Understanding Florida's Expunction Statute
(Fla. Stat. § 943.0585)

(Last Updated: Friday, August 26, 2022)

For most first‑time arrestees in Florida who have received a favorable outcome in their case (i.e., a dismissal, nolle prosequi, or not‑guilty bench or jury verdict), securing an expunction is a relatively easy process. The application can be filed by the arrestee's attorney‑of‑record, or even pro se, and requires a few very nominal processing fees.

Once the Circuit Court judge signs the Order, the Clerk of Courts will direct the Sheriff's Office, the State Attorney's Office, and the Florida Department of Law Enforcement (FDLE) to seal any evidence in their possession of the arrest and subsequent criminal proceedings. That is the good news. The bad news is that the Order has absolutely no force or effect on privately held media companies that publish booking information such as the Miami Herald, the Fort Lauderdale Sun‑Sentinel, the Tampa Tribune, Mugshots.com, SouthFloridaRecords.com, Yakbatfox.com, or Arrests.Org.

These entities are still permitted by the First Amendment of the Constitutions of both the United States and the State of Florida to display your arrest booking photograph and the written details of the incident as described in the police probable cause affidavit. In Florida, those rights to publish are codified in Fla. Stat. § 119.07, which specifically allows for the copying and inspection of any public record in the Sunshine State.

A civil complaint that seeks to enjoin one of these private entities from continuing to display your expunged arrest record would be foolhardy and it most likely will conclude with an award of both court costs and attorney's fees in favor of the Defendants. It likely also would result in other sanctions against your legal counsel as permitted under Fla. Stat. § 57.105 ("Attorney's fee; sanctions for raising unsupported claims or defenses").

But most damningly, a civil complaint that seeks to enjoin continued publication by a private media company of expunged arrest records instantly would create even more publicity of the arrest in the form of another public record. Then there are the financial costs. The filing fee in any Circuit Court in Florida presently is a whopping $401. Then there are fees for court‑reporters, transcripts, mediators, and so on. That is not to mention the cost of hiring an attorney, which likely will range anywhere from a few hundred bucks up to $1,000 per hour.

Of course, any Florida attorney who encourages you to move forward with such a civil complaint will not be very competent in the first place, and if there is one thing the Sunshine State has an overabundance of, it's inept attorneys in private practice. What legal theory or cause of action could a Florida attorney conceivably proffer against a private media company?

Defamation? Hardly. This matter was addressed in Martin v. Hearst Corp., 777 F.3d 546, 551 (2d Cir. 2015), in which the appellate Court wrote that the expungement statute "creates legal fictions, but it does not and cannot undo historical facts or convert once‑true facts into falsehoods. The statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested."

It is well‑settled in Florida that a false statement of fact is the sine qua non for recovery in a defamation action. Byrd v. Hustler Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4th DCA 1983).

False Light? Nope. The Sunshine State does not recognize false light as a cause of action, as explained by the Florida Supreme Court in Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008): "Because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment, we decline to recognize the tort."

Intentional Infliction Of Emotional Distress? No chance. This cause of action in Florida requires that the judiciary's "impact rule" has been met or that a close personal relationship exists between the petitioner and respondent. So unless the news editor of the Miami Herald, for one example, published the arrest report from your recent detainment and then came to your house and punched you in the face, you have no legal standing to bring an IIED claim. Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002).

Thing is, even if one of these three aforementioned causes of action were applicable based on publication of your expunged arrest record, it likely would require three or four years' time for the entire process to play out ‑‑ a process that will (or could) include: filing and serving the complaint; hearings on seemingly innumerable Motions To Dismiss, Motions To Strike, Motions For Judgment On The Pleadings, and Motions For Summary Judgment from the Defendants; discovery; at least one mediation session that invariably will be required by the judge's Uniform Trial Order; a two‑ or three‑day trial; hearings on post‑verdict Motions; and any appeals to either the District Court of Appeal or the Florida Supreme Court.

That is three or four years during which your arrest booking photograph and the written details from the probable cause affidavit will remain online. Remember, your chances at a temporary injunction are non‑existent, chiefly because Florida's courts have found such an extreme measure to be a "a classic example of prior restraint on speech triggering First Amendment concerns." Moore v. City Dry Cleaners & Laundry, 41 So. 2d 865, 873 (Fla. 1949).

So, in contrast to the arduous, expensive, and impossible process of asking a court to force the removal of your arrest record from a privately owned website, one phone call to the office of Goodman & Baxter could make your problems disappear within a matter of a few hours.

The choice is yours.