|
COURT OF
APPEALS DECISION DATED AND
RELEASED JANUARY
22, 1997 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0523-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
EDDIE
M. MILLER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Racine County: STEPHEN A. SIMANEK, Judge. Affirmed.
ANDERSON,
J. Eddie M. Miller appeals from a judgment of
conviction for a fifth offense operating after revocation. Miller argues that his conviction is invalid
because he has never been issued a driver’s license from Wisconsin or any other
jurisdiction. We disagree and affirm
the judgment of conviction.
Miller
filed a motion to dismiss the criminal traffic complaint on the grounds that it
failed to state probable cause because he has never had an operator’s license.
The trial court denied the motion. In
lieu of the presentation of evidence, the facts were submitted to the circuit
court by stipulation. The essential
facts are that Miller has never held a valid driver’s license issued by
Wisconsin and when he was stopped on May 10, 1994, his operating privilege was
revoked. Based on these facts, the
circuit court found Miller guilty.[1]
The
issue before us concerns a matter of statutory construction presenting a
question of law. We review such
questions de novo, without giving deference to the trial court's ruling. In re T.L., 151 Wis.2d 725,
730-31, 445 N.W.2d 729, 731 (Ct. App. 1989).
Similarly, the application of a statute to undisputed facts also
presents a question of law. City
of Milwaukee v. Greenberg, 157 Wis.2d 326, 329, 459 N.W.2d 588, 590
(Ct. App. 1990), rev'd on other grounds, 163 Wis.2d 28, 471 N.W.2d 33
(1991).
Section
343.44(1), Stats., the operating
after revocation statute, provides in part:
No person whose operating privilege has been duly
revoked or suspended pursuant to the laws of this state shall operate a motor
vehicle upon any highway in this state during such suspension or revocation or
thereafter before filing proof of financial responsibility or before he has
obtained a new license in this state or his operating privilege has been
reinstated under the laws of this state....
[Emphasis added.]
This statute does not refer to an operating or driving
license. Rather, it refers to an
operating privilege.
Section
340.01(40), Stats., defines
operating privilege, in part, as follows:
“Operating privilege” means, in the case of a person who
is licensed under ch. 343, the license, including every endorsement and
authorization to operate vehicles of specific vehicle classes or types,
instruction permit, and temporary, restricted or occupational license granted
to such person; in the case of a resident of this state who is not so
licensed, it means the privilege to secure a license under ch. 343; Ľ. [Emphasis added.]
Although
Miller was not licensed at the time of the instant offense, he nonetheless
carried the privilege to secure a license.
Pursuant to § 343.44(1), Stats.,
one whose operating privilege, whether executed or not, has been revoked and
who has failed to obtain a license is liable for prosecution for operating
after revocation.
Despite
the clear and unambiguous language of the statutes, Miller finds ambiguity when
he reads § 343.44, Stats., in
conjunction with § 343.05(3)(a) and (6), Stats. These subsections provide:
(3) Noncommercial vehicles. Except as provided in sub. (4):
(a)
No person may operate a motor vehicle which is not a commercial motor
vehicle upon a highway in this state unless the person possesses a valid
operator's license issued to the person by the department which is not revoked,
suspended, canceled or expired.
(6) Other Offenses; penalties. Section
343.44 and the penalties thereunder shall apply in lieu of this section to any
person operating a motor vehicle upon a highway in this state with an
operator's license which is revoked or suspended.
From
these two statutory sections, Miller constructs two arguments. First, he argues that it is the
legislature’s intent that individuals not holding an operator’s license[2]
are subject solely to the penalties in § 343.05, Stats.; if the legislature wanted such individuals to be
subject to § 343.44, Stats., it
never would have created § 343.05.
Second, he reasons that according to § 343.05(6), because he has never
possessed an operator’s license, § 343.44 does not apply.
In
making this argument, Miller implicitly assumes that his only problem is that
he does not have an operator’s license; he ignores his real problem: his privilege to secure an operator’s
license has been revoked. If Miller’s
assumption was correct, his argument would be correct. If he operated a motor vehicle without an
operator’s license, he would be prosecuted under § 343.05, Stats.
However, he operated a motor vehicle after his privilege to secure a
license had been revoked; therefore, he can only be prosecuted under § 343.44, Stats.
Under
the licensing scheme of the Motor Vehicle Code there are two categories of
residents. The first category includes
those residents who are licensed to operate a motor vehicle and the second
category includes those residents who are not licensed. Miller is in the latter category and in his
case “operating privilege” is the privilege to apply for and receive an
operator’s license. Because his right
to secure an operator’s license has been revoked, § 343.05, Stats., does not apply.
We
conclude that the statutes are unambiguous and the trial court properly denied
Miller’s motion to dismiss the action and correctly found him guilty of
operating after revocation.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See Rule 809.23(1)(b)4, Stats.
[1] Appellate
counsel for Miller originally submitted a no merit report pursuant to § 809.32,
Stats., which we rejected because
the question of whether a person who has never had an operator’s license could
be charged and convicted of operating after revocation appeared to be a
question of first impression.