COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                            NO. 78502
STATE OF OHIO                 :          ACCELERATED
                              :         JOURNAL ENTRY
          Plaintiff-appellant :              AND
                              :            OPINION
        -vs-                  :
                              :
HENRY HENYARD                 :
                              :
          Defendant-appellee  :
DATE OF ANNOUNCEMENT
    OF DECISION:                   FEBRUARY 22, 2001
CHARACTER OF PROCEEDING:           Civil appeal from the
                                   Court of Common Pleas
                                   Case No. CP-CR-211326
JUDGMENT:                          Reversed and Vacated
DATE OF JOURNALIZATION:
APPEARANCES:
For Plaintiff-Appellant:           WILLIAM D. MASON, ESQ.
                                   CUYAHOGA COUNTY PROSECUTOR
                                   BY: LISA REITZ, ESQ.
                                   ASSISTANT COUNTY PROSECUTOR
                                   8Th Floor, Justice Center
                                   1200 Ontario Street
                                   Cleveland, Ohio 44113
For Defendant-Appellee:            HENRY HENYARD, PRO SE
                                   11109 Parkview
                                   Cleveland, Ohio 44104
ANN DYKE, J.:
                               -2-
     Appellant, the State of Ohio, is appealing the trial court's
sealing the record of conviction of appellee, Henry Henyard.  For
the following reasons, we reverse and vacate the expungement order.
     Appellee pled guilty to three counts of sexual battery, R.C.
2907.03, and one count of felonious assault, R.C. 2903.11.  On May
28, 1987, he  was sentenced  to 3 to  15 years  on the  felonious
assault count, and 2 years  on each sexual battery count, to  run
concurrently.  The  prison time was  suspended, and appellee  was
sentenced to three years probation.  The probation expired on May
28, 1990.
     On May 30, 2000, appellee filed a motion to seal the  record
pursuant to R.C. 2953.32.  The motion contained a certificate  of
service, stating the prosecutor  had been served, but it was  not
signed by  appellee or dated.   The court ordered an  expungement
report from the probation department.  The court granted the motion
to seal without a hearing, on August 3, 2000.  Appellant filed  a
brief in opposition to appellee's motion on August 14, 2000.
     Appellant's sole assignment of error states:
     TRIAL COURT LACKS JURISDICTION TO CONSIDER A MOTION  TO
     SEAL A RECORD FOR SEXUAL BATTERY, R.C. 2907.03, AS R.C.
     2953.36(B) EXCLUDES SEXUAL  BATTERY FROM BEING  SEALED.
     (R.C. 2953.36(B), FOLLOWED.)
     The current version of R.C. 2953.36 provides:
     Sections 2953.31 to 2953.35 of the Revised Code do  not
     apply to any of the following:
     . . .
     (B) Convictions under section 2907.02, 2907.03 ...
                               -3-
The version of R.C. 2953.36 effective before December 1994 did not
exclude sex-related offenses from  being expunged.  Appellee  was
convicted before December 1994.  He was discharged on May 28, 1990,
so he was eligible to apply for expungement on May 28, 1993.   He
did not actually apply for expungement until May 30, 2000,  after
the law excluding sex-related offenses from expungement went into
effect.
     R.C. 2953.36,  as  effective  December 1994,  can  apply  to
offenders who were convicted before December 1994, but who by law
could not file motions to seal their records of conviction  until
after December 1994. State v. Hartup (1998), 126 Ohio App.3d 768;
State v. Davenport (1996), 116  Ohio App.3d 6.  R.C. 2953.36,  as
effective December 1994, can also apply to offenders who could file
motions to seal their records before December 1994, but who did not
file  such motions until  after December 1994.   State v.  Heaton
(1995), 108  Ohio App.3d  38; State  v. Bottom  (Feb. 29,  1996),
Licking App. No. 95 CA 101, unreported; State v. Glending (Oct. 8,
1998) Cuyahoga App. No. 74066, unreported.  Accordingly, the trial
court erred in granting expungement when appellee was not eligible,
as he was convicted of violations of R.C. 2907.03.
     Appellant's assignment of error is sustained.
     The judgment ordering expungement is reversed and vacated.
                               -4-
     This cause  is reversed and vacated  to the lower court  for
further proceedings consistent with this opinion.
     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.
TIMOTHY E. MCMONAGLE, P.J.,  AND
ANNE L. KILBANE,  J.,     CONCUR
                                             ANN DYKE
                                               JUDGE
N.B. This entry is an announcement of the court's decision.   See
App.R.22(B), 22(D) and 26(A); Loc.App.R.22.  This decision will be
journalized and will become  the judgment and order of the  court
pursuant to App. R. 22(E) unless a motion for reconsideration with
supporting brief, per App.R. 26(A), is filed within ten (10) days
of the announcement of the court's decision.  The time period for
review by the Supreme Court of  Ohio shall begin to run upon  the
journalization of  this court's announcement  of decision by  the
clerk per  App.R.  22(E).   See,  also S.Ct.Prac.R.  II,  Section
2(A)(1).
 
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