Simply put, no, constitutional safeguards under procedural due process requires that a Judge follow the law and cannot deny a Petition for Expungement without prior evidentiary hearing. To do otherwise, would be to act outside their scope of authority.
If the State Attorney does not file a traverse or demurrer regarding said Petition pursuant to Rule 3.692 (b); and if the Court does not receive any evidence on any issue of fact necessary to the decision regarding the Petition, the Petition should be granted because there is no legal mechanism to do otherwise.
When a petition for expunction meets the pre-requisites as defined by Florida Statute § 943.0585 and Florida Rules of Criminal Procedure 3.692, the court must afford the petitioner a meaningful hearing. Wells v. State, 807 So.2d 206, 207 (Fla. 5th DCA 2002) (citing Smith v. State, 614 So.2d 525, 528 (Fla. 5th DCA 1993)).
Once all the requirements of the statutes and rules have been met, the petitioner is presumptively entitled to an order to seal the court records. See Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997). However, the granting or denial of the petition is directed to the sound discretion of the trial court which may deny the petition if there is a good reason to do so based on the facts and circumstances of the individual case. Id. See also Orozco v. State, 920 So.2d 208, 209 (Fla. 4th DCA 2006) (having complied with requirements of petition to seal, defendant was presumptively entitled to order sealing records absent finding by trial court that there was a good reason for denial based on facts and circumstances of case). In exercising its discretion, the court must consider all facts and circumstances before making its decision. See Godoy v. State, 845 So.2d 1016, 1017 (Fla. 3d DCA 2003).
In Kanji v. State, 4 So.3d 65, (Fla. 5th DCA 2009), Mr. Kanji was arrested for a felony in Orange County, Florida. The State subsequently filed a Notice of No Information. The Notice recited that “evidence submitted by law enforcement agency insufficient to prove guilt beyond a reasonable doubt.” In December 2007, Kanji filed his petition seeking to expunge his non-judicial criminal history records and the official court records relating to his arrest. As required by section 943.0585 and Rule 3.692, the petition was accompanied by a certificate of eligibility for expunction issued by Florida Department of Law Enforcement. The State filed a response in opposition to the petition and requested a hearing. At the hearing, the State presented the trial court with arrest affidavits and argued that the public interest would not be served by granting Kanji’s petition. The trial court took the matter under advisement. Shortly thereafter, the trial court rendered an order which simply stated: “The Petition to Expunge Records is hereby denied.”
In Kanji, the appellate court held that although section 943.0585 provides that “any request for expunction of a criminal history record may be denied at the sole discretion of the court,” Florida courts have consistently held that such discretion is not unfettered. See, e.g., S.L.P. v. State, 949 So.2d 1150 (Fla. 3d DCA 2007); Cole v. State, 941 So.2d 549 (Fla. 1st DCA 2006); Godoy v. State, 845 So.2d 1016 (Fla. 3d DCA 2003); Oymayan v. State, 765 So.2d 812 (Fla. 1st DCA 2000); Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997). The words “sole discretion” as used in this section do not permit the arbitrary denial of expunction. Anderson, 692 So.2d at 253. In exercising its discretion, the trial court must consider all the facts and circumstances and may not deny the petition based solely on the nature of the crime. See Cole; Godoy; Oymayan; Anderson.
Other Florida Courts have similarly held that it is an abuse of discretion to deny a petition to seal criminal record based purely on “nature of offense and totality of circumstances” and that when a trial court fails to specify such, it is not a legally sufficient reason to deny petition. See M.N. v. State, Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2010-AP-12. L.C. Case No 2007-MM-9065. April 25, 2011. (where order read: “Based upon the nature of the offense and the totality of the circumstances, the Court exercises its discretion and Denies the Defendant’s Petition to Seal.”).
Simply because a trial court has statutory authority to “exercise its discretion” does not in and of itself allow the denial of a petition without a finding of good reason(s) based on evidence presented at a hearing. See Fisher v. State, 20 So.3d 1032 (Fla. 2d DCA 2009). Also, the order must state specifically what the reason or reasons are which support the denial. It is not enough for the order to just to say, as this one did, that it was based on “the totality of the circumstances” without specifically setting forth what those facts and circumstances were. See Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011); Harman v. State, 12 So.3d 898 (Fla. 2d DCA 2009.
It would be impossible for a trial court to set forth specific reasons for the denial if there is no evidence, testimonial or documentary, presented at the hearing. Additionally, it is well settled that the nature of the charge or offense by itself is not a legally sufficient reason to deny a petition to seal. See Kanji v. State, 4 So.3d 65(Fla. 5th DCA 2009); Godoy v. State, 845 So.2d 1016 (Fla. 3d DCA 2003); Cole v. State, 941 So.2d 549 (Fla. 1st DCA 2006).
Even if the State were to contend that the charge of misdemeanor domestic violence battery is serious, the seriousness of the offense, standing alone, is insufficient to support the denial of the petition. See Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009); see also Anderson, 692 So.2d at 254 (“[T]he exercise of discretion contemplates that the court will make its decision based on consideration of all of the facts and circumstances, rather than deciding the petition solely on the nature of the charge.”); see also Godoy v. State, 845 So.2d 1016, 1017 (Fla. 3d DCA 2003) (concluding that trial court’s denial of petition cannot be based solely on the nature of the charge). In Harman, the appellate court held that the trial court abused its discretion in denying the petition based on the seriousness of the offense even though the charge was second-degree murder. See Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009). Furthermore, in Harman, the appellate court also noted that the trial court abused its discretion in denying the petition based on the previous domestic violence offense because there was no evidence presented at the hearing to support such a finding. At said hearing, the prosecutor stated that Mr. Harman previously had been accused of domestic violence by his former wife and that his former wife alleged that Mr. Harman had threatened to kill her and had told her that he could make it look like self-defense. However, since there was no testimony or documentary evidence presented to support the prosecutor’s statements, the trial court erred in relying on the attorney’s statements to support its findings.) See Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009).
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