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As Passed by the Senate
123rd General Assembly
Regular Session
1999-2000 | Sub. S. B. No. 13 |
SENATOR BLESSING
A BILL
To amend sections 2953.31, 2953.32, and 2953.36 of the Revised Code to expand
the definition of
"first offender" in the criminal conviction records sealing law to include, in
certain situations,
offenders who have two or three convictions resulting from the same
indictment,
information, complaint, guilty plea, or official proceeding
and resulting from related
criminal acts that were committed within a three-month period, and
to exclude from that law all
convictions of an offense of violence, an offense of which the
victim was a juvenile, or a felony of the first or second degree.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2953.31, 2953.32, and 2953.36 of the Revised Code be
amended to read as follows:
Sec. 2953.31. As used in sections 2953.31 to 2953.36 of
the Revised Code:
(A) "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. When two or more
convictions result from or are connected with
the same act, or result from offenses committed at the same time,
they shall be counted as one conviction. WHEN TWO OR THREE CONVICTIONS
RESULT FROM THE SAME INDICTMENT, INFORMATION, OR COMPLAINT, FROM THE
SAME PLEA OF GUILTY, OR FROM THE SAME OFFICIAL PROCEEDING, AND RESULT
FROM RELATED CRIMINAL ACTS THAT WERE COMMITTED WITHIN A THREE-MONTH PERIOD BUT
DO NOT RESULT FROM THE SAME ACT OR FROM OFFENSES
COMMITTED AT THE SAME TIME, THEY SHALL BE COUNTED AS ONE CONVICTION, PROVIDED
THAT A COURT MAY DECIDE AS PROVIDED IN DIVISION
(C)(1)(a) OF SECTION 2953.32 of the Revised Code THAT IT IS NOT IN THE
PUBLIC INTEREST FOR THE TWO OR THREE CONVICTIONS TO BE COUNTED AS ONE
CONVICTION.
For purposes of, and except as otherwise provided in, this
division, a conviction for a minor misdemeanor, a conviction for
a violation of any section in Chapter 4511., 4513., or 4549. of
the Revised Code, or a conviction for a violation of a municipal
ordinance that is substantially similar to any section in those
chapters, is not a previous or subsequent conviction. A
conviction for a violation of section 4511.19, 4511.192,
4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.07, or
sections 4549.41 to 4549.46 of the Revised Code, or a conviction
for a violation of a municipal ordinance that is substantially
similar to any of those sections, shall be considered a previous
or subsequent conviction.
(B) "Prosecutor" means the county prosecuting attorney,
city director of law, village solicitor, or similar chief legal
officer, who has the authority to prosecute a criminal case in
the court in which the case is filed.
(C) "Bail forfeiture" means the forfeiture of bail by a
defendant who is arrested for the commission of a misdemeanor,
other than a defendant in a traffic case as defined in Traffic
Rule 2, if the forfeiture is pursuant to an agreement with the
court and prosecutor in the case.
(D) "Official records" has the same meaning as in division
(D) of section 2953.51 of the Revised Code.
(E) "OFFICIAL PROCEEDING" HAS THE SAME MEANING AS IN SECTION
2921.01 of the Revised Code.
Sec. 2953.32. (A)(1) Except as provided in section
2953.61 of the Revised Code, a first offender may apply to the
sentencing court if convicted in this state, or to a court of
common pleas if convicted in another state or in a federal court,
for the sealing of the conviction record that offender's. Application
may be made at the
expiration of three years after the offender's final discharge if
convicted of a felony, or at the expiration of one year after the offender's
final discharge if convicted of a misdemeanor.
(2) Any person who has been arrested for any misdemeanor
offense and who has effected a bail forfeiture may apply to the
court in which the misdemeanor criminal case was pending when
bail was forfeited for the sealing of that person's the record of the
case. Except as provided in section 2953.61 of the Revised Code, the
application may be filed at any time after the expiration of one
year from the date on which the bail forfeiture was entered upon
the minutes of the court or the journal, whichever entry occurs
first.
(B) Upon the filing of an application under this section,
the court shall set a date for a hearing and shall notify the
prosecutor for the case of the hearing on the application. The
prosecutor may object to the granting of the application by
filing an objection with the court prior to the date set for the
hearing. The prosecutor shall specify in the objection the
reasons the prosecutor for believing a denial of the application is
justified.
The court shall direct its regular probation officer, a state
probation officer, or the department of probation of the county
in which the applicant resides to make inquiries and written
reports as the court requires concerning the applicant.
(C)(1) The court shall do each of the following:
(a) Determine whether the applicant is a first offender or
whether the forfeiture of bail was agreed to by the applicant and
the prosecutor in the case;. IF THE APPLICANT APPLIES AS A
FIRST OFFENDER PURSUANT TO DIVISION (A)(1) OF THIS SECTION AND HAS
TWO OR THREE CONVICTIONS THAT RESULT FROM THE SAME INDICTMENT, INFORMATION, OR
COMPLAINT, FROM THE SAME PLEA OF GUILTY, OR FROM THE SAME OFFICIAL PROCEEDING,
AND RESULT FROM RELATED CRIMINAL ACTS THAT WERE COMMITTED WITHIN A THREE-MONTH
PERIOD BUT DO NOT RESULT FROM THE SAME ACT OR FROM OFFENSES COMMITTED AT THE
SAME TIME, IN MAKING ITS DETERMINATION UNDER THIS DIVISION, THE COURT
INITIALLY SHALL DETERMINE WHETHER IT IS NOT IN THE PUBLIC INTEREST FOR THE TWO
OR THREE CONVICTIONS TO BE COUNTED AS ONE CONVICTION. IF THE COURT DETERMINES
THAT IT IS NOT IN THE PUBLIC INTEREST FOR THE TWO OR THREE CONVICTIONS TO BE
COUNTED AS ONE CONVICTION, THE COURT SHALL DETERMINE THAT THE APPLICANT IS NOT
A FIRST OFFENDER; IF THE COURT DOES NOT MAKE THAT DETERMINATION, THE COURT
SHALL DETERMINE THAT THE OFFENDER IS A FIRST OFFENDER.
(b) Determine whether criminal proceedings are pending
against the applicant;
(c) If the applicant is a first offender who applies
pursuant to division (A)(1) of this section, determine whether
the applicant has been rehabilitated to the satisfaction of the
court;
(d) If the prosecutor has filed an objection in accordance
with division (B) of this section, consider the reasons against
granting the application specified by the prosecutor in the
objection;
(e) Weigh the interests of the applicant in having the
records pertaining to the applicant's conviction sealed against the
legitimate needs, if any, of the government to maintain those
records.
(2) If the court determines, after complying with division
(C)(1) of this section, that the applicant is a first offender or
the subject of a bail forfeiture, that no criminal proceeding is
pending against the applicant, and that the interests of the
applicant in
having the records pertaining to the applicant's conviction or bail
forfeiture sealed are not outweighed by any legitimate
governmental needs to maintain those records, and that the
rehabilitation of an applicant who is a first offender applying
pursuant to division (A)(1) of this section has been attained to
the satisfaction of the court, the court, except as provided in
division (G) of this section, shall order all official records
pertaining to the case sealed and, except as provided in division
(F) of this section, all index references to the case deleted
and, in the case of bail forfeitures, shall dismiss the charges
in the case. The proceedings in the case shall be considered not
to have occurred and the conviction or bail forfeiture of the
person who is the subject of the proceedings shall be sealed,
except that upon conviction of a subsequent offense, the sealed
record of prior conviction or bail forfeiture may be considered
by the court in determining the sentence or other appropriate
disposition, including the relief provided for in sections
2953.31 to 2953.33 of the Revised Code.
(3) Upon the filing of an application under this section,
the applicant, unless the applicant indigent, shall pay a fee of
fifty
dollars. The court shall pay thirty dollars of the fee into the
state treasury. It shall pay twenty dollars of the fee into the
county general revenue fund if the sealed conviction or bail
forfeiture was pursuant to a state statute, or into the general
revenue fund of the municipal corporation involved if the sealed
conviction or bail forfeiture was pursuant to a municipal
ordinance.
(D) Inspection of the sealed records included in the order
may be made only by the following persons or for the following
purposes:
(1) By a law enforcement officer or prosecutor, or
the assistants of the law enforcement officer or prosecutor of either,
to determine whether the nature and character of
the offense with which a person is to be charged would be
affected by virtue of the person's previously having been
convicted of a crime;
(2) By the parole or probation officer of the person who
is the subject of the records, for the exclusive use of the
officer in supervising the person while the person on parole or
probation and in making inquiries and written reports as
requested by the court or adult parole authority;
(3) Upon application by the person who is the subject of
the records, by the persons named in that person's the application;
(4) By a law enforcement officer who was involved in the
case, for use in the officer's defense of a civil action arising
out of the officer's involvement in that case;
(5) By a prosecuting attorney or the prosecuting attorney's assistants of
the prosecuting attorney
to determine a defendant's eligibility to enter a pre-trial
diversion program established pursuant to section 2935.36 of the
Revised Code;
(6) By any law enforcement agency or any authorized
employee of a law enforcement agency or by the department of
rehabilitation and correction as part of a background
investigation of a person who applies for employment with the
agency as a law enforcement officer or with the department as a
corrections officer;
(7) By any law enforcement agency or any authorized
employee of a law enforcement agency, for the purposes set forth
in, and in the manner provided in, section 2953.321 of the
Revised Code;
(8) By the bureau of criminal identification and
investigation or any authorized employee of the bureau for the
purpose of providing information to a board or person pursuant to
division (F) or (G) of section 109.57 of the Revised Code;
(9) By the bureau of criminal identification and investigation or any
authorized employee of the bureau for the purpose of performing a criminal
history
records check on a person to whom a
certificate as prescribed in section 109.77 of the
Revised Code is to be awarded.
When the nature and character of the offense with which a
person is to be charged would be affected by the information, it
may be used for the purpose of charging the person with an
offense.
(E) In any criminal proceeding, proof of any otherwise
admissible prior conviction may be introduced and proved,
notwithstanding the fact that for any such prior conviction an
order of sealing previously was issued pursuant to sections
2953.31 to 2953.36 of the Revised Code.
(F) The person or governmental agency, office, or
department that maintains sealed records pertaining to
convictions or bail forfeitures that have been sealed pursuant to
this section may maintain a manual or computerized index to the
sealed records. The index shall contain only the name of, and
alphanumeric identifiers that relate to, the persons who are the
subject of the sealed records, the word "sealed," and the name of
the person, agency, office, or department that has custody of the
sealed records, and shall not contain the name of the crime
committed. The index shall be made available by the person who
has custody of the sealed records only for the purposes set forth
in divisions (C), (D), and (E) of this section.
(G) Notwithstanding any provision of this section or
section 2953.33 of the Revised Code that requires otherwise, a
board of education of a city, local, exempted village, or joint
vocational school district that maintains records of an
individual who has been permanently excluded under sections
3301.121 and 3313.662 of the Revised Code is permitted to
maintain records regarding a conviction that was used as the
basis for the individual's permanent exclusion, regardless of a
court order to seal the record. An order issued under this
section to seal the record of a conviction does not revoke the
adjudication order of the superintendent of public instruction to
permanently exclude the individual who is the subject of the
sealing order. An order issued under this section to seal the
record of a conviction of an individual may be presented to a
district superintendent as evidence to support the contention
that the superintendent should recommend that the permanent
exclusion of the individual who is the subject of the sealing
order be revoked. Except as otherwise authorized by this
division and sections 3301.121 and 3313.662 of the Revised Code,
any school employee in possession of or having access to the
sealed conviction records of an individual that were the basis of
a permanent exclusion of the individual is subject to section
2953.35 of the Revised Code.
Sec. 2953.36. Sections 2953.31 to 2953.35 of the Revised Code do not apply to
convictions when the offender is subject to a mandatory prison term,
convictions under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06,
2907.321, 2907.322, or 2907.323, former section 2907.12, or Chapter 4507.,
4511., or 4549. of the Revised Code, or a conviction for a violation of
a
municipal ordinance that is substantially similar to any section contained in
any of those chapters, CONVICTIONS OF AN OFFENSE OF VIOLENCE, CONVICTIONS
OF AN OFFENSE IN CIRCUMSTANCES IN WHICH THE VICTIM OF THE OFFENSE WAS UNDER
EIGHTEEN YEARS OF AGE, CONVICTIONS OF A FELONY OF THE FIRST OR SECOND
DEGREE, or bail forfeitures in a traffic case as
defined in Traffic Rule 2.
Section 2. That existing sections 2953.31, 2953.32, and 2953.36 of the Revised
Code are hereby repealed.
Section 3. Section 2953.32 of the Revised Code is presented in this act as
a composite of the section as amended by both Am. Sub. H.B. 566 and Am. Sub.
S.B. 160 of the 121st General Assembly,
with the new language of neither of the acts shown in capital letters.
Section 2953.36 of the Revised Code is presented in this act as
a composite of the section as amended by Am. Sub. H.B. 445, Am. Sub. H.B. 353,
and Am. Sub. S.B. 269 of the 121st General Assembly, with the new language of
none of the acts shown in capital letters. This is in recognition of the
principle stated in division (B) of section 1.52 of
the Revised Code that such amendments are to be harmonized where not
substantively irreconcilable and constitutes a legislative finding that such
is the resulting version in effect prior to the effective date of this act.
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