Petition for Writ of Mandamus- Florida Department of Law Enforcement

Petition for Writ of Mandamus- Florida Department of Law Enforcement

150 150 Steven Sessa

PETITION FOR WRIT OF MANDAMUS

Petitioner, M.G., sues Respondent, the STATE OF FLORIDA, FLORIDA DEPARTMENT OF LAW ENFORCEMENT, and files this Petition for Writ of Mandamus. In support thereof, Petitioner alleges as follows:

Introduction

1. This is an action seeking a writ of mandamus to compel the Florida Department of Law Enforcement (hereinafter referred to as “FDLE”) to issue to Petitioner a Certificate of Eligibility to Petition for a Seal or Expunge Order.

2. On or about November 15, 2015, Petitioner was arrested by the Broward County Sheriff’s Office in connection with an alleged incident of Aggravated Assault with a Deadly Weapon (F2).

3. The incident arose after Petitioner called police to report that he had observed multiple individuals, dressed in black and camouflage, trespassing in the woods behind his residence. Petitioner further reported that the individuals were possibly armed.

4. As police walked into the woods to investigate, Petitioner, who holds a valid concealed carry permit, observed one of the individuals walking towards him and carrying what appeared to be a pistol.

5. In response to the perceived threat, Petitioner drew a firearm from a lawfully worn holster and, according to the Arrest and Booking Report, was overheard by police instructing the individual to “freeze.” A copy of the Arrest and Booking Report is attached hereto as Exhibit A.

6. Police later determined that the individual involved in the incident was in fact carrying an ‘Airsoft’ pistol.

7. Petitioner had no criminal history of any kind prior to this incident.

8. Based on substantial evidence that Petitioner acted defensively in response to a perceived imminent threat posed by an apparent handgun, the Office of the State Attorney, in Case Number 2015-CF-XXX, Fourth Judicial Circuit, Broward County, dropped its felony prosecution for Aggravated Assault with a Deadly Weapon. A copy of the disposition in Case Number 2015-CF-XXX is attached hereto as Exhibit B.

9. Petitioner was never charged by Information with Aggravated Assault.

10. In exchange for the dropped felony, and to avoid the risk of contesting a charge that would potentially carry a minimum mandatory prison sentence, Petitioner, in Case Number 2016-MM-XXX, agreed to enter a plea to a single misdemeanor count of Improper Exhibition of a Firearm or Dangerous Weapon (M1). A copy of the Judgment and Sentence in Case Number 2016-MM-XXX is attached hereto as Exhibit C.

11. On or about August 29, 2016, Petitioner submitted to FDLE an Application for Certification of Eligibility to seal his criminal history record in the above-referenced matters.

12. On March 31, 2017, FDLE mailed to Petitioner a written denial of Petitioner’s Application. Citing to the provisions of § 943.059, Florida Statutes (2016), FDLE advised that a Certificate of Eligibility would not be issued because “[t]he criminal history record to which the application pertains relates to a violation . . . enumerated in s. 907.041.”

13. § 907.041 includes aggravated assault as a listed offense, but does not include Improper Exhibition.

14. FDLE further alleged that Petitioner “was found guilty of or pled guilty or nolo contendere” to the following: “**11-15-2015 – AGGRAVATED ASSAULT REDUCED TO IMPROPER EXHIBITION OF A WEAPON – CLAY COUNTY.” A copy of FDLE’s March 31, 2017 letter of denial is attached hereto as Exhibit D.

15. Petitioner contends that FDLE’s decision is in legal error and that, by denying Petitioner a Certificate of Eligibility, FDLE has substantially harmed Petitioner and failed to perform an administrative or ministerial function in accordance with legal duties and procedures.

16. Specifically, but without limitation, Petitioner alleges the following:

a. FDLE’s denial of a Certificate of Eligibility on grounds that Petitioner’s case “relates” to an excluded offense constitutes procedural error and an unlawful exercise of FDLE’s authority. FDLE is not empowered under § 943.059 to consider such a factor as a criterion for issuance of a Certificate of Eligibility to seal a criminal record. Petitioner has satisfied all statutory requirements for issuance and, to the extent that legal issues remain as to whether Petitioner’s case “relates” to an excluded offense, the record sealing statute empowers the Court, not FDLE, to address those issues;

b. Even assuming, arguendo, that FDLE possesses the authority to deny issuance of a Certificate on grounds that Petitioner’s case “relates” to an excluded offense, the denial is in legal error inasmuch as the offense to which defendant pled does not fall within the exclusionary language of § 943.059. A record that “relates” to a violation of § 907.041 is only excludable from the record sealing statute where a defendant is “found guilty of or pleads guilty or nolo contendere to the offense.” Petitioner was not found guilty of, and did not plead guilty or nolo contendere to the offense at issue (i.e. aggravated assault).

c. The charge of Improper Exhibition is legally and factually distinct from Aggravated Assault, and the charge to which Petitioner pled is not sufficiently “related” so as to impose a statutory bar to sealing Petitioner’s record.

d. To the extent that the language of § 943.059 is susceptible to differing interpretations, the statute should be construed in favor of Petitioner. State v. Byars, 823 So.2d 740, 742 (Fla.2002).

17. But for FDLE’s denial of the Certificate, Petitioner would otherwise be eligible to pursue the sealing of the subject record.

18. Petitioner has no other adequate remedy at law.

Jurisdiction

19. This Court has jurisdiction under Art. V, Sec. 5(b) of the Florida Constitution, § 943.059, Florida Statutes (2016), and Rowell v. State of Florida, Florida Dep’t of Law Enforcement, 700 So. 2d 1242 (Fla. 2d DCA 1997).
Parties

20. Petitioner, M.G., is a resident of the State of Florida and the subject of the criminal history record described herein.

21. Respondent, FLORIDA DEPARTMENT OF LAW ENFORCEMENT, is a State of Florida government agency, which, under § 943.059, Florida Statutes (2016), is assigned administrative duties and responsibilities for the issuance of Certificates of Eligibility to seal criminal history records.

Applicable Law

22. “Mandamus is a recognized remedy to require a public official, who is clothed with the authority, to discharge his duty.” Dante v. Ryan, 979 So. 2d 1122, 1123 (Fla. 3d DCA 2008); Browning v. Young, 993 So. 2d 64, 65 (Fla. 1st DCA 2008) (stating that mandamus is a civil remedy to compel a public official to discharge a ministerial duty); Fair v. Davis, 283 So. 2d 377, 378 (Fla. 1st DCA 1973) (“mandamus is a remedy by which administrative officials or agencies may be coerced to perform ministerial duties which they have a clear legal duty to perform”).

23. Mandamus is a proper remedy where the Florida Department of Law Enforcement has failed to comply with a legislative mandate to perform a ministerial act. Rowell, 700 So. 2d at 1243-44.

24. The court-ordered sealing of criminal history records in Florida is governed by § 943.059, Florida Statutes (2016). In order to seal a record, a petitioner must comply with applicable procedures and meet all eligibility requirements outlined in the statute. Id. § 943.059(1).

25. A petition to seal a criminal history record cannot be granted by a court unless the petitioner first obtains from the Florida Department of Law Enforcement (FDLE) a valid “certificate of eligibility.” Id. § 943.059(2); State v. D.H.W., 686 So. 2d 1331, 1334-35 (Fla. 1996).

26. The introductory paragraph of § 943.059 specifically provides:

The court shall not order a criminal justice agency to seal a criminal history record until the person seeking to seal a criminal history record has applied for and received a certificate of eligibility for sealing pursuant to subsection (2)

Id. (emphasis added).

27. § 943.059(2), Florida Statutes (2016), outlines six (6) criteria that FDLE may examine in determining whether to issue a certificate of eligibility to seal a criminal record. The statute provides, in pertinent part, as follows:

The department [FDLE] shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:

(a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.

(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.

(c) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).

(d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.

(e) Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.0585, former s. 893.14, former s. 901.33, or former s. 943.058.

(f) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to seal pertains.

Id. § 943.059(2)(a)-(f) (emphasis added). See A.J.M. v. Florida Department of Law Enforcement, 15 So. 3d 707, 709 (Fla. 3d DCA 2009) (referring to the subsections of § 943.059(2) as the “criteria” relevant to FDLE’s issuance of a certificate).

28. In State v. D.H.W., 686 So. 2d 1331 (Fla. 1996), the Florida Supreme Court specifically addressed the criteria that, under § 943.059, must be met in order to obtain the issuance of a certificate to seal a record, explaining:

To obtain a certificate and complete a petition for the sealing of a criminal history record held in nonjudicial agencies, a petitioner must demonstrate to FDLE that the petitioner: (1) has never previously been adjudicated guilty of a criminal offense or comparable ordinance violation; (2) has not been adjudicated guilty of any of the charges stemming from the arrest or alleged criminal activity to which the petition to seal pertains; (3) has never secured a prior sealing or expunction of a criminal history record; and (4) is no longer under court supervision relating to the disposition of the arrest or alleged criminal activity to which the petition to seal pertains.

Id. at 1334-35.

29. While upholding the constitutionality of § 943.059 and recognizing the requirement of a certificate of eligibility as a valid legislative prerogative, D.H.W. emphasized the continuing responsibility of courts in Florida “to safeguard a citizen’s right to strict enforcement of the statute . . .” Id. (emphasis added).

30. The statutory criteria applicable to the issuance of a certificate of eligibility to seal a record are distinct from the criteria applicable in expungement cases. With regard to expungements, Florida Statutes § 943.0585 provides as follows:

The department shall issue a certificate of eligibility for expunction to a person who is the subject of a criminal history record if that person:

(a) Has obtained, and submitted to the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which indicates:

1. That an indictment, information, or other charging document was not filed or issued in the case.
2. That an indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi. . .
3. That the criminal history record does not relate to . . . a violation enumerated in s. 907.041 . . . where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense, or that the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, such an offense as a delinquent act, without regard to whether adjudication was withheld.
(b) Remits a $75 processing fee . . .
(c) Has submitted to the department a certified copy of the disposition of the charge to which the petition to expunge pertains. . .
(d) Has never . . . been adjudicated guilty of a criminal offense . . .
(e) Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest . . .
(f) Has never secured a prior sealing or expunction . . .
(g) Is no longer under court supervision . . .
(h) Has previously obtained a court order sealing the record . . .

Id. § 943.0585(2)(a)-(h) (emphasis added).

31. Thus, in cases involving expungements, whether an offense falls within the excluded class of crimes outlined § 907.041 is a permissible criterion for FDLE to examine in deciding whether to issue a certificate of eligibility. Id. § 943.0585(2)(a)(3).

32. In cases involving the sealing of records, however, no such criterion is listed for FDLE to consider. See § 943.059(a)-(f). Instead, the reference to excluded crimes under § 907.041 occurs in the introductory paragraph of § 943.059, a section of the record sealing statute addressing the powers and responsibilities of the court, not FDLE. As interpreted by the Third District Court of Appeal in A.J.M., the introductory paragraph of § 943.059 “[d]oes not relate to the Department’s [FDLE’s] authority to issue a certificate of eligibility.” A.J.M., 15 So. 3d at 710.

33. Where a provision of a statute is clear and unambiguous, Courts “will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005); See Knox v. Adventist Health Sys./Sunbelt, Inc., 817 So.2d 961, 962 (Fla.5th DCA 2002) (recognizing that when a statute is clear and unambiguous, a court may not resort to rules of statutory construction, and the “statute must be given its plain and obvious meaning”).

34. In addition to requiring a certificate of eligibility, § 943.059 prohibits the sealing of a criminal history record if the offense to which a defendant pled falls within a proscribed category of crimes specifically outlined in the statute. § 943.059 states, in pertinent part:

Any court of competent jurisdiction may order a criminal justice agency to seal the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to seal a criminal history record until the person seeking to seal a criminal history record has applied for and received a certificate of eligibility for sealing pursuant to subsection (2). A criminal history record that relates to . . . a violation enumerated in s. 907.041 . . . may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense (emphasis added).

35. § 907.041, Florida Statutes (2016), is the pretrial detention statute. It contains a listing of “dangerous crimes,” and, among other provisions, restricts the use of non-monetary pre-trial release for defendants charged with such offenses. Id. § 907.041(4)(a).

36. Among the enumerated “dangerous crimes” is “Aggravated assault.” Id. § 907.041(4)(a)(2).

37. In determining whether a defendant is barred from sealing a record because of a violation enumerated in § 907.041,” “[t]he question is whether the defendant’s crime is among those for which expungement is prohibited.” Williams v. State, 879 So. 2d 77 (Fla. 3d DCA 2004) (emphasis added). Unless a defendant is “found guilty of or pled guilty or nolo contendere to the offense” at issue, the statute will not bar a defendant from sealing his or her record. J.A.H. v. State, No. 4D16-1327, p.4 (Fla. 4th DCA; July 13, 2016).

38. In Williams, a defendant pled guilty to domestic battery and false imprisonment, and thereafter received a withhold of adjudication on both charges. Id. at 78. Following completion of probation, the defendant applied to the Florida Department of Law Enforcement for a certificate of eligibility. FDLE denied the application on grounds that domestic violence cases were statutorily ineligible for expunction under § 943.0585, Florida Statutes. Id.

39. While upholding the trial court’s ruling that domestic violence cases were statutorily ineligible, the Third District Court of Appeal outlined the analysis applicable to cases involving offenses listed § 907.041, stating:

The question is whether the defendant’s crime is among those for which for which expungement is prohibited. The relevant part of the statute allows expungement if it is determined:

3. That the criminal history record does not relate to . . . a violation enumerated in s. 907.041 where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense . . . without regard to whether adjudication was withheld.

Id. at 79 (citing § 943.0585(2)(a)(3)) (emphasis added).

40. Williams further observed that the offenses outlined in § 907.041 constituted a listing of the specific offenses intended by the legislature for exclusion or ineligibility, stating, in pertinent part:

It is the Legislature’s prerogative to prohibit expungement for specific crimes if it wishes to do so. The legislature has enumerated its list of prohibited crimes subparagraph 943.0585(2)(a)(3), Florida Statutes, and the defendant’s crimes are among those for which expungement is prohibited.

Id. at 79.

41. In J.A.H., a defendant was arrested and charged by information with one count of trafficking in oxycodone and one count of withholding information from a practitioner (doctor shopping). J.A.H. v. State, No. 4D16-1327, p.2 (Fla. 4th DCA; July 13, 2016). Under § 943.059, trafficking in a controlled substance is an excluded offense, which creates a statutory bar to sealing for cases that result in a plea or finding of guilt. Id.

42. Later in the criminal case, the State of Florida entered a nolle prosequi to the trafficking count in exchange for a plea to the related charge of doctor shopping. Id. The defendant received a withhold of adjudication and was placed on probation. Id.

43. After completing his probationary sentence, the defendant filed with FDLE an application to seal the subject criminal record. Id. Despite the original charge of trafficking (an excluded offense under Section 943.059), FDLE nonetheless issued a certificate of eligibility. Id.

44. At hearing on the Petition to Seal, the State of Florida objected, arguing that the defendant was barred from sealing his record because the case was originally brought on the basis of a trafficking charge. Id. Since the charge to which the defendant pled related to the previously alleged trafficking, the State contended that the subject record could not be sealed. Id. The trial court agreed and denied the petition.

45. On appeal, the Fourth District rejected the State’s “erroneous argument” that a defendant can be barred from sealing a record because the case at one time involved a higher charge that, in the absence of a dismissal or reduction, would not have been sealable under § 943.059. Id. at 4. As explained by the Court:

Although J.A.H. was initially charged with trafficking in oxycodone, under section 893.135, that count was nolle prossed by the State, and therefore does not fit the statutory bar since J.A.H. was not “found guilty of or pled guilty or nolo contendere to the offense.” We agree with J.A.H. that the State’s argument was an inaccurate application of the statute.

Id.

Application to the Present Case

46. In the instant case, Petitioner applied with FDLE for a certificate of eligibility to seal his record pursuant to § 943.059, Florida Statutes (2016).

47. The criteria FDLE was statutorily authorized to consider in processing Petitioner’s record sealing application are contained in § 943.059(2), a provision entitled “Certificate of Eligibility for Sealing.”

48. The statute contains six (6) specifically enumerated criteria, all of which are met by Petitioner. Petitioner paid his $75.00 processing fee, has properly submitted a copy of the disposition, has never been adjudicated guilty of any criminal offense or comparable ordinance violation, was not adjudicated guilty of any of the acts to which his application or petition pertains, has never previously sealed or expunged a record, and is no longer subject to Court supervision.
49. Since Petitioner meets all listed criteria, § 943.059(2) provides that FDLE “shall” issue a certificate of eligibility.

50. Unlike § 943.0585, Florida’s expunction statute, § 943.059(2) does not authorize FDLE, in deciding whether to issue a certificate of eligibility, to consider the alleged relation of the criminal history record to a potentially excluded offense.

51. As demonstrated above, the authority to consider “related” offenses is contained in the introductory paragraph of § 943.059, a provision, which “[d]oes not relate to the Department’s [FDLE’s] authority to issue a certificate of eligibility.” A.J.M., 15 So. 3d at 710.

52. The introductory paragraph instead confers authority on the Court. Id.

53. On this basis alone, FDLE’s decision to deny Petitioner a Certificate of Eligibility constitutes procedural and legal error, which would entitle Petitioner to the relief requested herein. It is within the power of the Court, not FDLE, to deny a Petition to Seal upon making a legal finding that the case at issue “relates” to an excluded offense within the meaning of § 943.059.

54. Even assuming, arguendo, that FDLE possesses the statutory authority to deny Petitioner on the grounds stated, its denial is nonetheless in error because it is based on a demonstrably incorrect reading of the record-sealing statute.

55. The provision at issue in § 943.059 reads as follows:

A criminal history record that relates to . . . a violation enumerated in s. 907.041 . . . may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense (emphasis added).

56. By the plain language of § 943.059, the statutory bar to sealing a record becomes operative only “if” a finding of guilt is made or a plea is entered to “the offense” at issue.

57. Since a defendant cannot enter a plea to a ‘criminal history record,’ the term “offense” can only logically refer to the offenses enumerated in § 907.041 (i.e. aggravated assault).

58. For this reason, appellate courts in Florida have determined that, in applying the statutory bar at issue in the present case, “the question is whether the defendant’s crime is among those for which for which expungement is prohibited.” Williams, 879 So. 2d at 79; See J.A.H. v. State, No. 4D16-1327, p.4 (Fla. 4th DCA; July 13, 2016) (stating that a dropped felony trafficking charge would not create a statutory bar to sealing a record because, despite the defendant’s plea to a less serious and related charge, the defendant was not found guilty of and did not plea “to the offense” excluded by statute).

59. Contrary to the plain language of § 943.059, and contrary to the above-referenced case authorities, FDLE appears to take the position that a defendant can be barred from sealing a record because the case, at an earlier time, included a higher, unproven charge that, in the absence of a dismissal or reduction, would not have been sealable under § 943.059.

60. In other words, if a defendant was originally charged with or accused of a higher excluded offense, then any plea entered to any reduced or amended charge will automatically create a statutory bar to sealing the record. This would apparently be true, as in the present case, even if the excluded offense was dropped, even if the offense was never proven and never admitted to, even if the allegations were unsubstantiated, and even if the defendant was innocent of the alleged offense.

61. FDLE’s legal position is the precise argument rejected in J.A.H. as “erroneous” and “an inaccurate application of the statute.” J.A.H. v. State, No. 4D16-1327, p.4 (Fla. 4th DCA; July 13, 2016). There, the State of Florida entered a nolle prosequi to the charge of trafficking in exchange for the defendant entering a plea to a related charge of ‘doctor shopping.’ The Fourth District concluded that the plea to the less serious charge would not prohibit the sealing of the subject record because the defendant did not plead to the excludable offense. Id.

62. Even if, as FDLE argues, a dropped aggravated assault may be still be considered for purposes of applying the exclusions of § 943.059, the offense to which Petitioner pled in his separate misdemeanor case (Improper Exhibition) is not sufficiently “related” to aggravated assault so as to create a bar to eligibility.

63. Although originally accused of Aggravated Assault with a Deadly Weapon, this charge was dismissed by the Office of the State Attorney with no Information being filed.

64. Without admitting or conceding any intentional threat, without admitting or conceding any ability to carry out a threat, and without admitting or conceding any well-founded fear of imminent violence in the mind of any alleged victim, Petitioner entered a plea in a separate County Court case to Improper Exhibition, a first-degree misdemeanor under § 790.10, Florida Statutes (2016).

65. The offense of Improper Exhibition can be established with factual elements as simple and innocuous as: (i) the defendant had a weapon; (ii) the defendant exhibited the weapon in a careless manner; and (iii) he/she did so in the presence of another person. Fla. Std. Jury Instr. (Crim) 10.5 (Improper Exhibition); § 790.10, Fla. Stat.

66. Unlike Aggravated Assault, there is no intent to threaten violence, no appearance of carrying out a threat, and no creation of well-founded fear of imminent violence. See Fla. Std. Jury Instr. (Crim) 8.2 (Aggravated Assault).
67. Improper Exhibition is therefore factually and legally distinct so as not to be “related” to Aggravated Assault within the meaning of § 943.059.

68. To the extent that § 943.059 is susceptible to differing interpretations, the statute should be construed in favor of Petitioner.

WHEREFORE, Petitioner, M.G., respectfully requests that this Court enter an Order granting the requested relief of:

A. an order to show cause or alternative writ of mandamus, consistent with Rule 1.630, Florida Rules of Civil Procedure;
B. setting a hearing date;
C. requiring the Florida Department of Law Enforcement to issue to Petitioner a Certificate of Eligibility;
D. granting any such other relief as the Court deems appropriate.

[Exhibits and signature omitted]