Opinion
No. 91-03901.
June 2, 1993. Rehearing Denied August 17, 1993.
Appeal from the Circuit Court, Hillsborough County, Edward H. Ward, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellant.
No appearance by appellee.
The state challenges the trial court's order sealing appellee's court records and criminal history records concerning offenses to which appellee had pled nolo contendere in 1987. We affirm in part and reverse in part.
We agree with the state that the order regarding appellee's court or judicial records failed to include the necessary constitutional findings to justify sealing. State v. P.D.A., 618 So.2d 282 (Fla. 2d DCA 1993) (on motion for clarification).
However, regarding appellee's nonjudicial criminal records, we do not agree with the state that the order was overly broad. The state, relying upon the definition of criminal history information in section 943.045(4), takes the position that only "rap sheets" constitute nonjudicial records subject to sealing under section 943.058. Thus, according to the state, records such as police reports, affidavits, and witness statements should not be sealed. We disagree because the broad language of 943.058(2) states that "the courts may order the sealing or expunction of any other criminal history record." (Emphasis added.)
Affirmed as to nonjudicial criminal records, reversed as to judicial records, and remanded for proceedings consistent herewith.
DANAHY, A.C.J., and SCHEB, JOHN M., Senior Judge, concur.
ALTENBERND, J., concurs specially.
I concur in this decision because of our recent en banc opinion in State v. P.D.A., 618 So.2d 282 (Fla. 2d DCA 1993). The constitutional analysis addressed in the "majority's" opinion in P.D.A. was approved by only six judges. Thus, this panel is not bound by that analysis. Nevertheless, I believe Judge Blue's special concurrence effectively established a holding by a seven-judge majority which requires findings by the trial court in orders sealing such criminal court records. Our result today is compelled by the rule established in that special concurrence.
Even under the analysis suggested by my separate opinion in P.D.A., this case would probably warrant reversal. See 618 So.2d at 285 (Altenbernd, J., concurring in part and dissenting in part). The defendant pleaded nolo contendere to three significant drug charges in 1988, when he was approximately thirty years old. His scoresheet at that sentencing indicates a prior third-degree felony. The defendant wants his records sealed so he can attend nursing school and obtain a license as a nurse. The defendant did not personally appear before this trial judge and provided no evidence that he has permanently overcome his problem with drugs. Under even a common law standard for expunction, a trial court should require more extensive evidence before it seals drug offenses to allow a person to pursue such a licensed profession.