DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NELSA MCGANN GREY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-2473
[April 27, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Matthew I. Destry, Judge; L.T. Case No. 11-
17636CF10A.
Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
Appellant, Nelsa McGann Grey, appeals the trial court’s order denying
her petition to seal her criminal record. The State concedes error pursuant
to our recent decision in Gotowala v. State,
184 So. 3d 568 (Fla. 4th DCA
2016). Accordingly, we reverse.
After initially being charged with one offense, Appellant negotiated a
plea with the State and pleaded no contest to a lesser offense. The court
accepted Appellant’s plea, withheld adjudication, and sentenced her to one
year of probation. After serving her sentence, Appellant petitioned to seal
her criminal record. In support of her petition, Appellant submitted an
affidavit as well as a certificate of eligibility for the Florida Department of
Law Enforcement. Without conducting a hearing, the court entered an
order denying Appellant’s petition on the grounds that “the conduct
detailed in the Probable Cause Affidavit evidences a sophisticated criminal
course of conduct that if hidden from the view of ordinary citizens would
deprive them of information essential to appropriately guard against a
threat to their security.”
Thereafter, Appellant filed a “Renewed Petition to Seal Case-File” in
which she alleged that she was innocent of the underlying offense and
submitted evidence supporting her position. At the hearing on Appellant’s
renewed petition, the State informed the court it was not objecting to
Appellant’s request. Appellant made a brief statement on her own behalf,
explaining that she pleaded no contest to a reduced charge in order to
resolve the matter in an expedient fashion and that her record was
preventing her from obtaining employment. The court refused to consider
Appellant’s position and denied her petition based on the nature of the
initial charge and the corresponding probable cause affidavit. This appeal
follows.
The sealing of a criminal history is governed by section 943.059 of the
Florida Statutes, and Florida Rule of Criminal Procedure 3.692(a)(1). If a
petitioner satisfies the requirements of section 943.059 and Rule
3.692(a)(1), the petitioner is “presumptively entitled to an order to seal or
expunge court records.” Anderson v. State,
692 So. 2d 250, 252 (Fla. 3d
DCA 1997). While the decision to seal a record is in the trial judge’s “sole
discretion,” the exercise of discretion requires “good reason based on [the]
facts and circumstances of [the petitioner’s] individual case.” Shanks v.
State,
82 So. 3d 1226, 1227 (Fla. 1st DCA 2012). Here, there is no dispute
that Appellant met the prerequisites for obtaining an order sealing her
record. Thus, the question is whether the court had “good reason based
on the facts and circumstances” of Appellant’s case to deny her petition.
In Gotowala v. State,
184 So. 3d 568 (Fla. 4th DCA 2016), the presiding
judge denied a petitioner’s request to seal his criminal record although the
petitioner satisfied the statutory requirements of section 943.059 and Rule
3.692.
Id. at 569. In doing so, the court relied on the facts laid out in the
arresting officer’s probable cause affidavit and based on those facts, ruled
that sealing the petitioner’s record would “‘pose[] a danger to the citizens
of Broward County and the general public.’”
Id. We reversed, holding that:
[T]he lower court’s mere reliance on the facts as laid out in a
probable cause affidavit does not show “the court ma[d]e its
decision based on consideration of all the facts and
circumstances” of [petitioner’s] case. Moreover, the court’s
order does not indicate the specific facts that led it to conclude
that sealing [petitioner’s] records would pose a danger to
public safety.
Id. at 570 (citation omitted).
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Gotowala establishes that a court may not deny a petition to seal a
criminal record based solely upon its consideration of the facts as outlined
in the probable cause affidavit. Rather, the court must consider the facts
actually established in the petitioner’s case.
In this case, the court relied solely upon the probable cause affidavit as
the basis to deny Appellant’s motion. Accordingly, we reverse and remand
with instructions to conduct an evidentiary hearing and enter a sufficient
order.
Reversed and remanded for further proceedings consistent with this
opinion.
GROSS and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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