State v. Thomas
| Decision Date | 31 May 1979 |
| Citation | 411 N.E.2d 845,64 Ohio App.2d 141 |
| Parties | , 18 O.O.3d 106 The STATE of Ohio, Appellee, v. THOMAS, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A court's jurisdiction is not properly invoked under R.C. 2953.32, the statute containing the procedure for obtaining the expungement of a record of conviction, unless the applicant for expungement is in fact a first offender. In the absence of this requirement, the expungement is void for lack of jurisdiction and may be vacated at any time.
John T. Corrigan, Pros. Atty., for appellee.
Joel I. Newman, Cleveland, for appellant.
This appeal involves Ohio's relatively new expungement statutes, R.C. 2953.31-.36, with particular emphasis on R.C. 2953.32. R.C. 2953.32 contains the procedure for obtaining the expungement of a conviction, and essentially provides that a first offender may apply for the expungement of the record of his conviction after the passage of either one or three years, depending upon whether the conviction was for a misdemeanor or a felony. The precise issue in this case is whether an applicant's status as a first offender is a jurisdictional requirement to a proceeding for the expungement of a record of conviction.
The facts in the present case are as follows. On December 10, 1969, the defendant-appellant George Paul Thomas, hereinafter referred to as the appellant, pleaded guilty to malicious destruction of property. He was sentenced to the Ohio State Reformatory on January 21, 1970, and was granted parole on January 5, 1971. On January 20, 1972, appellant was granted a final release from parole and restoration of his rights.
On January 24, 1975, appellant filed an application for expungement of his record of conviction, pursuant to R.C. 2953.32. At the hearing on appellant's application for expungement, the prosecutor stated that he had no objection to the granting of the application for expungement. Appellant's counsel was asked whether the conviction for malicious destruction of property was appellant's first conviction for a felony, and he responded in the affirmative. Counsel for appellant also stated that appellant was a first offender as it related to this crime; that there were no criminal proceedings pending against him at this time; and that he had successfully completed his parole three years prior to the filing of his application for expungement.
On April 23, 1975, the court ordered that appellant's conviction be expunged, having found that: appellant had been convicted of an offense that did not exclude probation; that three or more years had elapsed since appellant's final discharge from such conviction; that no criminal proceedings were pending against him; that his rehabilitation had been attained to the court's satisfaction; and that expungement of the record of his conviction was consistent with the public interest.
On October 25, 1977, the prosecutor filed a motion to vacate the expungement. At the hearing on the motion to vacate, the court noted that it had received a letter from the Chief of Police of Parma, to the effect that appellant was not a first offender, and therefore, that he was ineligible to have his conviction expunged. The court received records from the Lakewood Municipal Court into evidence. Although the exhibits have not been included in the record, it was stipulated that they reflect that, prior to his incarceration in the state Reformatory, appellant had been convicted of three misdemeanors. Appellant objected to the motion to vacate as being untimely.
On December 9, 1977, the motion to vacate was granted, based on the stipulation that appellant had a prior misdemeanor record.
Appellant filed a timely notice of appeal from the court's order granting the motion to vacate the expungement, and presents one issue for our consideration:
"Whether two and one-half years after entry of a judgment granting expungement, it can be vacated because of a factual error at the time of hearing?"
The appellant concedes that he was not a first offender as defined in R.C. 2953.31, but contends that the filing of a motion to vacate the expungement two and one-half years after an order granting the expungement was untimely.
The appellee, on the other hand, argues that the time element is insignificant as the requirement of status as a "first offender" is akin to a jurisdictional requirement, and that the jurisdiction of the court cannot be invoked under R.C. 2953.32 unless the applicant for expungement is a "first offender."
In order to make a determination on this issue, it is necessary to refer to R.C. 2953.31, which includes the definition of "first offender," and R.C. 2953.32, which sets forth the procedure for obtaining expungement of a record of conviction.
R.C. 2953.31 provides:
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