withhold of adjudication on these charges you still will not be able to seal your record.
Often times, I highly skilled criminal defense lawyer can negotiate to lesser charges that are not disqualifying offenses so your record can still be sealed.
I have been arrested several times but have never been convicted of a crime or pled guilty, can I have all the arrest records sealed or expunged?
No. With few exceptions, you can only seal or expunge once in a lifetime. Floridians are at a disadvantage in that Florida does not honor the concept of “innocent until proven guilty.” Even if a jury found you not guilty in every case, in Florida, you can only petition once to seal or expunge in your lifetime unless the court decides that an additional arrest is directly related to the original arrest.
Who qualifies for sealing or expungement?
A person who has NOT been adjudicated guilty (convicted) as an adult, and has not previously sealed or expunged may qualify, but there are many exceptions. There are also certain crimes that cannot legally be sealed from your record but can be expunged under the right circumstances.
What is the benefit of having my record sealed or expunged?
The moment you are arrested (or receive a Notice to Appear in Court) you have a criminal history that is maintained by the Florida Department of Law Enforcement. But when you have your record sealed or expunged, it is no longer a public record:
“A criminal history record ordered expunged (or sealed) that is retained by the department is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and not available to any person or entity except upon order of a court of competent jurisdiction**.”
**This subjects anyone that discloses it to liability. Liability is not automatic but the possibility is usually enough to have most private companies remove the information from their records as well.
What is the difference between sealing and expunging my criminal record?
When a record is sealed, the public will not have access to it through the government databases. That means most employers will not have access to the information. However, city, county, state and federal government and agencies, including the police and military, have a legal right to access criminal history records even if they are sealed. When a record is expunged, agencies that would have access to a sealed record will be able to know that criminal information has been expunged from the record, and would only have access to the record through a court order.
What is an expungement?
Expungement is a court-ordered process in which the legal record of an arrest or a criminal conviction is erased in the eyes of the law and should not appear on a background check.
I was stopped by security and accused of shoplifting. What should I do?
When security stops you at a store, typically they will ask to take your photograph and have you sign a written confession. You are not required to consent to either of these things, and you probably shouldn’t. If you refuse the store will call the police and you’ll either be arrested or issued a promise to appear. Depending on the value of the good you allegedly stole, you’ll be charged with either a misdemeanor or felony. Be polite with the officers, but do not say anything regarding the accusation against you. As soon as you are able, call lawyer. There are many defenses to a shoplifting case, but you’ll need a good lawyer on your side.
What is the theft diversion program?
First time offenders may be able to have all the charges DISMISSED by negotiating a Diversion Program. What you’ll have to do will be completely different depending on the County where the case is. Miami, Fort Lauderdale, and Palm Beach might only be a few miles away, but they have 3 totally different diversion programs.
Typically, these programs can range from 3 to 18 months and the prosecutor will want you to pay Restitution if there is any, complete an Anti-Shoplifting Course, community service and stay out of trouble.
The length largely depends on if it is a misdemeanor or a felony, and also the amount of restitution involved. If there is a lot of money that needs to be repaid, then you’ll need more time to pay that unless you can come up with a full payment right away.
There are informal diversion programs and formal diversion programs.
If it’s an Informal Diversion Program, you’re not actually monitored by anyone. That means you just complete the community service, Anti-Shoplifting class, and anything else is recommend and the case will be dismissed when we go back to court.
For a Formal Diversion Program, you’re actually monitored by probation and have to check in with them every month in addition to the Anti-Shoplifting Class, community service and other stipulations.
What are the punishments for theft, or shoplifting?
Petit Theft Shoplifting in Florida
If you’re arrested for Petit Theft in Florida, the max punishment will be either 60 days in County jail or 364 days in County jail depending again on the value of the items.
$99 or Less – Max Jail time 60 days
$100 to $299 – Max Jail time 364 days
Grand Theft Shoplifting in Florida
If you’re arrested for Grand Theft in Florida, the max punishment will up to 30 years Florida State Prison depending again on the value of the items.
$300 to 20 Grand the max will be 5 years in Prison.
20 Grand to 100 Grand – 15 years in Prison
100 Grand or more – 30 years in Prison
Additional Penalties for Shoplifting in Florida
Any shoplifting charge can result in a driver’s license suspension of 6 or 12 months. I have no idea what shoplifting has to do with a person’s ability to drive, but I don’t make the laws folks.
Some other penalties for Shoplifting include
Becoming a convicted felon (losing your right to vote, own a gun, and has a bad stigma)
Probation – Up to the same amount of max prison time –Up to 5, 15, or 30 years of probation.
Fines, and Court Costs .
There are many ways to avoid jail time in theft case, but having the right lawyer is essential.
How do you prove the value of the items in a theft case?
The state has to prove the fair market value of the items in a theft case, NOT the replacement cost of the items. To understand what this means, take the example below.
Let’s say you’re on trial for stealing a used Iphone from a person. The State will try to say that to replace a stolen IPhone costs up to $1,000 depending on the model.
But it’s very important to remember they can’t just say the amount it costs to replace the IPhone.
They need to prove the CURRENT FAIR MARKET VALUE of the IPhone that was actually taken. That depends on a variety of factors such as:
Which model IPhone is it?
What memory capacity is it?
What condition is the phone in?
How much has the IPhone depreciated since it was purchased?
Certain items, such as cars depreciate in value significantly once they’ve been driven. So in determining the current fair market value of the car that would have to be factored in as well.
What is the difference between petit theft and grand theft?
The difference is determined by the value of the goods that were stolen. If the value of the goods stolen is less than $300 then you will be charged with petit theft. If the value of the goods is over $300 then you’ll be charged with grand theft.
Petit theft is a misdemeanor charge, whereas grand theft is a felony charge and carries much harsher punishments.