State v. Bissantz

• Decision Date: 20 May 1987
• Docket Number: No. 86-764,86-764
• Court: Ohio Supreme Court
• Parties: , 30 O.B.R. 434 The STATE of Ohio, Appellant, v. BISSANTZ, Appellee.

Page 120

30 Ohio St.3d 120

507 N.E.2d 1117, 30 O.B.R. 434

The STATE of Ohio, Appellant, v. BISSANTZ, Appellee.

No. 86-764.

Supreme Court of Ohio.

May 20, 1987.

Syllabus by the Court

R.C. 2945.67 is inapplicable to the state's right of direct appeal in expungement cases.

Appellee, Harold Bissantz, was convicted on April 29, 1981, ¹ of soliciting a bribe while holding office as a public official, in violation of R.C. 2921.02(B). On January 2, 1986, appellee filed an application for a sealing of the record of conviction under R.C. 2953.32 ² (hereinafter "expungement"). Following a hearing on February 17, 1986, the original trial judge granted the application for expungement. The trial judge, upon application of appellant, stayed the order of expungement pending appeal. Appellant filed a notice of appeal in the Court of Appeals for Clermont County, and appellee thereafter filed a motion to dismiss the appeal, which was granted by the appellate court on April 8, 1986. Appellant then filed an application for reconsideration of the dismissal, which was denied.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

George E. Pattison, Pros. Atty., and John C. Korfhagen, Batavia, for appellant.

Rosenhoffer, Nichols & Schwartz, Gary A. Rosenhoffer, Ely & True and J. Robert True, Batavia, for appellee.

DOAN, Judge.

The court of appeals premised its dismissal upon R.C. 2945.67, ³ determining that the state may not directly appeal an entry of expungement. We hold that R.C. 2945.67 is inapplicable to the state's right of direct appeal in expungement cases for the reason that expungement under R.C. 2953.32 is a postconviction relief proceeding, remedial in nature, and is governed by the Ohio Rules of Appellate Procedure as applicable to civil actions.

Our holding follows paragraph two of the syllabus in State v. Nichols (1984), 11 Ohio St.3d 40, 11 OBR 188, 463 N.E.2d 375, wherein this court ruled that "[p]ostconviction relief proceedings [are] governed by the Ohio Rules of Appellate Procedure as applicable to civil actions." The Nichols court determined that R.C. Chapter 2953 does not explicitly mandate the use of the Rules of Appellate Procedure as applicable to criminal cases.

We further observe that this court, considering R.C. 2953.31 et seq. in Barker v. State (1980), 62 Ohio St.2d 35, 16 O.O.3d 22, 402 N.E.2d 550, determined the statute to be remedial in nature and subject to liberal construction as mandated by R.C. 1.11.

It therefore follows that appellant had a civil right of appeal in the instant matter, and that the court of appeals committed error in dismissing the appeal upon the premise that it was without jurisdiction of the appeal as a criminal matter under R.C. 2945.67.

We do not here reach the merits of the state's appeal as to whether the trial court committed error in granting expungement under R.C. 2953.31 et seq. to one convicted of soliciting a bribe while holding office as a public official.

The judgment of the court of appeals is hereby reversed, and the cause is remanded to that court for disposition on its merits.

Judgment reversed and cause remanded.

MOYER, C.J., and FORD, HOLMES, DOUGLAS, WRIGHT and HERBERT R. BROWN, JJ., concur.

DOAN, J., of the First Appellate District, sitting for SWEENEY, J.

FORD, J., of the Eleventh Appellate District, sitting for LOCHER, J.

1 See State v. Bissantz (1982), 3 Ohio App.3d 108, 3 OBR 123, 444 N.E.2d 92.

2 We note only Division (A) of R.C. 2953.32 as being significant to our decision:

"A first offender may apply to the...