Surber v. Director of Revenue, WD 60099.

• Decision Date: 04 June 2002
• Docket Number: No. WD 60099.,WD 60099.
• Parties: Christopher SURBER, Respondent, v. DIRECTOR OF REVENUE, Appellant.
• Court: Missouri Court of Appeals

75 S.W.3d 904

Christopher SURBER, Respondent, v. DIRECTOR OF REVENUE, Appellant.

No. WD 60099.

Missouri Court of Appeals, Western District.

June 4, 2002.

Appeal from the Circuit Court of Clay County, A. Rex Gabbert, Judge.

Jeremiah W. (Jay) Nixon, Atty. Gen., Kevin M. Johnson, Asst. Atty. Gen., Jefferson City, for Appellant.

Thomas Richard Bellmann, Kansas City, for Respondent.

PAUL M. SPINDEN, Chief Judge.

The director of the Department of Revenue appeals the circuit court's reinstatement of Christopher Surber's driving privileges. The director contends that the circuit court lacked jurisdiction to reinstate Surber's driving privileges because Surber did not file his petition for review within the statutory deadline. We agree and remand to the circuit court.

On December 4, 2000, Surber received notice from the director that she was revoking his driving privileges for one year, pursuant to § 577.041, RSMo 2000, on the ground that he had refused to submit to a chemical test. On January 4, 2001, Surber filed a petition asking the circuit court for a hearing pursuant to § 577.041.

The director contends that the circuit court should have dismissed Surber's petition for lack of subject matter jurisdiction because Surber filed his petition late. Failure to file a petition for review within a statutory deadline deprives the circuit court of subject matter jurisdiction. Randles v. Schaffner, 485 S.W.2d 1, 2-3 (Mo.1972). The 30-day time limit of § 302.311, RSMo 2000, applies to petitions filed under § 577.041 seeking review of revocations for refusal to take a chemical test. Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990).

Section 302.311 says:

[I]n the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked.

The 30-day period begins running on the day that the director mails or delivers the notice to the licensee. Grate v. Director of Revenue, 932 S.W.2d 918, 919 (Mo.App.1996).

Surber admits that he received notice of the director's revocation of his license on December 4, 2000; hence, although the record does not state when the director mailed or delivered the revocation notice to Surber, Surber certainly had no more time after January 3, 2001, in which to file a petition for review. Surber did not file his petition for review until January 4, 2001, so his petition was late.¹ The circuit court had no authority over the case...