       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

             SIMONE MAXWELL, a/k/a SYMONE MAXWELL,
                           Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D15-1274

                           [February 17, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa Porter, Judge; L.T. Case No. 09-007417 CF10A.

  Cullin O’Brien of Cullin O’Brien Law, P.A., Fort Lauderdale, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

WARNER, J.

   We grant Appellant’s motion for rehearing, withdraw our prior per
curiam affirmance, and substitute this opinion in its place.

   Appellant Simone Maxwell appeals the trial court’s denial of her petition
to expunge her criminal history record, arguing that it was an abuse of
discretion not to do so, as her judgment of conviction and sentence had
been vacated. We disagree and affirm the trial court’s denial.

   While Appellant was a home healthcare provider for an elderly woman,
she would leave the woman unattended and tied to her bed, and would
give her Ambien to induce sleep. The Ambien had not been prescribed to
the woman. According to the testimony at trial, Appellant did this so that
she could party with her boyfriend. Appellant was charged with elderly
abuse/neglect under section 825.102(3)(a)(1), Florida Statutes (2008).
Following a jury trial, Appellant was found guilty and sentenced to five
years in prison.
   Appellant appealed the trial court’s denial of her motion for acquittal
and this Court reversed her judgment of conviction. Maxwell v. State, 110
So. 3d 958 (Fla. 4th DCA 2013). The Court found that the affirmative act
of giving the elderly woman Ambien did not constitute neglect as defined
by section 825.102(3)(a)(1), Florida Statutes (2008). Maxwell, 110 So. 3d
at 961. The Court concluded that “Appellant’s conduct, though possibly
criminal, was not proscribed by the statute under which she was charged
when construed most favorably to the accused, a construction we are
obligated to adopt pursuant to the ‘Rule of Lenity.’” Id. at 959. On remand,
the trial court vacated Appellant’s judgment and sentence.

    Appellant then filed a petition to expunge. The trial court held a hearing
on the petition, which Appellant did not attend. The State did not say
anything during the hearing, and did not enter any opposition or support
of the petition. Neither side presented evidence. The trial court denied the
petition. Appellant now challenges this denial.

    The procedure to expunge criminal history records is governed by
Florida Rule of Criminal Procedure 3.692 and section 943.0585, Florida
Statutes (2014). “This section does not confer any right to the expunction
of any criminal history record, and any request for expunction of a criminal
history record may be denied at the sole discretion of the court.”
§ 943.0585, Fla. Stat. (2014).

    However, the court’s discretion to deny a petition is not unlimited.
Gotowala v. State, 162 So. 3d 33, 34 (Fla. 4th DCA 2014). Where a petition
substantially complies with all of the section 943.0585 requirements, the
petitioner is presumptively entitled to an order of expunction “absent a
finding by the trial judge that there was ‘a good reason for denial based on
the facts and circumstances of the individual case.’” Orozco v. State, 920
So. 2d 208, 208-09 (Fla. 4th DCA 2006) (quoting Oymayan v. State, 765
So. 2d 812, 814 (Fla. 1st DCA 2000)); see also Baker v. State, 53 So. 3d
1147, 1148 (Fla. 1st DCA 2011) (“Where the petitioner has satisfied the
requirements of the relevant rules and statutes, it is an abuse of discretion
for the trial court to deny the petition without a factual basis.”).

    A petition to expunge is complete only when accompanied by a
certificate of eligibility for expunction issued by the Florida Department of
Law Enforcement (“FDLE”), as well as the petitioner’s sworn statement that
the petitioner, among other things, “[h]as not been adjudicated guilty
of . . . any of the acts stemming from the arrest or alleged criminal activity
to which the petition pertains.” § 943.0585(1), Fla. Stat. (2014).

   Here, Appellant’s petition was accompanied by a certificate of eligibility

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and a sworn statement that claimed, in part, that she had “never been
adjudicated guilty of a criminal offense . . . which has not been vacated.”1
At the hearing on the petition, the trial court offered to hear testimony, but
Appellant’s attorney declined. Appellant was not present at the hearing,
and while her absence itself was not held against her, it meant that there
was nothing for the court to consider except the trial testimony.

   Relying on the facts as developed at the criminal trial, the trial court
found that although her conviction had been reversed on a charging issue,
“the public should have a right to know about” Appellant’s arrest for her
treatment of the elderly woman. The court specifically referenced the fact
that Appellant had been a family friend, hired at great expense to provide
nursing care to the elderly woman, who was mentally sharp but had been
rendered immobile by a fractured hip; that Appellant would tie her to the
bed and leave her unattended for hours; and that Appellant would

1  Although Appellant did receive an FDLE certificate of eligibility for expunction,
it appears that the certificate should not have been issued. In cases where
charges were actually filed, to be eligible for a certificate of eligibility under section
943.0585(2), Florida Statutes (2014), a person must submit to the FDLE “a
written, certified statement from the appropriate state attorney or statewide
prosecutor” indicating that the charging document
    was dismissed or nolle prosequi by the state attorney or statewide
    prosecutor, or was dismissed by a court of competent jurisdiction, and
    that none of the charges related to the arrest or alleged criminal activity to
    which the petition to expunge pertains resulted in a trial, without regard to
    whether the outcome of the trial was other than an adjudication of guilt.
§ 943.0585(2)(a)2., Fla. Stat. (2014) (emphasis added). The italicized language
was added to the statute in 2006, and unquestionably applies in the present case.
See 2006 Fla. Sess. Law Serv. Ch. 2006-176 (H.B. 151) (WEST).
    In the form Appellant submitted to the FDLE, an assistant state attorney
(“ASA”) had checked a box that the charging document had merely been
dismissed. The form was evidently outdated, as it did not address whether the
charge had resulted in a trial. Nonetheless, because the charge had indeed
resulted in a trial, the FDLE initially denied Appellant’s request for a certificate
of eligibility. Upon a motion by Appellant, the trial court overrode this decision
and ordered the FDLE to issue her a certificate. Appellant’s motion relied on
Murphy v. State, 363 So. 2d 581 (Fla. 4th DCA 1978), involving an extremely
outdated version of the statute.
    It appears to us that the FDLE’s initial determination was correct. The ASA’s
statement failed to address the fact that the charge had resulted in trial. The fact
that the trial had been held, regardless of the outcome, precluded Appellant’s
eligibility for a certificate. The reversal on appeal and subsequent dismissal were
irrelevant. Thus, the trial court incorrectly determined that Appellant was eligible
for an FDLE certificate.


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administer unprescribed Ambien to the woman, which could have fatally
interacted with her other medications. On this basis, the trial court denied
the petition to expunge. Appellant raises various arguments as to why this
was an abuse of discretion.

    We find that the trial court gave acceptable reasons for denying
Appellant’s petition. Those reasons were sufficiently related to the specific
facts and circumstances of her case to constitute good reasons to deny the
petition. Although Appellant relies on Baker, 53 So. 3d at 1148, that case
is distinguishable. Baker dealt with expunging an arrest on charges that
the State elected not to pursue. Id. It did not involve an appellate reversal
after a jury’s guilty verdict. Further, the trial court in Baker considered
only the nature of the charge and the defendant’s occupation. Id. This
contrasts with the present case, where the trial court also considered the
underlying facts and trial testimony.

    The manner in which a conviction was discharged is relevant in
considering a petition to expunge. This is reflected in section 943.0585,
which effectively bars the expunction of any charges that proceeded to
trial, regardless of the outcome. See § 943.0585(2)(a)2., Fla. Stat. (2014).
In this case, the trial court noted that the charge had indeed proceeded to
trial, following which a jury had found Appellant guilty. Even though this
Court found that the facts did not constitute the crime charged;
nevertheless, we noted that Appellant’s conduct was possibly criminal.
This would serve as a “good reason” not to expunge her record.

   On this basis, we affirm the trial court’s denial of the petition to
expunge.

   Affirmed.

MAY, J., and GILLEN, JEFFREY DANA, Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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