Kennedy v. STATE, DEPT. OF PUBLIC SAFETY, 100,737.
| Citation | 2005 OK CIV APP 35,114 P.3d 499 |
| Decision Date | 19 April 2005 |
| Docket Number | No. 100,737.,100,737. |
| Parties | Eric Lee KENNEDY, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
John C. Branch, Oklahoma City, OK, for Plaintiff/Appellee.
Jerry C. Blackburn, State of Oklahoma Department of Public Safety, Oklahoma City, OK, for Defendant/Appellant.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. Opinion by KEITH RAPP, Vice Chief Judge:
¶ 1 The trial court defendant, State of Oklahoma, ex rel. Department of Public Safety (DPS), appeals a judgment in favor of the trial court plaintiff, Eric Lee Kennedy (Kennedy), setting aside the revocation of his driver's license.
BACKGROUND
¶ 2 In February 2002, Kennedy was stopped by a Blanchard, Oklahoma police officer while driving his vehicle. The reason for the stop is not shown in the record and it does not appear from the record and testimony that any traffic citation was issued.1
¶ 3 The police officer searched the vehicle and discovered a "roach paper."2 Kennedy was then given a ticket citation for possession of marijuana.3 He was never advised of the consequences of the charge, either concerning the penalty or the effect on his driving privileges, by any official or court.
¶ 4 Kennedy did not appear in the Blanchard municipal court. His step-father, who is not an attorney, went to a clerk's office and paid the ticket fine.4 He did not appear before a judge. Although the ticket, and any disposition orders or judgments concerning the ticket, are not in evidence, the parties state that the city record shows a plea of nolo contendere.
¶ 5 The parties further state that thereafter Blanchard officials forwarded the ticket to DPS and that DPS issued a notice of revocation based upon 47 O.S.2001, § 6-205(A)(6).5 It is undisputed that simple possession of marijuana is a violation falling under Section 6-205(A)(6).
¶ 6 After receipt of the notice from DPS, Kennedy requested a DPS hearing for a modification of the suspension. After a hearing, the DPS declined to modify the revocation. Kennedy then filed this action in district court seeking either a modification of the revocation or nullification of the revocation. The trial court conducted a trial de novo.
¶ 7 In district court, DPS called the hearing officer as its only witness. No exhibits were offered or admitted into evidence. The hearing officer testified that he interviewed Kennedy and that Kennedy admitted to a recent use of marijuana and alcohol. The hearing officer decided not to modify the revocation for this reason.
¶ 8 Kennedy called his step-father as a witness. His step-father testified that he went to the Blanchard City Hall and paid the ticket to the clerk. He did not see a judge and he is not a lawyer. Next, Kennedy testified as to the stop, receipt of the ticket, and the absence of any advice as to the consequences of the charge. He never appeared before a court on the charge. Kennedy also admitted he was present at the DPS interview and substantially confirmed the statements of the hearing officer.
¶ 9 The district court entered a general ruling in favor of Kennedy. Neither party requested findings of fact or conclusions of law and the district court made none. DPS appeals and, as briefed here, DPS claims error in that the district court did not have jurisdiction, Kennedy's plea and fine constituted a conviction for purposes of Section 6-205(A)(6), and Kennedy's plea was properly entered.
KENNEDY'S MOTION TO DISMISS APPEAL
¶ 10 Kennedy seeks dismissal of this appeal as untimely. Kennedy, in advancing this argument, characterizes the trial court's minute order as sufficient to constitute a judgment meeting the statutory requirements for a judgment. 12 O.S.2001, § 696.3. The DPS appeal was filed more than thirty days after entry of this minute order, but timely when the date of the subsequent journal entry was filed.
¶ 11 Kennedy's motion is denied. The minute entry order is not, on its face, a final order. The trial court specifically provided that the recitals there were "all as per J.E."6 The minute order is not the final judgment document triggering the appeal time deadline. 12 O.S.2001, § 696.2(D).
STANDARD OF REVIEW
¶ 12 This appeal presents questions of law. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1.
ANALYSIS AND REVIEW
¶ 13 DPS first argues that the district court has no jurisdiction to entertain Kennedy's appeal. DPS cites 47 O.S.2001, § 6-211(A). In part, the statute reads:
A. Any person denied driving privileges, or whose driving privilege has been canceled, denied, suspended or revoked by the Department, except where such cancellation, denial, suspension or revocation is mandatory, under the provisions of Section 6-205 of this title, shall have the right of appeal to the district court as hereinafter provided. Proceedings before the district court shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings. The district court is hereby vested with original jurisdiction to hear said petition. (Emphasis added.)
¶ 14 DPS relies upon the emphasized language and Phillips v. State ex rel. Dept. of Public Safety, 1992 OK CIV APP 51, 831 P.2d 3. The Phillips Court ruled that a district court has no jurisdiction to hear an appeal from a driver's license revocation mandated by 47 O.S. Supp.1990 § 6-205(A)(2), based upon Section 6-211(A).7
¶ 15 Thus, in the context of Kennedy's case, there are two courses of action involving the DPS. The first is a revocation based upon a relevant conviction.8 The second is a modification of that revocation. In the latter case, Section 6-211 permits an appeal, but the merits of the revocation action are not to be considered. 47 O.S.2001, § 6-211(G). However, Section 211(G) speaks of a "hearing relating to a revocation pursuant to a conviction for an offense enumerated in Section 6-205" (and now adds Section 6-205.2).
¶ 16 In this Court's view, the district court in Section 6-205 conviction cases may review whether the driver is entitled to a modification, but in doing so, the propriety or merits of the revocation are not a part of the inquiry. The district court is concerned with and limited to whether the driver is entitled to driving privileges under the circumstances and facts in evidence. 47 O.S.2001, § 6-211(I).
¶ 17 The limitation imposed by preclusion of an appeal in conviction cases proceeds with the assumption that a conviction exists. Thus when, as in Phillips, a conviction has in fact occurred and a revocation of the convicted person's driving privilege is a consequence of the conviction, then the act of revocation is immune from judicial review according to the statute.
¶ 18 This immunity does not apply when the question is whether a conviction exists. Thus, if the driver is challenging the premise for the revocation, that is, the existence of a conviction, then the statute does not preclude an appeal on that narrow issue.9
¶ 19 Therefore, this Court holds that the district court has a limited range of jurisdiction to hear Kennedy's case. This review now proceeds accordingly.
¶ 20 The revocation imposed on Kennedy may be modified. 47 O.S.2001, § 6-205.1(A)(1). Section 6-205.1(A)(1) does not specify the criteria for modification. Section 6-211(I) directs the inquiry. The driving record is pertinent, as are facts, circumstances, and records relevant to whether the person is entitled to have driving privileges.
¶ 21 Here, the DPS hearing officer obviously was unimpressed with Kennedy's admissions to use of alcohol and marijuana subsequent to the Blanchard incident and use of marijuana as late as a few days before the hearing. No evidence was elicited showing that any legal or equitable reasons were presented at the DPS hearing to justify modification.
¶ 22 The district court hearing did no more than confirm what transpired before the DPS hearing officer. Again, no evidence before the district court supported modification. The district court, at the hearing conclusion, did not modify the revocation, but set it aside completely. Assuming that completely setting aside the revocation is equivalent to a modification of the revocation, such result was not warranted under the statute and evidence before the district court. Thus, it was error for the district court to "modify" the revocation by setting it aside.
¶ 23 The fact that the ticket was written for enforcement in municipal court is immaterial. 47 O.S.2001, § 6-205(A). Here, the record is devoid of proof from DPS of a conviction.10 Absent from the record are: (a) any showing that Blanchard even has an ordinance covering the charge; and (b) a judgment and sentence.
¶ 24 Moreover, municipal court procedures are the same as provided by law for misdemeanors, unless otherwise provided by law. 11 O.S.2001, §§ 27-113, 28-120. The record does not reflect whether Blanchard's ordinance — if one of the nature asserted exists — established a penalty that entitled Kennedy to a jury trial and, if so, whether that right was explained to him and knowingly waived by him. See 11 O.S.2001, § 27-119.
¶ 25 Next, the failure of proof due to those evidentiary gaps is compounded by the manner in which a disposition of the ticket was reached when the non-attorney step-father simply paid the fine.11 Thus, a serious question arises as to whether a conviction occurred.
¶ 26 Although the Court in State v. Bridwell, 1979 OK 37, 592 P.2d 520, was primarily concerned with whether the "conviction" there was final and whether the conviction that could be utilized in a professional license...
To continue reading
Request your trial
-
Lively v. IJAM, INC., 99,357.
... ... orders and whether they shipped out-of-state." He claims that he printed the online order ... ...