COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68817 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION ROBERT MUSSON : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 20, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-215,966 JUDGMENT : REVERSED AND VACATED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Ass't. Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: JACK R. DAY Attorney at Law 9735 Valley View Road Macedonia, Ohio 44056 - 2 - PER CURIAM: Plaintiff-appellant the State of Ohio appeals from the order of the Cuyahoga County Court of Common Pleas granting an application for expungement to defendant-appellee Robert Musson. The record reflects appellee was indicted on March 3, 1987 on two counts of violation of R.C. 2925.03, trafficking in marijuana. The indictment specifies the dates of the offenses as "November 25, 1986" and "December 16, 1986." Appellee initially pled not guilty to the charges; however, he subsequently changed his plea to no contest. On May 29, 1987, the trial court found appellee guilty of both counts. The trial court sentenced appellee to concurrent terms of incarceration of one year on each count but suspended sentence and placed appellee on two years of probation. The record reflects appellee successfully completed his probation. The trial court granted his early release on February 24, 1989. On December 2, 1993, appellee filed an application for expungement of his conviction pursuant to R.C. 2953.32. On May 25, 1994, the trial court referred the matter to the probation department. On December 6, 1994, appellant filed a brief in opposition to appellee's application, noting that the probation department - 3 - report indicated appellee had a 1986 conviction for driving under the influence of alcohol. On January 30, 1995, appellee filed a "supplemental motion to expunge record." Therein, he argued that since his DUI conviction was over ten years old, it should not be considered by the court. On March 1, 1995, the trial court granted appellee's application, stating that it had considered all the evidence presented to it on the matter as required by R.C. 2953.32(C)(1). Appellant has filed a timely appeal from the trial court order, arguing that appellee was not entitled to expungement because he was not a "first offender" as that term is defined in R.C. 2953.31(A). Appellant's argument has merit for two reasons. Initially, the indictment itself demonstrates appellee was not a "first offender" for purposes of R.C. 2953.32. The crimes to which appellee pled no contest were committed at least two weeks apart. Under those circumstances, this court has consistently held that a defendant cannot invoke the jurisdiction of the trial court. State v. Conroy (Oct. 31, 1991), Cuyahoga App. No. 59179, unreported; State v. Burks (Aug. 22, 1991), Cuyahoga App. No. 59040, unreported; State v. Bauknight (Feb. 1, 1990), Cuyahoga App. No. 58209, unreported; State v. Patino (Mar. 2, 1989), Cuyahoga App. No. 55681, unreported; State v. Saltzer (1985), 20 Ohio App.3d 277; see, also, State v. Cresie (1993), 93 Ohio App.3d 67. - 4 - Secondly, pursuant to R.C. 2953.31(A), a conviction for an offense such as driving under the influence of alcohol "shall be considered a previous or subsequent conviction" (emphasis added); there is no time limitation specified in the statute. Therefore, appellee did not meet the definition of a "first offender" on this basis as well. State v. May (1991), 72 Ohio App.3d 664; Chillicothe v. Herron (1982), 3 Ohio App.3d 468; see, also, State v. Lumaye (1992), 76 Ohio App.3d 823. Thus, the record reflects the trial court lacked jurisdiction to grant appellee's application for expungement. State v. Thomas (1979), 64 Ohio App.2d 141. Accordingly, appellant's assignment of error is sustained. The judgment of the trial court is reversed, and the order of expungement is vacated. - 5 - This cause is reversed and vacated. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .