COURT OF
APPEALS DECISION DATED AND
RELEASED October
24, 1996 |
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. 96-1807-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
VENUS
M. MANNS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Marquette County: RICHARD
O. WRIGHT, Judge. Reversed and cause
remanded.
DYKMAN,
P.J. This is a single-judge appeal
decided pursuant to § 752.31(2)(c), Stats. Venus M. Manns appeals from a judgment
convicting her of operating a motor vehicle after revocation (OAR),
§ 343.44, Stats., second
offense, and imposing criminal penalties under § 343.44(2)(b)1. Manns argues that the revocation or
suspension that was the basis for her OAR conviction was imposed solely due to
failure to pay a forfeiture, and therefore the trial court could not impose
criminal penalties pursuant to § 343.44(2)(b)2. Because we conclude that the only suspension in effect at the
time of the most recent OAR violation was imposed for failure to pay a
forfeiture, even though Manns failed to reinstate her operating privileges after
a two-month revocation for excessive demerit points, the trial court should
have sentenced Manns under § 343.44(2)(b)2.
We reverse the judgment and remand the matter with directions to
resentence Manns under § 343.44(2)(b)2.
BACKGROUND
The
facts are not in dispute. On June 14,
1990, and again on June 4, 1991, Manns' license was suspended for five years
for failure to pay a forfeiture. On
February 21, 1991, she received a six-month revocation for operating while
suspended, and on April 19, 1991, she received a two-month revocation for excessive
demerit points. Manns did not reinstate
her license from either of these revocations.
Finally, on August 31, 1991, Manns was cited for operating after
revocation pursuant to § 343.44(1), Stats.,[1]
for the second time in five years.
The State filed a
complaint against Manns seeking sanctions under § 343.44(2)(b)1, Stats.
Manns moved to dismiss the case, arguing that these penalties were not
available. The trial court denied
Manns' motion, found her guilty of OAR, second offense, and sentenced her to
five days in jail, fined her $420 plus costs, and revoked her license for six
months. Manns appeals.
DISCUSSION
Manns
argues that sanctions were not available under § 343.44(2)(b)1, Stats., because the revocation or
suspension that was the basis of her OAR violation was imposed solely due to a
failure to pay a fine or a forfeiture.
This issue presents a question of statutory interpretation, which we
review independently from the trial court's determination. State v. Muniz, 181 Wis.2d
928, 931, 512 N.W.2d 252, 253 (Ct. App. 1994).
Manns
was sentenced under § 343.44(2)(b), Stats.,
which provides:
1. Except as provided in subd. 2,
for a 2nd conviction under this section or a local ordinance in conformity with
this section within a 5-year period, a person may be fined not more than $1,000
and shall be imprisoned for not more than 6 months.
2. If
the revocation or suspension that is the basis of a violation was imposed
solely due to a failure to pay a fine or a forfeiture, or was imposed solely
due to a failure to pay a fine or forfeiture and one or more subsequent
convictions for violating sub. (1), the person may be required to forfeit not
more than $1,000. This subdivision
applies regardless of the person's failure to reinstate his or her operating
privilege.
In
both State v. Muniz, 181 Wis.2d 928, 512 N.W.2d 252 (Ct. App.
1994), and State v. Biljan, 177 Wis.2d 14, 501 N.W.2d 820 (Ct.
App. 1993), we construed § 343.44, Stats.,
to determine whether the State could seek a criminal conviction under
§ 343.44(2) against a defendant who had violated § 343.44(1) on more
than one occasion. In Muniz,
we concluded that the only suspension in effect was a five-year suspension for
Muniz's failure to pay a forfeiture, and thus a § 343.44(2)(b)1 sanction
was not available. 181 Wis.2d at 933,
512 N.W.2d at 254. In Biljan,
we concluded that the revocation was not based solely upon Biljan's failure to
pay a forfeiture, and therefore a § 343.44(2)(c)1 sanction was available.[2] 177 Wis.2d at 20, 501 N.W.2d at 823.
Manns
argues that this is a Muniz case, and therefore
§ 343.44(2)(b)1 sanctions are not available. The State argues that Muniz is distinguishable, and
therefore Muniz is not controlling authority. In the alternative, the State argues that Muniz
was incorrectly decided and that we should rely on Biljan
instead. We agree with Manns that Muniz
is controlling and reverse.
The
facts in Muniz are substantially identical to the facts of this
case:
Muniz
was convicted of OAR, first offense, in May 1989. Effective January 29, 1991, Muniz's operating privileges were
revoked under § 343.32(2)(c), Stats.,
for two months because he had accumulated twelve demerit points in a twelve-month
period. During that two-month period,
Muniz's operating privileges were suspended for five years because he failed to
pay a forfeiture. Muniz failed to
reinstate his license on March 30, 1991, the date his demerit suspension
expired. On June 9, 1991, Muniz was
cited for OAR, second offense, the violation underlying this appeal.
Muniz, 181 Wis.2d at 930, 512 N.W.2d at 252-53.
Other
than the suspension for failure to pay a forfeiture, the only suspension in Muniz
was the two-month suspension for excessive demerit points. The demerit point suspension, however,
expired before Muniz was cited for OAR, second offense. We concluded that "under the specific
provisions of § 343.44(2)(b)2 Muniz's
failure to reinstate his operating privileges after his demerit points
suspension expired does not render his OAR, second offense, criminal and §
343.44(2)(b)2 inapplicable." Id.
at 933, 512 N.W.2d at 254.[3]
Like
Muniz, the only revocations on Manns' driving record other than
the suspensions for failing to pay a forfeiture had expired prior to Manns'
citation for OAR, second offense.[4] Because this case is factually
indistinguishable from Muniz, we conclude that the trial court
erred in imposing penalties under § 343.44(2)(b)1, Stats.
The
State argues that Muniz is distinguishable from this case because
Muniz involved a demerit point suspension, while this case involves a demerit
point revocation.[5] We do not see the relevance of this
distinction. The legislature made no
attempt to distinguish revocations from suspensions in the language of
§ 343.44, Stats. Section 343.44(1) provides: "No person
whose operating privilege has been duly revoked or suspended ... shall
operate a motor vehicle upon any highway in this state during such suspension
or revocation ...." (Emphasis
added.) And § 343.44(2)(b)2
provides: "If the revocation or suspension that is the basis of a
violation was imposed solely due to the failure to pay a fine or a forfeiture
... the person may be required to forfeit not more than $1,000." (Emphasis added.)
The
last sentence of § 343.44(2)(b)2, Stats.,
provides: "This subdivision applies regardless of the person's failure to
reinstate his or her operating privilege." Because the rest of § 343.44 refers to both suspensions and
revocations, we see no reason why the legislature would intend the last
sentence of § 343.44(2)(b)2 to refer only to a person's failure to
reinstate his or her operating privilege following a suspension, but not a
revocation, without stating so.
Therefore, we reject the State's argument.
The
State also argues that Muniz is irreconcilable with Biljan,
and therefore we should not give precedential value to Muniz. According to § 752.41(2), Stats., however, "Officially
published opinions of the court of appeals shall have statewide precedential
effect." Nonetheless, Biljan
is distinguishable from Muniz.
In
Muniz, the defendant's operating privileges were suspended for
two months for excessive demerit points, and this suspension expired prior to
the defendant being cited for OAR, second offense. In Biljan, on the other hand, the defendant's
operating privileges were suspended under § 344.14, Stats., for failing to post a security
deposit under § 344.13, Stats.,
and Biljan's suspension for failure to post a security deposit remained in
effect under § 344.18(1), Stats.,[6]
at the time of his May 1992 citation for OAR, third offense. Biljan, 177 Wis.2d at 18, 501
N.W.2d at 822. The court concluded:
Biljan's failure to pay a forfeiture was not the sole
basis for his suspension. The safety
responsibility suspension was in effect at the time Biljan was cited for OAR,
third offense, the violation with which we are concerned. We therefore conclude that there is a
sufficient causal relationship between the suspension for failure to post a
security deposit, which is independent of Biljan's failure to pay a fine or
forfeiture, and the current violation.
The existence of a basis other than failure to pay a fine or forfeiture
renders sec. 343.44(2)(c)2, Stats., inapplicable.
Id. at 20, 501 N.W.2d at 823.
Like
Muniz, Biljan could have reinstated his license under § 344.18(1), Stats., by paying the $50 reinstatement
fee. The court concluded, however, that
the failure to pay the reinstatement fee was not the basis for Biljan's
suspension:
[W]hile it is true Biljan's safety responsibility
suspension continues in effect under sec. 344.18(1), Stats., because he has
failed to pay the $50 reinstatement fee, his failure to reinstate his operating
privileges is not the basis of that suspension or revocation. The basis of Biljan's safety responsibility
suspension is his failure to post a security deposit as required under sec.
344.14.
Id. at 22, 501 N.W.2d at 823-24.
When
Biljan was cited for OAR, third offense, his operating privileges remained
suspended under § 344.18(1), Stats.,
because of his failure to post a security deposit, and therefore his suspension
for failure to pay a fine or a forfeiture was not the sole basis of his OAR,
third offense conviction, making § 343.44(2)(c)2, Stats., inapplicable.
Muniz's suspension for excessive demerit points, on the other hand,
expired after two months and continued solely because of his failure to
reinstate his operating privilege.
Because § 343.44(2)(b)2 applies "regardless of the person's
failure to reinstate his or her operating privilege," Muniz could not be
charged under § 343.44(2)(b)1. The
cases are distinguishable.
By
the Court.—Judgment reversed
and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Section 343.44(1), Stats., provides:
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 that
person has obtained a new license in this state ....
[2] Section 343.44(2)(c), Stats., provides the penalty for OAR, third offense, while
§ 343.44(2)(b) provides the penalty for OAR, second offense. Otherwise, the sections are identical.
[3] We stated that the last sentence of § 343.44(2)(b)2, Stats., "demonstrates the
legislature's intent to decriminalize the offense of operating after the
revocation period has expired but before reinstatement of operating privileges,
as long as no intervening suspensions that were imposed for other than a
failure to pay a fine or forfeiture are still in effect." State v. Muniz, 181 Wis.2d
928, 932-33, 512 N.W.2d 252, 253 (Ct. App. 1994).
[4] The February 21, 1991 revocation for
operating while suspended expired on August 22, 1991, and the April 19, 1991
demerit point revocation expired on June 20, 1991. Manns was cited for operating after revocation, second offense,
on August 31, 1991.
[5] It is unclear whether Muniz's operating
privileges were revoked for excessive demerit points or whether they were
suspended. We will assume, arguendo,
that Muniz received a demerit point suspension.
[6] Section 344.18(1), Stats., provides, "Any operating privilege revoked as
provided in s. 344.14 shall remain revoked and shall not be renewed or
reinstated until the fee required under s. 343.21(1)(j) has been paid, the
applicable provisions of s. 343.38 have been complied with and one of the
following requirements has been met: ..."
(Emphasis added.)