Domestic Violence

A domestic violence conviction can dramatically impact a person’s liberties and reputation. Therefore, in some instances, a person convicted of a domestic violence crime may seek post-conviction relief, such as asking for a plea to be vacated. In a recent Florida opinion, a court explained the procedure for filing a motion to vacate in a matter in which the defendant sought to set aside her guilty plea to battery of her 72-year-old mother. If you are charged with a crime of domestic violence, it is in your best interest to speak to a knowledgeable Tampa domestic violence defense attorney regarding your rights.

The History of the Case

It is reported that the defendant was charged with committing a crime of domestic violence against her mother in 2014. She entered a guilty plea to a lesser included charge of battery. She then spent five years trying to seal her criminal record but was unsuccessful. Subsequently, she filed a motion to set aside her plea, arguing that her attorney provided her inaccurate information regarding her ability to have her record sealed, which rendered her plea involuntary. The court granted her motion, and the State appealed, arguing that the defendant’s motion was time-barred. The appellate court agreed, reversing the lower court ruling.

Filing a Motion to Vacate in Florida

Under Florida law, a party has two years from the entry of a final judgment and sentence to file a motion to vacate. There is an exception, though, in cases in which the facts that form the basis of the motion were not available to the moving party and could not have been discovered by exercising due diligence. In such instances, the moving party must file his or her motion within two years of when the new information is discovered or reasonably would have been discovered through the exercise of due diligence.

In the subject case, the court explained that a public criminal record is a natural consequence of a criminal conviction. Thus, the defendant should have been aware of the legal impact of her guilty plea at the time she entered it. Further, the court found that the fact that the defendant was not eligible to have her records sealed pursuant to the relevant statutory law did not toll the statute of limitations, as this information was readily discoverable at the time the plea was made as well. Instead, the defendant waited over three years after her sentence was final to move to set it aside. Thus, the court reversed the trial court ruling. Continue Reading ›

If you have a criminal record with one or more convictions, it can hinder your career prospects, financial opportunities, and even ability to qualify for certain loans. Florida criminal law allows individuals, under certain circumstances, to have their criminal record sealed. A Florida court issued a decision, showing that both the applicant and the State have to follow statutory procedures before granting or denying a certificate of eligibility to seal a criminal record.In Lazard v. State, the defendant had a child in his care. During this time, the defendant struck the child with an extension cord. The State charged the defendant with aggravated child abuse, and he ultimately pled guilty to the crime of contributing to the dependency of a child, a misdemeanor. Later, the defendant made an application to the Florida Department of Law Enforcement to seal his criminal record. The FDLE denied his request because his criminal history related to an act of domestic violence, which, according to the FDLE, rendered him ineligible for sealing his record.

Florida Statutes Section 943.059 outlines the procedures for having a criminal record sealed. In short, the applicant must first receive a certificate of eligibility from the FDLE and then file a petition to seal the record with the court. The court will conduct a hearing and evaluate evidence before making its determination. By law, the FDLE is obligated to issue a certificate of eligibility if the applicant meets the statutorily defined criteria.

The court observed that although the applicant met the criteria to receive a certificate of eligibility, the FDLE did not furnish him with the certificate. Instead, the court held that the FDLE should have followed the following procedure: (i) issue the certificate because the defendant satisfied the first prong of the criminal history sealing statute, and (ii) hold an evidentiary hearing to determine whether the defendant’s offense related to an act of domestic violence, which would have acted as a basis to deny his request to seal his criminal history. The court ruled that the FDLE’s refusal to issue the certificate without an opportunity to hold an evidentiary hearing was erroneous and overturned the FDLE’s ruling.

Articles Posted in Domestic Violence

Court Discusses Post-Conviction Relief in Florida Criminal Cases

Florida Court Decision Outlines the Procedures Required to Seal Criminal Record