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COURT OF
APPEALS DECISION DATED AND
RELEASED March
6, 1997 |
NOTICE |
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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
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No. 96-2085-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
ERNEST
L. SMITH,
Defendant-Respondent.
APPEAL
from an order of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed.
DEININGER,
J.[1] The
State appeals from an order dismissing a criminal complaint against Ernest
Smith. He had been charged with
sixth-offense operating a motor vehicle after his operating privileges were
revoked (OAR), in violation of § 343.44(1) and (2)(e)1, Stats.
The trial court dismissed the criminal complaint and directed the
prosecution to proceed as a forfeiture violation under
§ 343.44(2)(e)2. The State argues
that § 343.44(2)(e)2 does not apply because: (1) the instant charge
is based on a revocation of Smith's operating privileges due to his habitual traffic offender (HTO) status;
and (2) Smith's HTO status was not based exclusively on previous
suspensions for failure to pay forfeitures (FPF). We conclude, however, that § 343.44(2)(e)2 does apply on these
facts, and we affirm the order dismissing the criminal complaint.
BACKGROUND
At
the outset, it should be noted that Smith would have us affirm the trial court
based on the court's "factual finding" that "the only
revocations in effect at the time of this offense were for failures to pay
fines." We previously ordered a
copy of Smith's official Department of Transportation (DOT) driving record
stricken from the appendix to the State's brief. We also ordered the State to make no references to the official
DOT driving record in its brief, and we denied the State's motion to supplement
the appeal record with the DOT driving record.
These previous orders were based on the fact that the official DOT
driving record had not been introduced into evidence in the trial court. We do not allow parties to develop the
evidentiary record on appeal.
The
disposition of this appeal, however, is not so simple as Smith would have
it. We have reviewed the record, which
includes: the briefs filed by the State
and Smith in the trial court, a transcript of the arguments by counsel, and the
trial court's bench decision on Smith's motion to dismiss the complaint. Even though Smith's official DOT driving
record is not a part of the record, it is clear that Smith conceded, and the
trial court considered, the facts which follow.
On
June 6, 1995, DOT determined that Smith was a habitual traffic offender and
ordered a five-year revocation of his operating privileges. On that date, Smith had accumulated three
convictions for operating after suspension (OAS) where the underlying
suspensions were for failure to pay fines or forfeitures.[2] He also had been convicted of OAR on May 1,
1995, the offense which apparently triggered the HTO determination.[3] The revocation underlying the May 1, 1995,
OAR conviction was based on Smith's driving record.[4]
Thus,
on December 23, 1995, the date of the instant offense, the following were in
effect: several suspensions for FPF,
and the June 6, 1995, HTO revocation.
There were no other revocations or suspensions in effect.[5] The trial court was aware of these facts,
and it considered them in reaching its decision, stating: "[w]ell, the HTO, he could have had
those obligations without the failure to pay fines and he wouldn't be HTO. Without the failure to pay fines he's not
HTO;" and "[n]ow, granted, part of that HTO, part of that driving
record back some years included some -- or at least one on OWI revocation[6]
but that revocation had terminated and it is not in effect at the time of this
offense."
The
trial court's statement that "there was only in effect suspensions or
revocations for failure to pay fine" represents the court's legal conclusion
from the facts before it, not a factual finding by the trial court. Based on this conclusion, the trial court
granted Smith's motion to dismiss the criminal complaint and ordered that
"Mr. Smith's case be treated as a forfeiture violation."
ANALYSIS
The
proper application of a statute to undisputed facts is a matter of law which we
decide without deference to the trial court's opinion. State v. Michaels, 141 Wis.2d
81, 87, 414 N.W.2d 311, 313 (Ct. App. 1987).
The statute at issue in this appeal is § 343.44(2)(e), Stats., which provides:
1. Except as provided in subd.
2., for a 5th or subsequent 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 $2,500 and may be imprisoned for not more than one year in
the county jail.
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 $2,500. This subdivision applies regardless of the
person's failure to reinstate his or her operating privilege.
The
State argues that this case is governed by State v. Kniess, 178
Wis.2d 451, 504 N.W.2d 122 (Ct. App. 1993).
In that case, we held that an HTO revocation which was "imposed for
reasons other than Kniess's failure to pay a fine or forfeiture" could
form the basis for criminal prosecution under § 343.44(2)(e)1, Stats.
Kniess, 178 Wis.2d at 456, 504 N.W.2d at 124. In that case, however, "none"
of the "barrage of traffic crimes and violations" which resulted in
the HTO status were based on failing to pay a fine or forfeiture. Id. at 455, 504 N.W.2d at 124
(emphasis supplied).
Smith,
on the other hand, has relied on State v. Taylor, 170 Wis.2d 524,
489 N.W.2d 664 (Ct. App. 1992). In Taylor,
we held that where an HTO revocation is based solely on suspensions for
failure to pay fines or forfeitures, the HTO revocation cannot form the basis
for a criminal prosecution for OAR.
Only a civil prosecution under § 343.44(2)(e)2, Stats., is permissible in that
circumstance. Id., at
528-30, 489 N.W.2d at 666-67.
The
problem, of course, is that the facts in this case lie squarely between Taylor
and Kniess. Here, Smith's
HTO status is based in part on OAS offenses stemming solely from FPF
suspensions, and in part on an OAR offense based on a revocation for other than
FPF. Thus, the question on this appeal
is: which penalties apply to an OAR conviction based on an HTO revocation,
where the HTO stems in part from FPF suspensions and in part from a revocation
for other than FPF?
We conclude that the
trial court correctly applied § 343.44(2)(e)2, Stats., to these facts.
The rationale of our holding in State v. Taylor, 170
Wis.2d at 530, 489 N.W.2d at 667, is that HTO is not an offense; it is a
status. We held in Taylor,
that if HTO status is based solely on FPF suspensions, it cannot convert
noncriminal conduct into criminal conduct.
[O]ur decision in Taylor rested upon the
fact that the legislature chose not to denominate habitual traffic offender
status as a separate offense. Thus, in Taylor, there was no
intervening revocation or suspension that was imposed for an offense separate
from a failure to pay a fine or forfeiture.
State v. Biljan, 177 Wis.2d 14, 20-21, 501 N.W.2d 820, 823 (Ct. App.
1993).
Like
Taylor, Smith was without a driver's license on the date of the instant offense
because his driving privileges were suspended for FPF and because DOT had
conferred upon him the status of HTO.
Unlike Kniess, whose HTO status was related in toto to "a
barrage" of non-FPF-related offenses, Smith's HTO status stems in large
measure from his prior OAS-FPF convictions.
We conclude that § 343.44(2)(e)2, Stats.,
applies to the instant offense because "the revocation or suspension that
is the basis of [the instant] violation was imposed ... solely due to a failure
to pay a fine or forfeiture and one or more subsequent convictions for
violating [§ 343.44](1)."
The
State argues that we must conclude here, as we did in Biljan and Kniess,
that "there is a sufficient causal relationship between the suspension [in
effect] which is independent of [Smith's] failure to pay a fine or
forfeiture." Biljan, 177 Wis.2d at 20, 501 N.W.2d at
823. We cannot do so. But for the three prior OAS-FPF convictions,
Smith would have not been declared an HTO on June 6, 1995. Without the FPF-related convictions, he
would have had only one HTO criterion offense, instead of four.[7]
Since
Smith's other suspensions and revocations had expired, leaving in effect only
his suspensions for FPF and his HTO revocation stemming in large part from
FPF-related offenses, the instant offense must be prosecuted as a civil
forfeiture action.[8]
By
the Court.—Order affirmed.
This
opinion will not be published. See Rule 809.23(1)(b)4, Stats.
[3] See
§ 351.02(1)(a)4, Stats.,
(HTO status applies to a driver accumulating four or more convictions of
OAS/OAR within five-year period). Smith
stated in his trial court brief that the June 6, 1995, HTO determination was
also based on an October 26, 1995, conviction for OAR. This cannot be since the HTO determination
preceded that conviction.
[4] The driving
record revocation was imposed by DOT on September 27, 1994, for one year. Smith had accumulated demerit points from
his July 14, 1994, conviction for OAS-FPF (8), and from an August 3, 1994,
conviction for inattentive driving (6).
[5] The one-year revocation for driving record
expired on September 27, 1995. Smith
had not reinstated his privileges following the expiration of that revocation,
and thus he could have been charged with OAR on that basis alone. Section 343.44(1), Stats.
For purposes of determining whether civil or criminal penalties apply
under § 343.44(2), however, the failure to reinstate following this
revocation is disregarded. State
v. Muniz, 181 Wis.2d 928, 933, 512 N.W.2d 252, 253-54 (Ct. App. 1994)
(failure to reinstate after demerit point suspension expired does not render
instant OAR criminal). It could be
argued that the holding in Muniz is contrary to certain language
in State v. Biljan, 177 Wis.2d 14, 21-22, 501 N.W.2d 820, 823
(Ct. App. 1993). We rely on Muniz,
however, since it is the more recent case and it is more directly on point with
the present facts. The State has not
argued that the driver record revocation was still in effect.
[6] This is not
correct. The record does not indicate
any prior revocations for OMVWI. The
court appears to be referring to the driving record revocation discussed above
which expired on September 27, 1995.
[7] Except for his
FPF-related offenses, Smith might not have had even the one remaining HTO
criterion offense—the May 1, 1995, conviction for OAR based on a driving record
revocation. It appears that his driving
record revocation was also based in part on a prior OAS-FPF conviction.
[8] We note that the criminal versus civil
penalty provisions of § 343.44(2), Stats.,
have been the subject of numerous published and unpublished opinions of this
court in recent years. See the cases
above and State v. Anderson, 178 Wis.2d 103, 503 N.W.2d 366 (Ct.
App. 1993); State v. Bankston, No. 94-1745-CR, unpublished slip
op. (August 10, 1995); State v. Graham, No. 95-1520, unpublished
slip op. (July 31, 1996); State v. Grulich, No. 95-2549-CR,
2551-CR and 2552-CR, unpublished slip op. (January 24, 1996). It could well be argued that the language of
the statute has created confusion among prosecutors, defense attorneys and
trial courts over the proper application of these statutes to specific driver
histories. It could also be argued that
our opinions have not assisted in dispelling this confusion. We believe that the penalty provisions of
§ 343.44, Stats., would
benefit from legislative attention.