State v. Marshall

845 P.2d 659, 252 Kan. 415, 1993 Kan. LEXIS 8
CourtSupreme Court of Kansas
DecidedJanuary 22, 1993
DocketNo. 67,878
StatusPublished
Cited by1 cases

This text of 845 P.2d 659 (State v. Marshall) 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. Marshall, 845 P.2d 659, 252 Kan. 415, 1993 Kan. LEXIS 8 (kan 1993).

Opinion

The opinion of the court was delivered by

McFarland, J.:

This is an appeal by the State on a question reserved pursuant to K.S.A. 22-3602(b)(3).

On November 3, 1991, Tyrone Marshall was stopped for speeding by a Kansas highway patrolman operating in Geary County. A drivers license check on Marshall’s Louisiana license revealed that the license had been suspended. Marshall was charged with speeding (K.S.A. 8-1336[a][3]) and driving while his license was suspended (K.S.A. 8-262[a][l]). The Geary County Attorney’s Office requested specific license information from Louisiana, including the record, order of suspension, and proof of mailing of the order to defendant. Louisiana complied by sending a packet of information. Included therein was a record showing the license had been suspended pursuant to the Nonresident Violator Compact (Compact) (La. Rev. Stat. Ann. Tit. 32 § 1441 et seq. [West 1989]). In Kansas the Compact is found at K.S.A. 8-1219. Louisiana suspended the license based upon a report from Illinois that defendant had failed to appear on a speeding charge.

[416]*416The case was called for trial before a district magistrate judge on December 16, 1991. Only the driving while license suspended charge was contested. Defendant was convicted on both charges but appealed only the driving while license suspended charge to the district court.

The trial before the district court was held on February 18, 1992. The parties stipulated to the following facts: (1) Prior to the date in the complaint, the State of Louisiana suspended the defendant’s driver’s license; (2) the defendant drove his vehicle in Geary County, Kansas, on the date alleged; (3) the State had requested a certified driver’s record including proof of mailing to defendant of the order of suspension; and (4) the packet received from Louisiana contained no certificate of mailing of the suspension order to the defendant. The court held that the lack of proof of mailing was a fatal deficiency in the State’s case and entered its order of acquittal. The State appeals, on a question reserved, from the court’s order relative to the need for the State to prove mailing of the Louisiana order to the defendant.

In State v. Price, 247 Kan. 100, 103-04, 795 P.2d 57 (1990), we held:

“Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether or not error has been committed by the trial court. Appeals on questions reserved have generally been accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. Conversely, we have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. State v. Hudon, 243 Kan. 725, 726, 763 P.2d 611 (1988).”

We are satisfied that the issue presented herein meets the criteria warranting review.

The notice in question was issued by the State of Louisiana Department of Public Safety and Corrections and states:

[417]*417“DATE OF THIS NOTICE 05/11/91 OID/011624/001
“OFFICIAL NOTIFICATION ON WITHDRAWAL OF DRIVING PRIVILEGES
“MARSHALL TYRONE
6432 EADS ST
NEW ORLEANS LA 70122
“LICENSE NO. 005569772 CITATION NUMBER 0000905111 VIOLATION OUT OF STATE AFFIDAVITS VIOLATION DATE 12/20/90 COURT ILLINOIS
“THIS STATE FORMALLY ENTERED INTO THE NON-RESIDENT VIOLATOR’S COMPACT AS PROVIDED BY R.S.32:1441 THROUGH R.S.32:1446, EFFECTIVE JANUARY 1, 1976.
“THIS OFFICE HAS BEEN NOTIFIED BY A MEMBER STATE THAT YOU FAILED TO APPEAR IN THE CLERK OF THE CIRCUIT CT. BOX 116, MOUND CITY, IL 62063 (618) 784-9300 (VIOLATION: SPEEDING) SEQ #1 AS REQUIRED BY LAW.
“IF FOR SOME REASON THE INFORMATION FROM THIS STATE IS INCORRECT, YOU HAVE 30 DAYS FROM THE DATE OF THIS NOTICE BEFORE SUSPENSION OF YOUR OPERATOR’S LICENSE IS IMPOSED, TO FURNISH THIS OFFICE WITH WRITTEN EVIDENCE FROM THE ABOVE MENTIONED COURT THAT YOU APPEARED OR A LETTER OF CLEARANCE FROM THE ABOVE STATE’S LICENSING AUTHORITY OR REQUEST AN ADMINISTRATIVE HEARING IF INFORMAL RESOLUTION CANNOT BE MADE IN THIS MATTER. THIS HEARING REQUEST MUST BE MADE IN WRITING TO THIS OFFICE AND MAY INVOLVE ADMINISTRATIVE COSTS TO YOU.
“AFTER COMPLYING, YOU MUST REMIT A $60.00 REINSTATEMENT FEE MADE PAYABLE TO THE OFFICE OF MOTOR VEHICLES IN THE FORM OF A CASHIER’S CHECK, CERTIFIED CHECK OR MONEY ORDER. PLEASE DO NOT SEND CASH OR PERSONAL CHECKS.
“FAILURE TO COMPLY WITH THE ABOVE WILL RESULT IN ENFORCEMENT ACTION.”

Defendant contends the district court was correct in holding that the State was required to prove that Louisiana sent this notice to him. The State argues that although it requested proof of mailing, the fact Louisiana did not provide same is not fatal to its case. Further, the State argues the attested notice is prima facie evidence of its having been mailed to the defendant.

[418]*418We have not previously had this issue before us, and neither of the parties’ briefs nor our research has disclosed any cases from other jurisdictions determining this precise issue.

In State v. Moffett, 240 Kan. 406, 728 P.2d 1330 (1986), and State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), we discussed the notice requirements of K.S.A. 8-255(b) when the State of Kansas suspends a Kansas driver’s license. Such cases are inapplicable herein. The Compact was not involved in either case. Further, we are not concerned herein with the suspension of a Kansas driver’s license or Kansas procedures for taking such action.

Of more significance is State v. Hudon, 243 Kan. 725, 763 P.2d 611 (1988). In Hudon, defendant had a Kansas driver’s license. Defendant’s failure to appear for a Missouri speeding citation resulted in Kansas being notified thereof by Missouri pursuant to the Compact of which both states were members. Kansas then suspended Hudon’s driving privileges pursuant to K.S.A. 8-1219 “until Ticket is satisfied.” Hudon was subsequently arrested in Johnson County for DUI and other charges, including driving on a suspended license.

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Related

State v. Thomas
970 P.2d 986 (Supreme Court of Kansas, 1998)

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Bluebook (online)
845 P.2d 659, 252 Kan. 415, 1993 Kan. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marshall-kan-1993.