MSF (not his real initials) was arrested on January 16, 2007, on a warrant charging domestic battery out of St. Lucie County, Florida.. He promptly retained the services of Jeffrey H. Garland to assist him in the matter. The initial investigation showed that the dispute involved a “family incident”. Defendant’s sister made a belated claim for battery. Other family members supported Defendant’s contention that it was the sister who was misbehaving. The Defendant actually sustained injury. Witnesses established that MSF was simply trying to calm the situation and prevent undue emotional distress to the children present.

The Clerk’s office set the case for a jury trial docket on March 5, 2007. Attorney Garland moved to strike the case from the jury trial docket and to charge the continuance against the State. The motion was based upon the facts that the State had not filed a formal charging document and had not responded to discovery demands. The Florida Rules of Criminal Procedure allow some misdemeanor offenses to be charged via a notice to appear or a uniform traffic citation (UTC). However, most misdemeanors do not fall into these exceptions. The exceptions apply principally to criminal traffic offenses, including DUI, DWLS, reckless driving and the like.

Every misdemeanor case is subject to a 90-day speedy trial period. This means that the State must bring the person to a jury trial within 90 days of being taken into custody, or the case is subject to: 1) dismissal, in certain circumstances and, in other circumstances, 2) a notice of expiration of the speedy trial time. In general, there is a 15-day “recapture” period for bringing an individual to trial after he gives notice of the expiration of speedy trial. There is no such exception, however, where the State has failed to file a formal charging document (an “information”) within the speedy trial period.

In this case, the defense did not wish to request a continuance at the first jury trial docket call. A request for a continuance constitutes a waiver of rights under the speedy trial rule. Florida case law authority requires the court to strike a case from an arraignment or jury trial docket where the State has failed to file a propr charging document. In addition, Florida authority permits a defendant to request a continuance chargeable to the State, where the State has failed to file a discovery response on a timely basis and, as a result, the defense cannot be ready for trial. The defense in this case was entitled to a continuance on either theory, because a formal charging document had not been filed and no discovery provided.

Upon full consideration of the case, the State elected to file a “No Information” which terminated the prosecution in favor of MSF. Upon receiving the No Information, Attorney Garland began the process of obtaining an expungement.

To obtain an expungement, an arrested person must first obtain a certificate of eligibility from the Florida Department of Law Enforcement (FDLE). An application for this certification must be sent to FDLE with a $75.00 application fee, an executed affidavit, proof of dismissal of the charges (or other indication that would support eligibility) and a fingerprint card.

FDLE took over five months to return the certificate of eligibility. Attorney Garland filed the expungement petition on December 3, 2007. The order was entered January 28, 2008.

An expungement is only available in limited circumstances. The applicant must certify that they have neither pled to, nor been convicted of, any criminal offense at any other time. The applicant must certify either that the charges were dropped (as in MSF’s case), or that adjudication of guilt was withheld, and more than 10 years have passed since the successful termination of probation or completion of sentence. There is a separate process for expunging arrests which were improperly made or made in violation of the Constitution. This alternative procedure is little used, but is available for those whose prior record may make them ineligible for the usual expungement process.