Earlier this month, the Ohio Supreme Court heard oral arguments in State of Ohio v. Colton Dye, Case Number 2016-1395. The issue before the high court was whether a trial court must wait until the applicable statute of limitations has expired before sealing an individual’s record of a non-conviction.
Under Ohio law, eligible offenders may file a motion to seal their record of conviction if the offense itself is sealable and so long as the offender has waited the appropriate time to seal the record. For misdemeanor convictions, offenders must wait at least one year after their probation terminates before they are eligible to file to seal the conviction. The waiting period to seal a felony conviction is three years after probation terminates.
A charge dismissed with prejudice means the prosecutor cannot re-file the charges. However, if a charge is dismissed without prejudice, a prosecutor can re-file the charges so long as the prosecutor is not time-barred from doing so (i.e., so long as the statute of limitations has not expired).
In Colton Dye’s case, the prosecutor dismissed charges of arson, aggravated menacing, menacing, criminal damaging, and domestic violence due to lack of evidence. However, the charges were dismissed without prejudice.
When Colton filed to seal the charges from his record, (i.e., the non-convictions), the prosecutor successfully argued he had to wait until the statute of limitations ran until he was eligible to have his record sealed.
R.C. 2953.52 outlines the requirements to have records sealed and states the court must determine whether the charges were dismissed without prejudice, and if so, when the statute of limitations has expired.
The statute further states if the charge was either dismissed with prejudice or dismissed without prejudice and the statute of limitations has expired, the court shall seal the record, assuming other requirements are met.
In Colton Dye’s case, it is clear the court is not required to seal the record until the statute of limitations had expired. However, may the court seal the record under those circumstances? A plain reading of the statute suggests the court may use its discretion to seal the record of non-conviction when there are no other charges pending against the offender, as in Colton’s case. However, the Fairfield County Municipal Court and Fifth District Court of Appeals disagreed, arguing Colton had to wait two years from the date he allegedly committed the offenses.
If the Ohio Supreme Court upholds the decision of the Fifth District, moving forward, a good criminal defense attorney will ensure the prosecutor dismisses the charge with prejudice so that the offender may seal the non-conviction immediately. The benefits of sealing a non-conviction are obvious and an eligible person against whom charges were dismissed should not have to wait years before he or she is eligible to seal the dismissed charge.
If you need representation for sealing a criminal conviction or non-conviction, feel free to contact the experienced criminal defense attorneys at Rittgers & Rittgers at 513-496-0134 for a free consultation.