State v. Graham

• Decision Date: 22 July 1988
• Docket Number: No. 61276,61276
• Citation: State v. Graham, 758 P.2d 247, 12 Kan.App.2d 803 (Kan. App. 1988)
• Parties: STATE of Kansas, Appellant, v. Dennis E. GRAHAM, Appellee.
• Court: Kansas Court of Appeals

Page 247

758 P.2d 247

12 Kan.App.2d 803

STATE of Kansas, Appellant, v. Dennis E. GRAHAM, Appellee.

No. 61276.

Court of Appeals of Kansas.

July 22, 1988.

Syllabus by the Court

1. The direction of K.S.A. 8-286 that the Kansas Department of Revenue, Division of Vehicles, certify the records of a habitual violator "forthwith" is directory and the Division's delay in certifying the records does not authorize the district court to dismiss a habitual violator proceeding.

2. The State's delay in filing a habitual violator petition cannot serve to protect the alleged offender unless the cause of action is barred by some statute of limitation.

3. The general civil statutes of limitation, including K.S.A. 60-514(3), are not applicable to a habitual violator action under K.S.A. 8-284 et seq. because the State's cause of action arises out of the governmental function of regulating highway safety.

4. The general criminal statute of limitation, K.S.A.1987 Supp. 21-3106, does not apply to a habitual violator action because the Habitual Violator Act, K.S.A. 8-284 et seq., does not define a "crime" as defined in K.S.A.1987 Supp. 21-3105.

5. Except for K.S.A.1987 Supp. 8-285, which defines habitual violator as a person with three or more convictions of specified offenses within a five-year period, no statute of limitation applies to habitual violator actions under K.S.A. 8-284 et seq.

Debra Barnett and Julie Wright Connolly, Asst. Dist. Attys., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellant.

No appearance by appellee.

Before BRAZIL, P.J., J. STEPHEN NYSWONGER, District Judge Assigned, and PAGE W. BENSON, District Judge Retired, Assigned.

BRAZIL, Presiding Judge:

The State appeals the trial court's ruling dismissing a habitual violator petition due to the failure of the Kansas Department of Revenue, Division of Vehicles, to certify the defendant's record forthwith under K.S.A. 8-286 and the failure of the Sedgwick County District Attorney to file the petition within the one-year statute of limitation. K.S.A. 60-514. We reverse.

On June 5, 1987, the Sedgwick County District Attorney's office filed a petition seeking to have Dennis Graham declared a habitual violator under K.S.A.1987 Supp. 8-285. Attachments to the petition indicated the Kansas Department of Revenue, Division of Vehicles (Division), as required by K.S.A. 8-286, had certified to the district attorney on August 21, 1986, that its records showed Graham was a habitual violator under 8-285. After receiving a new address for Graham, the Division again certified those records on March 10, 1987.

At the hearing on the petition, Graham stipulated he had been convicted as follows: (1) on November 21, 1983, for driving while his license was suspended; (2) on February 24, 1984, for driving under the influence of alcohol and/or drugs and while his license was suspended; and (3) on December 26, 1985, for leaving the scene of a non-injury accident. These convictions satisfy the requirements of K.S.A.1987 Supp. 8-285 to make Graham a "habitual violator." However, Graham claimed the State had taken too long to prosecute him under K.S.A. 8-286. He also claimed the last conviction was not certified as required by 8-286. The trial court dismissed the petition, holding the Division had not certified the records "forthwith" as required by K.S.A. 8-286 and the petition had been filed too late, after the one-year statute of limitation of K.S.A. 60-514 had run.

In its brief, the State asserts for the first time that Graham's third conviction occurred not on December 26, 1985, but instead on June 26, 1986, allegedly the date Graham was sentenced following the conviction. However, as the State concedes, this is not clear from the record on appeal. Thus, we will accept December 26, 1985, the date stipulated by the parties at trial, as the date of the last conviction.

1. Did the Division fail to certify Graham's records forthwith?

K.S.A. 8-286 provides in pertinent part:

"Whenever the files and records of the division shall disclose that the record of convictions of any person is such that the person is an habitual violator as prescribed by K.S.A. 8-285 the division forthwith shall certify a full and complete abstract of such person's record of convictions to the district or county attorney of the county where such person resides, as disclosed by the records of the division.... Upon receiving said abstract, the district or county attorney forthwith shall commence prosecution of such person in the district court of such county, alleging such person to be an habitual violator."

K.S.A.1987 Supp. 8-285 defines habitual violator as a person who has been convicted three or more times of certain listed offenses within a five-year period. In reaching its decision to dismiss the petition here, the trial court explained its reasoning as follows:

"The legislature has established this as a civil redress of a wrong ... [and] even though it's captioned as a civil case, carries literally a penal result. Now, the statute says, and I quote, 'The Division forthwith shall certify.' ... Not meaning to be facetious, I don't think any way that it might have been scrivened would make any difference in the legislature's intent, and that is that it is to be timely lodged against a citizen. Now, this was not lodged for a period of approximately 18 months.... I feel that the Vehicle Department should be strictly required to comply with the law.

"I'm going to make the finding that the Motor Vehicle Department has not complied forthwith as declared by K.S.A. 8-28, and that this show cause order should be and is dismissed."

By counting all eighteen months from Graham's third conviction to the filing of the petition, the court considered not only the delay in the Division's action, which included the delay of more than six months between the Division's first and second certification apparently caused by an incorrect or out-of-date address in the Division's records, but also the district attorney's delay in filing the petition after receiving the Division's second certification of Graham's record. Regarding Graham's address, we note that K.S.A. 8-248 requires the holder of a driver's license to notify the Division in writing of his new address within ten days whenever he moves. See State v. Moffett, 240 Kan. 406, 408, 728 P.2d 1330 (1986) (Division should send notice of suspension to address shown on application or license or to last address received under K.S.A. 8-248).

One previous case has considered the significance of the legislature's use of "forthwith" in K.S.A. 8-286. In State v. Garton, 2 Kan.App.2d 709, 709-10, 586 P.2d 1386 (1978), Garton was in prison when the Division certified his record to the county attorney, who waited thirteen months until Garton was released to file the habitual violator petition. In response to Garton's claim the county attorney had not followed K.S.A. 8-286, the court said:

"The stated purpose of the act (K.S.A. 8-284) is not to benefit a habitual violator; rather it is to provide maximum safety for all people who use the public highways by depriving habitual violators of the privilege of operating motor vehicles on the public highways of this state. We view the term forthwith as being a directive to the county attorney to carry out his duty to the public by removing habitual violators from public highways at the earliest opportunity. The failure to do so could possibly result in a mandamus or ouster action. We do not view the legislative intent as being a directive to discharge the defendant if the county attorney fails to file the action forthwith. As we view it, the word forthwith is directory and not mandatory, for it gives the county attorney directions for the proper, orderly and prompt conduct in carrying out legislative intent and is not followed by words of absolute prohibition. Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968).

"In the absence of substantial prejudice, the lapse of time between a criminal act and the filing of charges is no defense if the charge is filed prior to the expiration of the statute of limitations. United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971); United States v. Freeman, 412 F.2d 1181 (10th Cir.1969); Walters v. Williams, 474 P.2d 661 (Okla.Crim.App.1970). Although not purely a criminal case, the case at bar was well within the statute of limitations." 2 Kan.App.2d at 710-11, 586 P.2d 1386.

This interpretation of "forthwith" would apply to the statute's directions to the Division as well as to district and county attorneys. In our case, Graham did not claim he had been prejudiced by the delay between his third conviction and the filing of the petition against him. Under Garton, absent some prejudice, dismissal is not an appropriate remedy for the Division's tardiness. The trial court was wrong to dismiss the petition on the ground the Division had not forthwith certified its records to the district attorney.

Furthermore, it is questionable that the prejudice exception referred to in Garton is applicable to habitual violator actions. Five years after Garton was decided, our Supreme Court held that a proceeding under K.S.A. 8-284 et seq. is civil, so the State's appeal was not barred although the trial court had found the evidence against the defendant to be insufficient. State v. Boos, 232 Kan. 864, 867-70, 659 P.2d 224 (1983). Thus, reliance on the prejudice exception barring prosecution in criminal cases before the statute of limitation had run would not be appropriate.

In civil cases, "[t]he rights of a state are not lost through laches, estoppel or inaction of public officials." Riggan v. Director of Revenue, 203 Kan. 129, 131, 453 P.2d 52 (1969). In Riggan, the court held the State could resume efforts to collect unpaid sales tax from a retailer even after taking no action for over seven years. 203 Kan. 129, 453 P.2d 52, Syl. p 3. The State's...