Judgment Appealed From Is: Vacated This case has sua sponte been removed from the accelerated calendar. DECISION.
Plaintiff-appellant, the state of Ohio, appeals from the April 8, 1999, order of the trial court granting defendant-appellee Carolyn Evans's application for expungement of her criminal record. The state maintains that Evans was not a "first offender" within the meaning of the statute, due to a criminal-trespass conviction entered against her in 1984. R.C.2953.31(A), which governs the expungement of a record, states in pertinent part as follows:
"First offender" means anyone who has been convicted of an offense in this state or any other jurisdiction, and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction * * *.
Because the question of whether one is a "first offender" is one of law, we independently review whether Evans was a "first offender" under the statute.1
The record reflects that on February 27, 1976, Evans was convicted of theft, following her plea of guilty, and placed on five years' probation. The record further reflects that when Evans was questioned about a subsequent conviction in 1984, she effectively conceded that one existed as a result of charges filed against her for criminal trespass. Although we think the better practice is to enter a copy of the subsequent conviction into the record, there is evidence demonstrating that Evans was not a "first offender"; therefore, we conclude the trial court did not have jurisdiction to grant the expungement2 and we vacate its order.
Judgment vacated. Gorman, P.J., Sundermann and Winkler, JJ. Please Note:
The court has placed of record its own entry in this case on the date of the release of this Decision.
1 See State v. Derugen (1996), 110 Ohio App. 3d 408, 410,674 N.E.2d 719, 720; State v. McGinnis (1993), 90 Ohio App. 3d 479,481, 629 N.E.2d 1084, 1085.
2 See State v. Coleman (1997) 117 Ohio App. 3d 726,691 N.E.2d 369; State v. Thomas (1979), 64 Ohio App. 2d 141,411 N.E.2d 845.