State v. Carter

955 P.2d 119, 264 Kan. 226, 1998 Kan. LEXIS 49
CourtSupreme Court of Kansas
DecidedMarch 6, 1998
DocketNo. 78,432
StatusPublished
Cited by1 cases

This text of 955 P.2d 119 (State v. Carter) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carter, 955 P.2d 119, 264 Kan. 226, 1998 Kan. LEXIS 49 (kan 1998).

Opinions

The opinion of the court was delivered by

Abbott, J.:

The State appeals on a question reserved, following dismissal of the complaint and discharge of defendant Terry L. Carter at the conclusion of the preliminary hearing. Carter was charged with driving while suspended, possession of a revoked license, and driving after being declared a habitual violator. The district court held that the Department of Revenue’s certificate of mailing, purporting to show that notice of suspension had been mailed to Carter, was not in compliance with the notice requirements of K.S.A. 1996 Supp. 8-255.

On October 22, 1996, Carter was charged with driving while suspended, in violation of K.S.A. 1996 Supp. 8-262, a level 9 felony; possession of a revoked driver’s license, in violation of K.S.A. 1996 Supp. 8-260, a level 9 felony; and driving after being declared a habitual violator, in violation of K.S.A. 1996 Supp. 8-287, a level 9 felony. The parties stipulated that Carter was operating a motor vehicle on the date in question. The State submitted the certification of Carter’s driving record, which included two documents [227]*227entitled "KANSAS DEPARTMENT OF. REVENUE — DRIVER LICENSING CERTIFICATE OF MAILING,” with a subheading on each stating that the original had been mailed to the last known address by the Driver Control Bureau/Division of Vehicles. Part of the notice on both documents was obliterated by the post office’s postage meter stamp. Below that was the date “10/14/93,” and following that was a computer-generated list, which included “Carter Terry. L, 821 6th St, Baldwin City Ks 66066.” At the bottom of the form are two boxes, one entitled “number of pieces listed by sender” showing “25” and “total number of pieces received at post office postmaster, per” also showing “25,” and adjacent thereto, some initials, apparently of a post office employee. There is a postmark for the “Topeka Ks State House Sta.” dated October 14,1993 at the top of the form. The other document was dated July 31, 1995, with a similar postmark for August 1,1995, showing 17 pieces listed by sender and received at post office. Both documents list the name and address of the same number of persons as the total number of pieces of mail received by the post office. Neither certificate of mailing is signed by any individual.

Carter’s counsel moved to dismiss, challenging the sufficiency of the two notices purportedly sent to Carter and arguing:

“[T]he notice is insufficient to satisfy die notice of K.S.A. 8-255 in as much as the certificate of mailing is not signed, verified, or approved by any other person or entity indicating that the important or pertinent notice of driving privileges was actually sent to the defendant.”

The State responded that nothing in 8-255(d) requires that notice be sent by certified mail, citing State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), for its holding that a copy of the order or other written notice of revocation or suspension need only be mailed to the last known address of the defendant to provide sufficient notice.

Carter’s counsel stated that she was not arguing for a requirement that notice be sent by certified mail, but reiterated: “What I’m saying is that the notice required to indicate that this mailing has been accomplished, the very notice itself, is insufficient because it isn’t signed by anyone.”

[228]*228The district judge considered Carter’s motion as a motion to discharge, concerning an evidentiary issue, and granted the motion, dismissing the complaint and discharging Carter. He stated:

“I have found that based on the evidence the State has presented that there has been a failure to show that this notice was sent or mailed to the defendant. I agree with Mr. Little [State’s counsel] that all that needs to be done is to show that it was mailed or sent, and I think that’s all that is required.
“However, from this exhibit, there’s no indication at all — there’s been a showing that the post office received these pieces — the Post Master, and supposedly I’m to infer that these were sent. I can’t make that inference from this matter.
“There would have to be some individual explaining to the Court that that type of verification then concluded the fact that these were actually mailed out, and I can’t make that assumption from the evidence or inference from this evidence.”

The discharge order provides the basis for the district court’s ruling as follows:

“That the portion of State’s Exhibit 1, the Certification of Driver’s Record, which is entitled Kansas Department of Revenue — Driver Licensing Certificate of Mailing is insufficient to satisfy the notice provisions of K.S.A. 1994 Supp. 8-255 inasmuch as said Certificate of Mailing is not signed, verified or approved by any person or entity indicating that the appropriate and pertinent notice of suspension of driving privileges was actually given to the defendant in writing as required by subsection (d),”

The State timely appealed.

The State submits that review of the district court’s interpretation of 8-255 is involved, so de novo review should apply, citing State v. Favela, 259 Kan. 215, 218, 911 P.2d 792 (1996). We agree.

Although the district court found the certificate of mailing not in compliance with the notice requirements of 8-255, the State argues that the following portion of 8-255(d) is the only statutory provision relevant here: “Upon suspending, revolting or disqualifying the driving privileges of any person as authorized by this act, the division shall immediately notify the person in writing.” We agree.

In State v. Jones, 231 Kan. 366, this court held that the State need only prove that it sent the notice to the licensee at the last known address according to the division’s records. Jones involved a misdemeanor violation of K.S.A. 1981 Supp. 8-262 (driving while suspended). The State appealed on a question reserved following [229]*229Jones’ acquittal after the State failed to show it had given any notice to Jones that his driver’s license had been suspended. The State argued that misdemeanor violation of K.S.A. 1981 Supp. 8-262 was a strict liability crime within K.S.A. 21-3204 (Ensley 1981).

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Related

Madison v. Kansas Department of Revenue
969 P.2d 259 (Court of Appeals of Kansas, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
955 P.2d 119, 264 Kan. 226, 1998 Kan. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carter-kan-1998.