### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

NELSA MCGANN GREY
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 14

- 2473

[ April 27, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Matthew I. Destry , Judge; L.T. Case No. 11

- 17636CF10A

.

Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard

Val untas , Assistant Attorney General, West Palm Beach, for appellee.

D AM OORGIAN
, J

.

Appellant, Nelsa McGann Grey, appeals the trial court’s order denying her petition to seal her criminal record. The State concedes error pursuant

to our recent decision in Gotowala v. State

, 184 So. 3d 56 8 (Fla. 4th DCA 2016)

. According ly , we reverse.

After initially being charged with one offense

, Appellant negotiated a plea with the State and plead ed no contest to a lesser offense . The court accepted Appellant’s plea, withheld adjudication, and sentenced her to one year of probation. After serving her sentence , Appellant petitioned to seal her criminal record. In support of her petition, Appellant submitted an affidavit as well as a certificate of eligibility for the Florida Department of Law Enforcement. Without conducting a hearing, the court entered an order denying Appellant’s petition on the grounds that “the conduct

detailed in the Probable C ause Affidavit evidences a sophisticated criminal course of conduct that if hidden from the view of ordinary citizens would deprive them of information essential to appropriately guard against a threat to their security.”2

Thereafter, Appellant filed a “Re newed Petition to Seal Case

- File” in which she alleged that she was innocent of the underlying offense and submitted evidence supporting her position. At the hearing on Appellant’s renewed petition

, the State informed the court it was not objecting to App ellant’s request. Appellant made a brief statement on her own behalf, explaining that she plead ed no contest to a reduced charge in order to resolve the matter in an expedient fashion and that her record was preventing her from obtaining employment

. The court refused to consider Appellant’s position and denied her petition based on the nature of the initial charge and the corresponding probable cause affidavit. This appeal

follows.

The sealing of a criminal history is governed by section 943.059 of the

Florida Statutes , and Florida Rule of Criminal Procedure 3.692(a)(1)

. I f a petitioner satisfies the requirements of section 943.059 and Rule 3.692(a)(1), the petitioner is “presumptively entitled to an order to seal or expunge court records .” Anderson v. State , 692 So. 2d 250, 252 (Fla. 3d DCA 1997)

. W hile the decision to seal a record is in the trial judge’s “sole discretion,” the exercise of discretion requires “good reason bas ed on [the]

facts and circumstances of [the petitioner’s] individual case. ” Shanks v.

State , 82 So. 3d 1226, 1227 (Fla. 1st DCA 2012)

. Here, there is no dis pute that Appellant met the pre requi sites for obtaining an order sealing her

record . T hus, the question is whether the court had “good reason based

on the facts and circumstances” of Appellant’s case to deny her petition.

In Got owala v. State

, 184 So. 3d 568 (Fla. 4th DCA 2016) , the presiding judge denied a petitioner ’s request to seal his criminal record although the petitioner satisfied the statutory requirements of section 943.059 and Rule

3.692

. Id

. at 569. In doing so, the court relied on the facts laid out in the arresting officer’s probable cause affidavit and based on those facts, ruled

tha t sealing the petitioner ’s record would “ ‘ pose[] a danger to the citizens of Broward County and the general public. ’ ” Id. We reversed, holding that:

[T]he lower court’s mere reliance on th e facts as laid out in a probable cause affidavit does not show “the court ma[d]e its

decision based on consideration of all the facts and

circumstances ” of [ petitioner’s ] case. Moreover, the court’s order does not indicate the specific facts that led it to conclude that sealing [ petitioner’s ] records would pose a danger to public safety.

Id

. at 570 (citation omitted).3

Gotowala establishe s that a court may not deny a petitio n to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit. Rather, the court must consider the facts actually established in the petitioner ’s case.

In this case, the court relied solely upon the probable cause affidavit as the basis to deny Appellant’s motion. Accordingly, we reverse and remand with instructions to conduct an evidentiary hearing and enter a sufficient

order.

Reverse d and remanded for further proceedings consistent with this opinion.

G ROSS and K LINGENSMITH
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.