State v. Knittel
Decision Date | 15 July 1981 |
Docket Number | Cr. N |
Citation | 308 N.W.2d 379 |
Parties | The STATE of North Dakota, Plaintiff and Appellant, v. Terry Dirk KNITTEL, Defendant and Appellee. o. 765. |
Court | North Dakota Supreme Court |
Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellant.
Draeb & Schwartz, Hebron, for defendant and appellee; argued by Ronald Schwartz, Hebron.
The appellant, State of North Dakota, appeals from a judgment of acquittal entered by the County Court with Increased Jurisdiction for Morton County in favor of the defendant, Terry Knittel. Appeal dismissed.
On October 16, 1980, Knittel pleaded guilty to driving while under the influence of alcohol. Pursuant to his conviction, the Driver's License Division of the State Highway Department sent notice of "Opportunity for Hearing" on the suspension of his license to Knittel at his correct address dated October 23, 1980. An affidavit of mailing this notice is part of the record. On November 12, 1980, when no reply was received, an order of suspension suspending his license for 49 days was sent to Knittel. An affidavit of mailing this order is also a part of the record.
Subsequently, on November 29, 1980, Knittel was stopped for driving through a stop sign. A check of his driving record showed that his license was suspended. As a result he was issued citations for failing to stop at a stop sign and for driving a motor vehicle while his driver's license was suspended.
Knittel had a trial on the latter charge on January 5, 1981. The State called the deputy sheriff who issued the citations. The notice of hearing, order of suspension, and the computer printout recording Knittel's suspension were introduced into evidence. At the close of the State's case, Knittel moved to dismiss the complaint on the ground that the State failed to prove its case; specifically, alleging that the State did not prove Knittel received a notice that his license was suspended or about to be suspended and that he could have a hearing on the issue of his driver's license suspension. The State argued that the affidavits of mailing were sufficient proof that he received notice of opportunity for a hearing and the order of suspension, even though the notices were sent by regular mail. The court continued the case until January 29, 1981, so briefs could be submitted on the motion. The court denied Knittel's motion when it reconvened. Knittel took the stand and testified that he did not receive the notice of the opportunity for hearing or the order of suspension. When Knittel finished testifying, defense counsel renewed the motion to dismiss on the basis of a lack of due process asserting Knittel had not received notice of the opportunity for a hearing or the order of suspension. At this time, the motion to dismiss was granted and the trial court entered its judgment entitled "Judgment of Acquittal", the last paragraph of which reads:
"IT IS HEREBY ORDERED, that the within action be, and the same is hereby DISMISSED upon the merits, the defendants bail bond is hereby exonerated and the defendant discharged."
The State now seeks to appeal from that judgment. In State v. Flohr, 259 N.W.2d 293 (N.D.1977), we said, 259 N.W.2d at 295.
The United States Supreme Court, in Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 52 L.Ed.2d 80 (1977), said:
432 U.S. at 30, 97 S.Ct. at 2145.
The United States constitutional guarantee against double jeopardy found in the Fifth Amendment, is applicable to the states through the due process clause of the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980).
From an examination of the transcript of the trial, we conclude that the trial court granted Knittel's motion to dismiss because it believed that Knittel did not receive notice of the opportunity for a hearing or notice of the suspension and that this lack of notice deprived him of due process of law. The court said:
In United States v. Appawoo, 553 F.2d 1242 (10th Cir. 1977), the United States Court of Appeals for the Tenth Circuit allowed a government appeal from a "judgment of acquittal" entered by the trial court after it had received evidence. The court said:
A like result was reached in United States v. Gonzales, 617 F.2d 1358 (9th Cir. 1980), cert. den. --- U.S. ----, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980), where the court said:
In the present case the trial court granted Knittel's motion to dismiss based upon a constitutional ground; a lack of due process. The court did, however, reach a factual determination that Knittel had not received notice of the opportunity for hearing or of the suspension.
To determine whether or not this factual determination bars reprosecution of Knittel because of the double jeopardy clause, we must first determine whether or not the trial court's conclusion of law was erroneous or correct. Were the trial court incorrect in its conclusion that due process requires actual notice, the factual determination of the issue of whether or not Knittel received actual notice would be irrelevant. Under such circumstances, the State could properly appeal the dismissal and Knittel could be reprosecuted without violating the double jeopardy clause. United States v. Gonzales, supra, 617 F.2d at 1362. If the court were correct in its conclusion that due process requires more than sending notice by regular mail, its factual findings that Knittel did not receive notice would bar reprosecution as this would be a "resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977).
This case involves a collateral attack on the determination made by the Driver's License Division of the State Highway Department to suspend Knittel's driver's license. Knittel contends that the suspension was improper as the method of service of the notice of opportunity for hearing upon him was deficient and that the driver's license division lacked jurisdiction over him because of that deficient service and hence its order of suspension was void. We agree.
It is now beyond question that due process requires notice and opportunity for a hearing before the State may suspend a driver's license except in emergency situations. State v. Sinner, 207 N.W.2d 495, 499 (N.D.1973). In State v. Hagstrom, 274 N.W.2d 197 (N.D.1979), we held that the State did not need to prove...
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