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Donalds was arrested for marijuana possession in 1997, a misdemeanor, and received pretrial diversion, and the charge was dismissed.
Donalds was arrested on felony theft charges in 2000 and pleaded no contest. His campaign said he later had the record sealed and expunged.
Donalds did not disclose either case on an application to serve on the board of governors for a college.
A Republican congressional candidate in Florida says one of his leading primary opponents has been dishonest about his criminal record and support for President Donald Trump.
The TV ad by businessman Casey Askar attacks state Rep. Byron Donalds. They are among many Republicans running in the Aug. 18 primary to replace U.S. Rep. Francis Rooney, who is retiring from the safe GOP seat in coastal southwest Florida.
"When Byron Donalds wanted a state job, he lied, claiming he wasn’t a felon despite convictions for drugs and felony theft," the narrator says, showing a date of 1997.
The narrator also says: "Now Byron Donalds pretends he’s Trump’s biggest fan, even though he called Trump a self-promoter yelling about China and thanked God Trump wasn’t running."
A spokesman for Askar’s campaign pointed to Leon County court records about Donalds’ marijuana case and news articles about his theft case. But based on those records and reports, we found that Askar ad’s claims about Donalds’ past criminal cases are misleading in several ways.
The claims about Trump stem from remarks Donalds made in 2011, well before Trump’s presidential campaign. We look at them briefly here.
Donalds acknowledges that he was the defendant in two criminal cases in Leon County when he was a young man — in fact, he brings them up in a campaign video. But he argues he didn’t have to disclose them on an application to serve on a board for a college.
Donalds was given a notice to appear in court on a marijuana possession charge, a misdemeanor, in 1997, when he was 19. The case was sent to pretrial diversion and the state attorney later dismissed the charge. So Askar’s claim about the drug conviction is false.
Donalds spokesman Mark Harris told PolitiFact that Donalds thought the marijuana case record was expunged, but we found the case in Leon County court records and couldn’t find any evidence that it was expunged.
In the second case, Donalds was arrested and charged with felony theft in 2000, pleaded no contest and served one year of probation, Harris said. Years later, he had the records sealed and ultimately expunged, according to his campaign. In Florida defendants can seek to get a case expunged if they meet certain criteria, but generally they can get only one case expunged.
When asked about the theft case in 2014, Donalds said that a woman offered him money for his debit card and PIN and he gave it to her. The Naples Daily News reported that Donalds said someone used his bank account to cash $7,000 in bad checks.
The theft case does not appear in Leon County court records so we can’t say with certainty what happened, but we found no record to support the ad’s portrayal of Donalds as a felon.
Stephen A. Leal, a criminal defense attorney in Tampa, told us Donalds would not have been able to get his record expunged if the state considered him a convicted felon. Defendants can seek to have their records sealed if they pleaded no contest and successfully completed probation. Expungement deletes the record, while sealing makes it inaccessible to the public.
"For the layman, that’s a pretty fine distinction," Leal said.
The TV ad said Donalds was seeking a "state job." But the position the campaign cited was a volunteer position on the Board of Governors for Edison State College (now known as Florida Southwestern State College). A written application asked, "Have you ever been arrested, charged or indicted for violation of any federal, state or county or municipal law, regulation or ordinance?" Donalds checked "no."
Florida Statute 943.0585 states that a person who has their criminal history expunged "may lawfully deny or fail to acknowledge the arrests covered by the expunged record." The statute has a long list of exceptions, but the college board position didn’t fall under any one of them, Harris said, so Donalds lawfully denied the arrest.
Another statute, with the same exceptions, similarly says defendants aren’t required to disclose information in a sealed criminal record.
Then-Gov. Rick Scott appointed Donalds to the board in 2014, and the state Senate confirmed him.
When Donalds was given a notice to appear on the marijuana charge, that was the equivalent of an arrest. Florida rules allow that process to avoid jailing someone for an offense that most likely won’t result in a jail sentence, Leal said.
But Leal, a criminal defense attorney, said Donalds "goofed" by not marking "yes" on the form with respect to the pot charge.
"I say he goofed, as opposed to outright lying, because this is a fairly fine legal distinction that most people not acquainted with the criminal justice system would have difficulty sorting out," Leal said.
"However, if you’re putting yourself in a position to be scrutinized, discretion would suggest you list it," Leal added.
David W. Adams, an employment lawyer in Tampa, said he typically advises private employers that job applications should ask questions only about convictions, which are more reliable than arrests for employment decisions.
Studies indicate that minorities are arrested at a higher rate, he noted, which means that someone may be unjustly arrested due to race.
Karen Coolman Amlong, an employment lawyer in Fort Lauderdale, said she advises clients to err on the side of disclosure.
"Particularly if it is an old incident, the downside from a youthful transgression is likely to be less than a perceived problem with candor," she said.
While the Florida statutes say expunged or sealed records needn’t be acknowledged, it’s not clear how they treat an arrest for charges that are dismissed.
Donalds did make statements critical about Trump — several years before Trump’s successful campaign for president.
In April 2011, years before he was a state representative, Donalds posted on Facebook: "The Trump vs Obama thing is really dumb. Trump is a self-promoter yelling about 25% tariffs on China. Obama is so busy he has to fly to Chicago to do Oprah, then to New York to do fundraisers. Meanwhile, the American people suffer from rising food costs, rising gas costs, rising healthcare costs, rising debt, and a weaker America."
Donalds’ campaign said he initially supported Sen. Ted Cruz, R-Texas, in the 2016 primary but later supported Trump. Donalds spoke at a Trump rally in Estero in 2016. and in 2019, Donalds gave Trump an award, and the president praised him.
A TV ad by Askar said, "When Byron Donalds wanted a state job, he lied, claiming he wasn’t a felon despite convictions for drugs and felony theft."
The ad gives inaccurate information and leaves out important context about Donalds’ past criminal cases, such as that the drug case was a misdemeanor charge that was later dismissed. In the felony theft case, from 2000, Donalds pleaded no contest and later had the records sealed and expunged, meaning he was not obligated to acknowledge it on the application for a college board post.
The statutes are unclear on whether Donalds was legally obligated to disclose the marijuana arrest on the application. But this ad overreaches by saying he lied about being a felon. Neither Askar nor the state could furnish any records indicating that the state considers Donalds a convicted felon.
We rate this statement Mostly False.
PolitiFact researcher Caryn Baird contributed to this fact-check.
Casey Askar, ad about Bryon Donalds, July 2020
Byron Donalds campaign website, Accessed July 2020
Leon County Clerk of the Circuit Court and Comptroller, Byron Donalds marijuana case, 1997
Byron Donalds Facebook, Post, April 28, 2011
Byron Donalds Facebook, Post, May 2011
Florida Statutes, 943.0585 Court-ordered expunction of criminal history records
Center for Responsive Politics, Congressional district 19 primary, Accessed June 25, 2020
Florida Politics, Joe Davidow says he’s telling ‘truth’ about Byron Donalds in HD 80 race, July 21, 2016
Florida Politics, Byron Donalds touts Donald Trump’s praise in first TV ad, June 22, 2020
Fox 4 Now, Tea Party star answers to charges of a criminal past, April 28, 2014
Naples Daily News, Write-in candidate silent vs. Donalds in race to represent part of Collier in state House, Oct. 4, 2016
Fort Myers News-Press, Senate approves Donalds to Edison State College board, April 29, 2014
Fort Myers News-Press, Bill by Naples Rep. Donalds would undermine Sunshine Law, Feb. 16, 2017
Florida House, House Bill 843, 2017
Florida House, House Bill 849, 2018
PolitiFact, Florida congressional candidate blames antifa for violence without evidence, June 26, 2020
Email interview, Mark Harris, spokesman for Byron Donalds congressional campaign, July 21, 2020
Email interview, Nick Carr, spokesman for Casey Askar congressional campaign, July 21, 2020
Email interview, Shannon Cash-Russell, director of criminal courts for Leon County, July 22, 2020
Email interview, Gretl Plessinger, Florida Department of Law Enforcement spokeswoman, July 22, 2020
Email interview, Stephen A. Leal, Tampa criminal defense attorney McIntyre Thanasides law firm, July 28, 2020
Email interview, David W. Adams, Tampa employment lawyer BJ&A law firm, July 27, 2020
Email interview, Karen Coolman Amlong, Fort Lauderdale labor lawyer, July 28, 2020
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