THE STATE OF FLORIDA, APPELLANT,
v.
SOLOMON DAVID GREENBERG, APPELLEE
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The State of Florida appealed an order expunging a defendant's 1985 criminal record for lewd and lascivious assault of a minor. The court reversed, holding that the 1988 statutory amendment prohibiting expungement of such offenses does not violate the ex post facto clause because expungement statutes are remedial and civil in nature, not punitive.
The 1988 amendment does not violate the ex post facto clause because expungement statutes are remedial and civil in nature, not punitive. Additionally, even under the 1985 statute, expungement was not available because the defendant failed to allege or establish unusual circumstances requiring extraordinary equitable powers. The 1988 amendment applies to petitions filed after its effective date.
[1] A statute prohibiting expungement of criminal records for certain offenses, enacted after the offense but before the petition for expungement, does not violate the Ex Pos…
[2] A criminal history record may be expunged only upon a specific finding by a circuit court of unusual circumstances requiring the exercise of extraordinary equitable power…
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Join FLexlaw to unlock all legal intelligence“the expungement statute as a whole is a remedial statute providing remedies which are civil in nature, and this section has already been held to apply retroactively”
Establishes that expungement statutes are civil and remedial, not punitive, and therefore not subject to ex post facto constraints.
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Join FLexlaw to unlock all legal intelligenceIn 1985, Greenberg was arrested for and pled guilty to lewd and lascivious assault of a minor under section 800.04, Florida Statutes. In 1989, after t…
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PER CURIAM.
The state appeals an order sealing and expunging defendant’s 1985 criminal record of an arrest and plea of guilty to the lewd and lascivious assault of a minor under section 800.04, Florida Statutes (1985). We reverse the order of expungement.
In 1989, the defendant filed a petition to expunge or seal his 1985 criminal history. The state objected to expungement, arguing that section 943.058(9), Florida Statutes (Supp.1988), expressly forbids expungement of a criminal record relating to a violation of section 800.04 when, as here, the victim was under age eighteen and the defendant pled or was found guilty. Nevertheless, in the instant case, the court agreed to expunge the defendant’s record, ruling that section 943.058(9) was an amendment which became effective on July 5, 1988 “subsequent to the offense date [May 1985], the conviction date and the final date of his probation, and the termination of his sentence as well, making it ex post facto.”
First, subsection (9) of section 943.058 is not ex post facto because it does not constitute “punishment.” It lacks the criminal character necessary to make it an ex post facto law in violation of the Constitution. Rather, the expungement statute as a whole is a remedial statute providing remedies which are civil in nature, and this section has already been held to apply retroactively. Capuano v. State, 347 So. 2d 629 (Fla. 4th DCA 1977).
Furthermore, the defendant had no right to expungement of the record of his May 8, 1985 arrest and subsequent conviction even under the statute in effect in 1985. Section 943.058(3), Florida Statutes (1985) provides:
[C]riminal history records ... may be ordered expunged only upon a specific finding by a circuit court of unusual circumstances requiring the exercise of the extraordinary equitable powers of the court....
The defendant did not make any allegation of unusual circumstances requiring the exercise of the court’s extraordinary equitable powers. The trial court did not find any such circumstances. Thus, even under the 1985 statute, the petition for expungement should have been denied.
Finally, the operative event, the filing of the petition, occurred one year after the 1988 amendment. The consequences of filing this petition must be determined by the provisions on the date of filing. See Zabrani v. Cowart, 502 So. 2d 1257 (Fla. 3d DCA 1986), approved, 506 So. 2d 1035 (Fla. 1987); see also Bloom v. McKnight, 502 So. 2d 422 (Fla.1987).
Accordingly, the order of expungement is reversed.
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Anderson v. State, 692 So. 2d 250 (Fla. 3d DCA 1997)…ons to grant the petition. Reversed and remanded; questions certified. . This is the version of the statute which was in effect at the time defendant filed his petition to seal, and accordingly, controls the present appeal. See State v. Greenberg, 564 So. 2d 1176, 1177 (Fla. 3d DCA 1990). . This court held in Williamson v. State, 510 So. 2d 1052 (Fla. 3d DCA 1987), that “there is no discretion in the trial court to deny a motion to seal where the defendant meets the statutory conditions precedent for sealin…
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State v. Goad, 754 So. 2d 95 (Fla. 1st DCA 2000)…ivil remedy. See also Fletcher v. State, 699 So. 2d 346, 347 (Fla. 5th DCA 1997)(holding that the Florida Sexual Predator Act is regulatory and does not “constitute punishment subject to constitutional ex post facto challenges”); State v. Greenberg, 564 So. 2d 1176 (Fla. 3d DCA 1990)(finding that the expungement statute was not an ex post facto law because it was remedial and not punitive). Whether a law is punitive or remedial is an issue that cannot be resolved solely by discerning legislative intent. If th…
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In re Est. of Norma Jean Hill v. HCA Health Servs. OF Fla., Inc., 582 So. 2d 701 (Fla. 1st DCA 1991)…e date it was made.” Zabrani v. Cowart, 502 So. 2d at 1259. The supreme court specifically approved and adopted this reasoning in Bloom v. McKnight, 502 So. 2d 422 (Fla.1987). For a similar application of this same rationale, see State v. Greenberg, 564 So. 2d 1176 (Fla. 3d DCA 1990), rev. denied, 576 So .2d 287 (Fla.1991). In accordance with the reasoning in Za-brani, we believe the operative event for the purpose of applying Rule 5.495 occurred during 1989. Just as a prisoner has no right to a judicial dete…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Iqbal Zabrani v. The Honorable Edward D. Cowart, 502 So. 2d 1257 (Fla. 3d DCA 1986)
- Bloom v. McKNIGHT, 502 So. 2d 422 (Fla. 1987)
- Iqbal Zabrani v. Cowart, 506 So. 2d 1035 (Fla. 1987)
- Capuano v. State, 347 So. 2d 629 (Fla. 4th DCA 1977)