       Third District Court of Appeal
                                State of Florida

                           Opinion filed August 15, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D17-1651
                          Lower Tribunal No. 15-10355
                              ________________

        The State of Florida Department of Law Enforcement,
                                     Petitioner,

                                         vs.

                                  Diana Elmufdi,
                                   Respondent.

     A Writ of Certiorari to the Circuit Court for Miami-Dade County, Diane V.
Ward, Judge.

      Pamela Jo Bondi, Attorney General, and Carrol Y. Cherry Eaton, Senior
Assistant Attorney General (Ft. Lauderdale), for petitioner.

      Schwartz & Associates, and Jonathan S. Schwartz and Alina Morhaim, for
respondent.

Before EMAS, FERNANDEZ and LUCK, JJ.

      FERNANDEZ, J.

      The State of Florida Department of Law Enforcement (FDLE) petitions this

Court for writ of certiorari to review the trial court’s order compelling FDLE to
issue respondent Diana Elmufdi a certificate of eligibility for sealing. We agree

with FDLE that the trial court’s order granting respondent’s motion to compel was

a departure from the essential requirements of the law resulting in material injury

that cannot be remedied on appeal. We thus grant the petition.

      On May 19, 2015, respondent was arrested and charged with third-degree

grand theft in Miami-Dade County, Florida. On March 25, 2016, respondent

applied in the Miami-Dade case for a certificate of eligibility to seal her criminal

history record with FDLE. FDLE notified respondent via letter dated August 16,

2016, that her application was denied because she failed to meet the statutory

criteria to be eligible for sealing, as respondent had previously secured an

expunction by the Broward County Circuit Court in a previous case on October 26,

2008. In that case, respondent had been arrested on July 12, 2006, and charged

with petit theft. On November 12, 2015, respondent filed a motion to unseal the

expunged record in the Broward case. The Broward Court granted the motion on

November 20, 2015.

      On September 13, 2016, even though FDLE had previously notified her it

was denying her request for the certificate of eligibility, respondent filed in the

Miami-Dade case a petition to seal criminal history record. Respondent stated in

her petition that she had a sealed case in Broward County, but that this prior sealed

case had been unsealed by order of the Broward County court. Thus, respondent



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argued, this could not be counted as a prior expunction or sealing of a criminal

history record. The Miami-Dade County trial court held a hearing and granted

respondent’s petition to seal her criminal history record on November 1, 2016.

       However, FDLE wrote a letter dated December 5, 2016, whereby it returned

the trial court’s order to seal the criminal history record, pursuant to section

943.059(3)(d), Florida Statutes (2017), to the trial court, the state attorney on the

case, and respondent’s counsel because respondent did not obtain the certificate of

eligibility that the statute required. The state attorney then filed in the Miami-Dade

case a motion to vacate the order to seal. On January 10, 2017, the trial court

granted the motion and entered an order vacating the order to seal.

       Thereafter, on June 14, 2017, respondent filed a motion to compel FDLE to

issue a certificate of eligibility in the Miami-Dade County case. Respondent

admitted she moved to unseal the Broward County case so that she could seal the

Miami-Dade case. The trial court granted the motion to compel and ordered FDLE

to issue a certificate of eligibility. FDLE then filed this petition. 1

       In order for the FDLE to receive relief, it must demonstrate that the trial

court’s order constitutes a departure from the essential requirements of the law,

which results in material injury that cannot be corrected on post-judgment appeal.

Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014). We agree

1FDLE filed a motion to stay the proceedings below, pending review by this
Court, which the trial court granted.

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with FDLE that the trial court's order compelling the FDLE to reissue the

defendant a certificate of eligibility constitutes a departure from the essential

requirements of law. FDLE cannot issue respondent a certificate of eligibility

because she previously secured an expunction in the Broward case in 2008.

      Section 943.059, Florida Statutes, titled, “Court-ordered sealing of criminal

history records,” controls the sealing of nonjudicial criminal history records.2

Under the statute, the petition to seal a criminal history record must be

accompanied by a valid certificate of eligibility for sealing issued by the FDLE.

State v. D.H.W., 686 So. 2d 1331, 1334 (Fla. 1996). Thus, before petitioning the

court to seal a criminal history record, a petitioner must apply to FDLE for a

certificate of eligibility for sealing. § 943.059(2), Fla. Stat. (2017).

      In addition, FDLE shall issue a certificate of eligibility for sealing to a

person who is the subject of a criminal history record, only if the person has never

secured a prior sealing or expunction of a criminal history record. § 943.059(2)(e),

Fla. Stat. (2017); A.J.M. v. Florida Dept. of Law Enf’t, 15 So. 3d 707, 709 (Fla. 3d

DCA 2009). Section 943.059(1)(b)3, provides that in addition to a valid certificate

of eligibility for sealing issued by the FDLE, each “petition to a court to seal a

criminal history record is complete only when accompanied by “the petitioner’s

sworn statement attesting that the petitioner [h]as never secured a prior sealing or

2 The criminal history records of FDLE, a criminal justice agency, are nonjudical
records. § 943.045(6), Fla. Stat. (2017).

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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.” In respondent’s case, she failed to

meet this statutory criteria because she secured a prior criminal history record

expunction when she applied to seal her records in the Broward County case in

2008, and her records were expunged pursuant to the court’s order. In addition,

when respondent filed her petition in Miami-Dade court, the petition could not, and

did not, allege she “has never secured a prior sealing or expunction,” as required

by section 943.059(1)(a)3.    She also could not, and did not, file an affidavit in

support of the petition stating that she “has never secured a prior sealing or

expunction,” as required by section 943.059(1)(a)3. Accordingly, the trial court

erred in compelling FDLE to issue respondent a certificate of eligibility.

      Section 943.059 further states, “The court may only order sealing of a

criminal history record pertaining to one arrest or one incident of alleged criminal

activity, except as provided in this section.” The statute makes no provision for

unsealing a record once it has been sealed by order of the court. In addition,

unsealing a record is not analogous to vacating an order to seal, for any executed

order to seal has already provided a defendant or a party the benefit of the statute.

Unsealing a record does not erase the fact that the petitioner “secured a prior

sealing or expunction.” The plain language of the statute provides that a party who

has secured a prior sealing or expunction is ineligible to get a second sealing or



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expunction. See § 943.059(2)(e), Fla. Stat. (2017).       We believe this is true,

notwithstanding the subsequent unsealing of the previous criminal history record

for any purpose.

       We are cognizant that Florida recognizes that the purpose of section 943.059

is to give the defendant a second chance. As the Florida Supreme Court stated in

State v. D.H.W., 686 So. 2d 1331, 1336 (Fla. 1997), “By contrast, the policy of

public access to old records must be weighed against the long-standing public

policy of providing a second chance to criminal defendants who have not been

adjudicated guilty." D.H.W. cited to State v. P.D.A., 618 So. 2d 282, 286 (Fla. 2d

DCA 1993), wherein Judge Altenbernd, both dissenting and concurring, wrote:

              Just as public trial has a long tradition, the policy of giving
       people a second chance by sealing court files is not a novel idea. See,
       e.g., Johnson v. State, 336 So. 2d 93 (Fla. 1976) (courts have used
       discretion to seal their records from public view “from time
       immemorial”).

Id. at 288 n. 6.

       However, the statute in question does not “confer any right to the sealing of

any criminal history record, and any request for sealing a criminal history record

may be denied at the sole discretion of the court.” § 943.059, Fla. Stat. (2017).

Here, respondent has already had her second chance, when her criminal history

record in the Broward County petit theft case was expunged in 2008. She was

thereafter charged in 2015 with grand theft in the Miami-Dade case. The statute in



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question does not provide for a second “second chance.” Accordingly, we grant

the petition for writ of certiorari.

       Petition granted; writ issued.




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