Higgins v. Director of Revenue

778 S.W.2d 24, 1989 Mo. App. LEXIS 1470, 1989 WL 120672
CourtMissouri Court of Appeals
DecidedOctober 16, 1989
Docket16296
StatusPublished
Cited by10 cases

This text of 778 S.W.2d 24 (Higgins v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higgins v. Director of Revenue, 778 S.W.2d 24, 1989 Mo. App. LEXIS 1470, 1989 WL 120672 (Mo. Ct. App. 1989).

Opinion

HOLSTEIN, Judge.

This is an appeal from an order amending a previous order granting respondent Michael John Higgins a limited hardship driving privilege. § 302.309.3. 1 The amended order was entered more than thirty days after the original order. For the reasons discussed below, the amended order is reversed.

On December 15, 1988, Higgins filed an application for a limited hardship driving privilege. The application alleged that he was notified on May 23, 1988, that his driving privileges were revoked for one year beginning May 11, 1988. The application also alleged that the revocation had resulted in undue hardship in Higgins’ ability to earn a livelihood. He attached a copy of proof of financial responsibility. Also attached to and incorporated as part of the application is what purports to be a “True and Accurate” copy of his driving record, although the document has no signature of any certifying official. The driving record reflected six different traffic convictions since March 3, 1987. The most recent was a March 19, 1988, conviction for driving while his operator’s license was *25 suspended. According to the application, Higgins had accumulated a total of thirty four points. See § 302.302, RSMo 1986.

On December 16, 1988, a hearing was held and an order entered granting Higgins’ application for hardship driving privileges. It provided, “This limited driving privilege is for the period stated in the revocation notice from the Department of Revenue (i.e., one year from May 11, 1988) unless hereafter revoked because of violation of the laws by Petitioner after the date of this order.”

On February 22,1989, a motion to amend the order was filed by Higgins. It alleged that the driving record filed with the original application “did not accurately reflect” his latest revocation which resulted from a November 15, 1988, plea of guilty to a traffic violation in Pettis County. He complained that the Department of Revenue had “failed to put the revocation for the November 15, 1988 guilty plea on his driving record until January 31, 1989,” causing him to believe “that the latest revocation on his record occurred on May 11, 1988.” Higgins sought an amendment of the order granting a hardship driving privilege until January 31, 1990. No certified copy of the corrected driving record was ever filed. The motion did not reveal the nature of the November 15, 1988, traffic conviction. Documents filed later by the Director indicated there were two convictions. One was for driving while Higgins’ operator’s license was suspended and the other was a “miscellaneous” traffic offense. The convictions resulted in an assessment of an additional fourteen points. On February 24, 1989, an amended order was filed extending the period of hardship driving privilege to January 31, 1990.

On March 13, 1989, the Director filed a motion to intervene and to set aside the amended order of February 24, 1989. That motion claimed, “As the original order was entered on December 16, 1988, it became final on January 15, 1989 and the Court had no jurisdiction to amend the order.” It further asserted, “A person whose driving privilege in Missouri has been suspended or revoked is only entitled to one limited driving privilege within five years.... Section 302.309.3(5)(d) RSMo. (Supp.1988). Amending a previous grant of Hardship Driving Privilege circumvents this law.” On the same date, March 13, the Director was permitted to intervene. On March 23, 1989, the Director’s motion to set aside the amended order was overruled. This appeal followed.

The Director relies on two cases in support of his contention that the order entered February 24, 1989, should be reversed, Robinson v. Director of Revenue, 762 S.W.2d 872 (Mo.App.1989), and Weir v. Director of Revenue, 750 S.W.2d 80 (Mo. App.1988).

In Robinson the trial court granted a hardship driving privilege for one year beginning July 30, 1985. 762 S.W.2d at 873. On March 21, 1988, under a “continuing jurisdiction” theory, the trial court amended the July 30, 1985, order extending the hardship driving privilege to July 24, 1994. Id. On April 15, 1988, the Director moved to set aside the March 21, 1988, order. Id. On April 19, 1988, the trial court overruled the Director’s motion. After noting that the trial court premised its amendment on continuing jurisdiction, the appellate court stated, “Even if we assume that the trial court’s grant of hardship driving privileges on July 30, 1985, was proper, the privileges expired one year from that date.” Id. at 875. The trial court was. reversed. The opinion stopped short of actually holding that “continuing jurisdiction” exists and, if so, the circumstances under which it may be exercised.

In Weir a judgment granting hardship driving privileges was rendered April 24, 1987. The Director filed a “motion to revoke” on May 28, 1987, which was overruled on June 24, 1987. The Director filed a notice of appeal on July 13, 1987. The court held that the judgment of April 24, 1987, became final thirty days after being entered. 750 S.W.2d at 81-82; Rule 81.-05(a). 2 The appeal was dismissed as untimely. Id. at 82. In reaching its decision *26 the court said, “The Director assumes that the authority of the court to enforce the hardship driving limitations contained in the April 24, 1987 order in some manner withdraws the finality which attaches to the original judgment. We reject such an assumption as being unsupported by any legal authority.” Id.

Weir illustrates that a judgment entered in a case involving an application for hardship driving privilege is like all other judgments with respect to when the judgment becomes final. Higgins’ brief attempts to distinguish Weir, claiming that the case only decided the question of finality of the judgment for purposes of appeal, but not finality of the judgment for other purposes. Such distinction is not supported by any case law, rules, statutes or any sound reason.

Respondent seeks to find support for his position in Boulware, Op.Att’y Gen. No. 291 (1964). An opinion of the attorney general is not binding on the courts or the citizenry, but it may be, and often is, persuasive. Mesker Bros. Indus, v. Leachman, 529 S.W.2d 153, 158 (Mo.1975). The Boulware opinion notes that the statute authorizes the court to “grant such limited driving privilege as the circumstances of the case may justify.” § 302.309.3(2). The opinion goes on to say that if an applicant for a hardship driving privilege violates the terms and conditions of the order, “[t]he court must retain jurisdiction to revoke the order in the event of violation or to modify it if there should be a change in circum stances.” The opinion does not discuss the statutes and rules relating to finality of judgments.

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Bluebook (online)
778 S.W.2d 24, 1989 Mo. App. LEXIS 1470, 1989 WL 120672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-director-of-revenue-moctapp-1989.