What can I do if FDLE denies my certificate of eligibility?

A certificate of eligibility is FDLE's finding that you meet the statutory conditions to ask a judge to seal or expunge one record. Without it, the court cannot order sealing or expunction (ss. 943.059(4)(b), 943.0585(4)(b), Florida Statutes). A denial letter feels final, but it is often the start of a second look at the record itself. How the whole record-clearing process fits together, and how Mr. Mead handles it, is on our records expungement page.

The first job after a denial is to read the reason FDLE gives and match it to the list below. Some reasons are permanent, some are errors that can be corrected, and some simply mean you applied too early.

Why does FDLE deny a certificate of eligibility?

FDLE's own "Reasons for Denial" page, which follows ss. 943.0585 and 943.059, lists four circumstances in which an application will be denied:

1. An adult adjudication of guilt. The record shows you were adjudicated guilty, as an adult, of a criminal offense or comparable ordinance violation, or adjudicated delinquent as a juvenile for any felony or for one of the misdemeanors listed in the statute. FDLE adds in bold that certain driving violations are criminal, naming driving under the influence, reckless driving and, with some exceptions, driving while license suspended, canceled or revoked.
2. An adjudication in this case. The record shows you were adjudicated guilty of, or adjudicated delinquent for, one or more of the acts from the arrest you are trying to clear.
3. A prior sealing or expunction. The record shows an earlier sealing or expunction under s. 943.0585, s. 943.059 or the older statutes they replaced. FDLE notes that relief obtained under other parts of the law does not count as a prior order.
4. A disqualifying offense. The record relates to one of the listed offenses, such as a chapter 794 offense, s. 800.04, s. 810.14, drug trafficking under s. 893.135 or a sex offender registration predicate, where the person was found guilty or pleaded guilty or no contest, without regard to whether adjudication was withheld.

The statutes add two more conditions that can stop an application. You must no longer be under court supervision for the case you want to clear (ss. 943.059(1)(d), 943.0585(1)(f)), and the paperwork must be complete: a certified disposition from the clerk, the $75 fee, and, for expunction, a written certified statement from the State Attorney (ss. 943.059(2)(a), 943.0585(2)(a)). The general eligibility rules are explained in whether you are eligible to seal or expunge your record in Florida.

Can I appeal FDLE's denial?

FDLE answers this in its frequently asked questions, under the heading "Can I appeal (ask for judicial review of) the denial." Its answer has two branches, and which one you are on depends on why you think FDLE got it wrong.

• The record is wrong or incomplete. FDLE says the procedure for reviewing and correcting the record is in Rule 11C-8.001, Florida Administrative Code, and points to its Personal Review process for getting a copy of your record to check it.
• The record is right, but the law was misapplied. FDLE says you "may appeal the denial," which it explains as asking the court that would hear the petition to seal or expunge to review FDLE's decision.

FDLE's answer closes by telling applicants with questions to seek legal advice or contact the Clerk of Court in the county where the petition would be filed. It does not set out a form or a deadline for asking the court, so the way the request is framed matters. In Palm Beach that court is the 15th Judicial Circuit, in Broward the 17th, in Miami-Dade the 11th and in Martin the 19th, and local details for each are on our Palm Beach County criminal defense page and its sister county pages.

How does a Personal Review fix a record error, step by step?

Section 943.056 gives every person the right to review his or her Florida criminal history record, verified by fingerprints, and to challenge it. FDLE's FAQ says a Personal Review is not required before applying for a certificate, but it is the tool for a denial caused by bad data.

1. Request the record. Complete FDLE's Personal Review of Florida Criminal History Record form. Only the person or that person's designated attorney may request it. FDLE charges nothing for the review.
2. Get fingerprinted. FDLE requires fingerprints taken by a law enforcement or criminal justice agency, and says most local police departments and sheriff's offices offer the service for their own fee. Rule 11C-8.001(2) says fingerprints may not be sent to FDLE electronically for this purpose.
3. Mail it. The form and fingerprint card go to FDLE, Post Office Box 1489, Tallahassee, FL 32302-1489, Attn: Criminal History Record Maintenance Section. FDLE returns the card with the result and a copy of any record it finds (Rule 11C-8.001(4)).
4. Find the source of the error. If the record is wrong, the rule makes it your responsibility to contact the agency that submitted that part of the record. That agency decides whether you are right, makes the correction and notifies FDLE (Rule 11C-8.001(5)).
5. If the agency will not correct it. For an agency covered by chapter 120, you may start an administrative proceeding with judicial review (s. 943.056(2); Rule 11C-8.001(7)). For an agency not covered by chapter 120, you petition the agency in writing for a special hearing panel (Rule 11C-8.001(8)).
6. Reapply. Once the record is corrected, a new application for a certificate can go to FDLE with the corrected certified disposition.

The special hearing panel runs on short deadlines. The panel is one person nominated by you, one by the agency and a presiding member both agree on; if no third panelist is in place within ten days, FDLE's Executive Director appoints one. The agency answers in writing within twenty days after the petition is filed, and the panel convenes within thirty days. You carry the burden of proving by substantial competent evidence that the record is incorrect or incomplete, although the burden shifts to the agency if it fails to answer or to proceed in good faith (Rule 11C-8.001(8)(a) to (d)). Either side may then seek review by the Executive Director within ten days of the panel's final findings, and judicial review after that.

A Personal Review copy has a limit worth knowing: FDLE says it contains no demographic information and cannot be used for immigration, employment, licensing or certification purposes. It is a checking tool only. Questions go to the Criminal History Record Maintenance Section at (850) 410-7898.

Can I apply again after a denial?

Yes, when the reason has changed. The conditions are checked when you apply, so a person who was still on probation can apply again once supervision ends (ss. 943.059(1)(d), 943.0585(1)(f)), sending the documentation showing termination of probation that FDLE's instructions ask for. A person who completed pretrial intervention or another diversion program may send the completion certificate or letter in place of a certified disposition. How those programs end a case is covered in pretrial diversion in Palm Beach and Broward.

A new application means a new $75 processing fee, because FDLE describes the fee as nonrefundable. Some disqualifiers never end: an adult adjudication of guilt, an earlier court-ordered sealing or expunction, and a conviction for a listed offense. For those, the realistic question is whether a different statute fits, not whether to reapply.

A certificate that was granted but not used has its own clock. It is valid for 12 months after the date stamped on it, and after that the person must reapply, with eligibility judged by the person's status and the law in effect at the time of the new application (ss. 943.059(2)(b), 943.0585(2)(b)). How long each stage takes is set out in how long it takes to seal or expunge a record in Florida.

What changes the answer?

• Out-of-state convictions. The statutes bar a person "adjudicated guilty in this state" (ss. 943.059(1)(b), 943.0585(1)(d)), but FDLE's FAQ says an adult adjudication "in any jurisdiction" makes the record ineligible, and FDLE runs state, national and criminal traffic record checks. A denial on this ground is one where the gap between the agency's reading and the statute's words may matter.
• Criminal traffic cases. FDLE checks the Department of Highway Safety and Motor Vehicles driving record because criminal traffic offenses may appear there and not in FDLE's own system. Non-criminal traffic offenses such as careless driving have no effect, according to FDLE. The DUI rule is explained in whether a DUI can be sealed or expunged.
• Juvenile adjudications. A juvenile adjudication of delinquency for a felony or a listed misdemeanor does not bar sealing if that juvenile record was expunged under s. 943.0515 (s. 943.059(1)(b)). The juvenile timetable is covered in whether a juvenile record can be expunged.
• A withhold, not a conviction. A withhold of adjudication does not count as an adjudication of guilt for the general bar, but it does count as a "conviction" for the listed offenses in s. 943.0584(1). The difference is explained in what a withhold of adjudication is.
• Other statutes. FDLE says automatic juvenile expunction under s. 943.0515, administrative expunction under s. 943.0581, lawful self-defense expunction under s. 943.0578, juvenile diversion expunction and human trafficking expunction do not prevent a later court-ordered sealing or expunction. Automatic sealing under s. 943.0595 is also not one of the prior orders the statutes list (ss. 943.059(1)(e), 943.0585(1)(g)). An arrest made by mistake has its own route, set out in whether an arrest made by mistake can be erased.
• Self-defense cases. A certificate under s. 943.0578 is issued "notwithstanding" the usual eligibility rules in s. 943.0585(1) and (2), when the State Attorney certifies that the case was not filed or was dismissed because the person acted in lawful self-defense. That path is explained in whether a self-defense arrest can be expunged.

A worked example

For example, take a hypothetical Boynton Beach applicant whose only record is a 2016 misdemeanor that she remembers ending in a withhold of adjudication. FDLE denies her certificate on the ground that she was adjudicated guilty. She orders the certified disposition from the Palm Beach Clerk, and it shows adjudication withheld. Because the record, not the law, is the problem, her path is FDLE's Personal Review: she is fingerprinted at a local agency, mails the form to Tallahassee, receives her record, and contacts the agency that reported the wrong disposition. If that agency corrects it and notifies FDLE, she reapplies with a new $75 fee. If instead her record were accurate and she believed FDLE had misread the statute, FDLE's answer would point her to the circuit court where the petition would be filed. This is an illustration of the published process, not a client's case or a prediction.

Common mistakes people make

• Reapplying with the same paperwork before finding out whether the record itself is wrong.
• Ordering a Personal Review copy and trying to use it for a job or immigration filing, which FDLE says it cannot be used for.
• Forgetting an old criminal traffic case, such as a DUI or driving while license suspended, that FDLE will find in the driving record.
• Applying while still on probation, then paying a second nonrefundable fee.
• Sending an expunction application without the State Attorney's certified statement.
• Treating the denial as the end, when a different statute, such as automatic sealing or administrative expunction, may fit the record.

What to do this week

1. Read the denial letter and write down the exact reason FDLE gives.
2. Order a certified disposition for every case FDLE cites from the clerk of the county where it was filed.
3. Compare each disposition with what FDLE says the record shows.
4. If they do not match, start a Personal Review and identify the agency that reported the error.
5. If they match, list which disqualifiers are permanent and which end, such as probation.
6. Have a lawyer review whether a court review of FDLE's decision, a corrected application or a different statute is the right next step. The full filing process is in how to seal or expunge a record, step by step.

Frequently asked questions

Will FDLE refund my $75 if I am denied?

No. FDLE's instructions describe the $75 processing fee as nonrefundable, and a new application needs a new payment. The statutes allow FDLE's executive director to waive the fee (ss. 943.059(2)(a)3., 943.0585(2)(a)4.).

Should I check my record before applying again?

FDLE says a Personal Review is not a requirement, but it lets you see which arrests may qualify before you pay. The review is free from FDLE, although the fingerprinting agency may charge.

How do I ask FDLE about my application?

FDLE directs process and status questions to [email protected] and asks that status requests include a copy of a government-issued photo ID. If a lawyer represents you, FDLE corresponds with the lawyer only when it receives a letter of representation on the lawyer's letterhead.

Does a record sealed in another state count as my one sealing?

No. FDLE says that since July 1, 2013, an earlier sealing or expunction outside Florida does not by itself disqualify a Florida application.

Can the judge still say no if FDLE approves me?

Yes. FDLE's FAQ says the certificate is not the final step, and the statutes say a request may be denied at the sole discretion of the court (ss. 943.059(4)(e), 943.0585(4)(e)).

Can several arrests be cleared together after I fix the record?

Only if the court finds the additional arrests directly relate to the original one and says so in the order (ss. 943.059(4)(c), 943.0585(4)(c)). Otherwise the relief covers one arrest or one incident.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense experience in South Florida and handles record-clearing matters in Palm Beach, Broward, Miami-Dade and Martin counties. After a denial, he starts with the reason in the letter and the certified dispositions, then looks at whether the record needs correcting, whether the law was applied correctly, and whether another statute fits better. No outcome can be promised, and every record is different. The consultation is free, and you can call (561) 362-6677 24 hours a day.

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