Russell v. Miami Herald Pub. Co., 89-01468
| Decision Date | 06 July 1990 |
| Docket Number | No. 89-01468,89-01468 |
| Citation | 570 So.2d 979 |
| Parties | 15 Fla. L. Weekly D1772, 18 Media L. Rep. 2036 John Lewis RUSSELL, III, Appellant/Cross Appellee, v. MIAMI HERALD PUBLISHING CO., Appellee/Cross Appellant, v. STATE of Florida, Cross Appellee. |
| Court | Florida District Court of Appeals |
Richard S. Blunt, Tampa, for appellant/cross appellee.
George K. Rahdert and David S. Bralow of Rahdert & Anderson, St. Petersburg, for appellee/cross appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for cross appellee.
John Lewis Russell, III, appeals a trial court order which allowed the Miami Herald Publishing Company to intervene in three cases which are separate criminal proceedings from 1979, 1981, and 1984 for the purpose of having the expunction orders entered in each of those cases vacated; vacated the expunction orders in two of the three cases; denied Russell's motion for order to show cause why the Herald should not be held in contempt; and denied Russell's request to have the Herald reveal its sources. The Herald cross appeals the same order, alleging the trial judge erred in not vacating the one expunction order and further erred in ruling that the standards designed to protect the constitutional and common law right to access is inapplicable to a court's consideration of a motion to vacate an expunction order. Russell also challenges the constitutionality of section 943.058, Florida Statutes (Supp.1980). We reverse.
The criminal records of Russell relevant to this appeal, all from Hillsborough County, are as follows:
1. Although we recognize that this file remains expunged and for that reason would hesitate to discuss it in this opinion, Russell's attorney fully discussed the exact charge and facts surrounding this charge during a hearing before the lower court. We find it necessary to discuss the charge in this opinion because of its interconnection with the other charges and issues.
Case No./Offense Disposition Expunction
79"7292B Nolo plea; Withheld 6/13/80 order
Misdemeanor charge 1 adjudication expunging
Note FN1. Although we recognize that this file remains expunged and for that reason
Note would hesitate to discuss it in this opinion, Russell's attorney fully
Note discussed the exact charge and facts surrounding this charge during a hearing
Note before the lower court. We find it necessary to discuss the charge in this
Note opinion because of its interconnection with the other charges and issues.
records
79"4348A Never filed as 10/3/80 order
Carrying concealed felony expunging
firearm/felony records
81"8465E Dismissed 7/6/82 order
Grand theft expunging
records
84"3173A No information 12/4/84 order
Possession of filed expunging
cocaine and drug records
paraphernalia
In 1989, the Herald assigned an investigative reporter to do an article concerning a Florida nonprofit charitable organization, Bureau of Missing Children, Inc., of which Russell is the chief executive officer. Through the course of the reporter's investigation, the Herald learned that Russell had been arrested on several occasions and that Russell had the criminal history records expunged. The Herald learned from an unknown source the details of the cases, the case numbers, and the dates and nature of the orders expunging the records.
The Herald sought to intervene in these cases and to vacate expunction orders and unseal court records involving all criminal cases against Russell except the 1979 misdemeanor charge. The Herald sought access to the judicial records only and not to law enforcement or other agency records. Russell challenged the Herald's standing to intervene and filed a motion for order to show cause why the Herald was not in contempt for obtaining and publishing criminal history information relating to Russell and further requested that the trial court order the Herald to disclose its source of information.
At a hearing on the merits, the judge ruled that the Miami Herald had standing to question the validity of the expunction orders. The judge then ruled that the trial court had discretion to seal or expunge its own judicial records. The judge further ruled that other criminal history records could be sealed or expunged as long as the requirements of section 943.058(2)(a)-(d), which will be set out below, are met. Finally, the judge ruled that the standards designed to protect the public's right to access was irrelevant to its determination of the motion to vacate the expunction orders.
Applying these rulings to the facts of these cases, the trial court ruled that the expunction ordered in the 1979 felony case, as to both the court's own judicial records and the other criminal history records, was properly entered and refused to vacate that order. Relative to the 1981 and 1984 cases, as to both the court's own judicial records and the other criminal history records, the trial judge ruled that the trial court had abused its discretion in entering the expunction orders and vacated those orders. The judge ruled that there had to be a showing of unusual circumstances in order for the trial judges to have ordered the expunctions. He then found that no unusual circumstances existed at the time the expunction orders were entered.
Preliminarily, we hold that the trial court had jurisdiction to rehear and vacate the expungement orders, see Johnson v. State, 336 So.2d 93, 95 (Fla.1976); that the Herald does have standing in this proceeding, see State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla.1976); and that the doctrine of res judicata does not bar the litigation of these issues because there is no identity of the parties. See Miller v. Cowart, 546 So.2d 768 (Fla. 2d DCA 1989).
The expunction orders at issue are governed by section 943.058, Florida Statutes (Supp.1980). 2 The statute provides:
943.058 Criminal history expunction or sealing.--
(2) The courts of this state shall continue to have jurisdiction over their own procedures, including the keeping, sealing, expunction, or correction of judicial records containing criminal history information. The courts may order the sealing or expunction of any other criminal history record provided:
(a) The person who is the subject of the record has never previously been adjudicated guilty of a criminal offense or comparable ordinance violation (b) The person who is the subject of the record has not been adjudicated guilty of any of the charges stemming from the arrest or alleged criminal activity to which the records expunction petition pertains;
(c) The person who is the subject of the record has not secured a prior records expunction or sealing under this section, former s. 893.14, or former s. 901.33; and
(d) Such record has been sealed under this section, former s. 893.14, or former s. 901.33 for at least 10 years; except that, this condition shall not apply in any instance in which an indictment or information was not filed against the person who is the subject of the record.
(3) Notwithstanding subsection (2), criminal history records maintained by the Department of Law Enforcement may be ordered expunged only upon a specific finding by a circuit court of unusual circumstances requiring the exercise of the extraordinary equitable powers of the court. Upon a finding that the criteria set out in paragraphs (2)(a)-(c) have been met, the records maintained by the department may be ordered sealed by any court of competent jurisdiction; and thereafter such records and other records sealed pursuant to this section, former s. 893.14, former s. 901.33, or similar laws, shall be nonpublic records, available only to the subject, his attorney, or to criminal justice agencies for their respective criminal justice purposes. An order sealing criminal history records pursuant to this subsection shall not be construed to require that the records be surrendered to the court, and such records shall continue to be maintained by the department.
§ 943.058, Fla.Stat. (Supp.1980).
Our first inquiry is the interpretation of section 943.058. The Herald argues that a petitioner must meet the requirements of subsection (2)(a)-(d) in order to have the court's own records sealed or expunged. We disagree with this interpretation. Subsection (2) of the statute differentiates between the court's own records and other criminal history records. The requirements set forth in subsection (2)(a)-(d) apply only to the sealing or expunction of other criminal history records. We, therefore, interpret the statute as allowing a court to seal or expunge its own records, using its sound discretion. This court has recognized that a court has discretion to seal its own records even though a defendant had been adjudged guilty of those offenses. See State v. Urf, 524 So.2d 1118 (Fla. 2d DCA 1988). We recognize that our interpretation of the statute in Urf, which we reaffirm today, conflicts with the fourth district's opinion in State v. Herstik, 475 So.2d 1268 (Fla. 4th DCA 1985).
The next inquiry is the appropriate standard that a court should apply when considering a motion to vacate an order sealing or expunging the court's own records. This is where we believe the judge in this case erred. He ruled that there had to be unusual circumstances for the court to seal the records and that unusual circumstances did not exist in this case. The requirement of unusual circumstances, however, is found in subsection (3). That subsection provides...
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