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Can a Theft Conviction be Expunged if Restitution is Still Being Paid?

Expungement of Theft Charge Granted Where Restitution Still Owed

In May of 2002, the defendant entered a guilty plea to a single count of theft, a fourth-degree felony in Ohio in the Franklin County Common Pleas Court.

The trial court imposed a five-year period of community control including, among other conditions, the provision that appellee pay $2,000 in restitution and the balance of $32,562.47 restitution to two third-party insurance companies through the probation department and to pay court costs.

Ten years later, in January of 2002, the defendant filed an application for expungement of the conviction.  The prosecutor objected to the application, arguing that the defendant had not fully satisfied her obligation to pay restitution and court costs and that her application was therefore premature.  The defendant acknowledged that she had not completed payment of the court-ordered restitution to the two third-party insurance companies.

The trial court held a hearing and found that appellee had completed payment of all of the conditions of the community control order, but that she had not completed payment of the third-party ordered restitution, finding that the balance remaining for that restitution was $14,152 out of the original amount of $32,562.47.

Nonetheless, the Franklin County court found that appellee’s application for expungement should be granted since more than three years had passed since appellee had completed all of the provisions of community control.  The Franklin County court found that the third-party payments ordered to the insurance companies should not be a bar to expungement since the court had completely released appellee from any obligations under the community control provisions other than completion of the two third-party restitution orders made to liability insurance companies.

On appeal, the State argued that all obligations must be taken care of before there is an eligibility to expunge the record, and that, even though appellee had completed all obligations owed to the state, she still owed money to the third-party insurers.

Community control sanctions provide that “[f]ulfilling the conditions of a community control sanction does not relieve the offender of a duty to make restitution under section 2929.28 of the Revised Code.” R.C. 2929.25(E).

But the statute is silent about expungement. When the appellee has performed all conditions of community control and is released from all that control but still owes restitution, may expungement apply? That is the issue the Tenth District (Franklin County) Court of Appeals decided.

On appeal, the Court found that denying expungement is a continued punishment, with no benefit to a victim or private payer who is owed restitution. The entity who is owed has the best of both worlds.  If the expungement is granted, the defendant can be more likely to obtain a better job and more likely to have the means to pay the restitution, and the state will provide collection help.

State of Ohio v. Aguirre, 10th Dist. No. 12AP-415.

If you have an old case and you would like some advice regarding expungement, call us now for a free consultation with an Ohio expungement attorney.