White v. King

• Citation: 700 S.W.2d 152
• Decision Date: 29 October 1985
• Docket Number: No. WD,WD
• Parties: Jimmy L. WHITE, Appellant, v. Richard C. KING, Director of Revenue, Respondent. 36329.
• Court: Court of Appeal of Missouri (US)

Page 152

700 S.W.2d 152

Jimmy L. WHITE, Appellant, v. Richard C. KING, Director of Revenue, Respondent.

No. WD 36329.

Missouri Court of Appeals,

Western District.

Oct. 29, 1985.

Milton Harper, Powell, Seitz & Harper, Columbia, for appellant.

Paul Oesterreicher, Pros. Atty., Moberly, for respondent.

Before SHANGLER, P.J., and TURNAGE and BERREY, JJ.

SHANGLER, Presiding Judge.

The Director of Revenue determined that White was not eligible for a drivers license until ten years from October 27, 1983, the date of the third conviction against him for driving while intoxicated. The terms of § 302.060, RSMo 1978 mandate that the "director shall not issue [for ten years] any license hereunder ... [t]o any person who has been convicted more than twice of violating the laws of this state relating to driving while intoxicated." The records show that White has three convictions for the offense. White acknowledges the effect of the statute, but contends it was improperly applied against him.

White was convicted three times in a state court for driving while intoxicated: August 13, 1969 in Chariton County; January 16, 1978 in Chariton County; and October 27, 1983 in Randolph County. The conviction of August 13, 1969 was prosecuted under a Missouri Uniform Traffic Ticket and entered by the magistrate on the Appearance, Plea of Guilty and Waiver executed by the signature of the defendant White on the reverse sheet of that formal information. That record--nor any other--however, does not recite that White was represented by counsel, nor a knowing and voluntary waiver of the right to counsel. ¹ In fact, as the parties stipulate, the guilty plea was uncounseled. The magistrate assessed a fine of $100 and costs, but imposed no jail sentence.

White argues that the first conviction, that rendered on August 13, 1969 in Chariton County, may not be used to invoke the license forfeiture provision of § 302.060 because he was not then represented by counsel, nor did he waive counsel. White argues that an uncounseled DWI conviction can no more enhance a period of licensure ineligibility than enhance a criminal penalty. He argues in effect that the DWI convictions which precondition the license forfeiture under § 302.060 must satisfy the same standard of validity required of convictions to enhance criminal punishments. White cites Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) to sustain contention.

Baldasar decides that a prior uncounseled conviction could not be used to enhance punishment in a criminal case--specifically, to convert a subsequent misdemeanor into a felony with a prison term. Baldasar culminates the development of the principle, begun in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that the Sixth Amendment right to assistance of counsel in a criminal case is fundamental to a fair trial and is made applicable to the several states through the Fourteenth Amendment. Gideon rendered it unconstitutional to try a defendant for a felony in a state court unless he had counsel, or validly waived counsel. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) then decided that the admission of a prior uncounseled felony [a constitutionally infirm conviction under Gideon ] to enhance punishment was inherently prejudicial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) extended the right to counsel to cases of misdemeanor where a prison sentence is imposed. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) confirmed that Argersinger delineated the constitutional right to [appointed] counsel to cases where a prison term was imposed. Baldasar completed the analogy of principle by the decision that an uncounseled misdemeanor conviction may not be used with constitutional propriety to enhance punishment--to convert a subsequent misdemeanor into a felony with a prison term.

The principles of Burgett and Baldasar are applicable to punishment for driver offenses, so that a prior uncounseled misdemeanor DWI conviction may not predicate enhancement of a subsequent DWI misdemeanor into a felony. State v. Wilson, 684 S.W.2d 544, 546 (Mo.App.1984); see §§ 577.023.1(1) and 577.023.3, RSMo Cum.Supp. 1985. That rule of constitutional principle does not appertain to the proceeding before the Director of Revenue simply because that was a civil, not a criminal case, and the forfeiture of driver eligibility that determination imposed was not a criminal penalty, by imprisonment or otherwise. Tolen v. Missouri Department of Revenue, 564 S.W.2d 601, 602[2-6] (Mo.App.1978). The grant of a license to drive is an exercise of the police power of the state, and is subject to suspension or revocation as the law may provide. Williams v. Schaffner, 477 S.W.2d 55, 56 (Mo. banc 1972). The purpose of an enactment such as § 302.060 to deny or delimit driver licensure to persons underage, addicts, drunkards and recurrent intoxicated violators, is not to punish a licensee, but to protect the public. State v. Byerly, 522 S.W.2d 18, 21 (Mo.App.1975).

The gamut of decision from Gideon to Baldasar affirms and reaffirms that a conviction and imprisonment of an uncounseled defendant may not stand nor serve as predicate for an enhanced term of imprisonment in a subsequent criminal proceeding. That is the full range of the collateral effect developed constitutional principle accords to prior convictions rendered invalid by want of counsel. The order of the Director of Revenue to deny White eligibility to drive for ten years, albeit on the predicate of an uncounseled prior misdemeanor conviction, imposes a revocation of privilege and imposition of civil forfeiture, and not a criminal penalty. Quite simply, the rule in Baldasar that prior uncounseled misdemeanor convictions are without effect to enhance punishment by prison term in a subsequent proceeding has no application in a proceeding where no prison term was imposed. The rule in Baldasar has no application for an even more fundamental reason: the August 13, 1969 conviction in Chariton County did not result in imprisonment, but only in a money fine. There is no constitutional impediment to an uncounseled misdemeanor conviction where a prison term is not imposed. Argersinger 407 U.S. 25 at 37, 92 S.Ct. 2006 at 2012.

Thus, that White was uncounseled at the Chariton County conviction could not affect its efficacy in any subsequent proceeding--criminal or civil--where that conviction serves as the basis for enhancement of penalty or imposition of sanction.

However invalid an uncounseled conviction may be as a predicate for a subsequent enhancement of punishment which results in imprisonment, the conviction itself--unchallenged by habeas corpus or appeal or other timely remedy to avoid the judgment--remains intact as a prima facie adjudication. The fact of the Chariton County conviction, therefore, remains. State v. Wilson, 684 S.W.2d 544, 548[6, 7] (Mo.App.1984); State v. Henderson, 549 S.W.2d 566, 568 (Mo.App.1977). It is the fact of the prior convictions for driving while intoxicated under the laws of this state which invokes the mandate of the Director of Revenue under § 302.060 to forfeit the licensure of that driver for ten years, and not the validity of those convictions for collateral criminal law purposes.

White contends also that the conviction of August 13, 1969 was invalid because rendered in violation of then Rule 29.02 [now Rule 31.03]. The rule as then formulated provided:

Presence of Defendant, When Required

No person...