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Allen v. Director of Revenue10/12/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Louis County, Hon. James R. Hartenbach
Opinion Vote: REVERSED AND REMANDED. Gaertner, P.J., Dowd and Simon, JJ., concur.
The Director of Revenue (Director) appeals from the judgment reinstating the driving privileges of Eugene Allen. We reverse and remand.
On January 23, 1998, Mr. Allen was arrested for driving while intoxicated. Director revoked his driving privileges pursuant to section 577.041, RSMo Cum. Supp. 1997, for refusal to submit to a chemical breath test. On that same day, the arresting officer personally served Mr. Allen with a notice of administrative revocation, informing Mr. Allen that his driving privileges would be revoked 15 days from the date of the notice. The notice outlined the appeal process that:
Pursuant to Sections 302.322 and 577.041, RSMo, if you wish to contest the revocation of your privilege to drive, you must petition for a hearing before the Circuit Court in the county where the arrest occurred. A petition for review must be filed within 30 days from the date this notice is issued (See date notice issued above).
On March 11, 1998, Mr. Allen filed a petition for review in the circuit court in St. Louis County. Director filed a motion to dismiss on April 16, 1998, contending the circuit court lacked subject matter jurisdiction due to Mr. Allen's failure to file a timely petition for review. The motion was never heard and, on December 10, 1998, an assistant prosecuting attorney admitted Mr. Allen's petition for review was meritorious. Because of the admission, Commissioner Mary Greaves recommended reinstating Mr. Allen's driving privileges. The circuit court entered a judgment adopting her recommendation. Director then filed a "Motion to Set Aside for Lack of Jurisdiction." In that motion, Director asked the circuit court to set aside the judgment, alleging the court lacked subject matter jurisdiction since Mr. Allen had failed to file a timely petition for review. Commissioner Greaves recommended overruling the motion and the circuit court adopted her recommendation. This appeal followed.
On appeal, Director contends the circuit court erred in entering the judgment and in denying his motion to set aside because the circuit court lacked subject matter jurisdiction in this matter. Mr. Allen has not filed a brief responding to Director's appeal.
The 30-day time limit of section 302.311, RSMo 1994, applies to petitions filed under section 577.041 seeking review of revocations for refusal to take a breathalyzer test. Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990). Here, the notice was personally served upon Mr. Allen and the 30 days began running on that day. See, Grate v. Director of Revenue, 932 S.W.2d 918, 919 (Mo. App. W.D. 1996) (30 days begins running on the day the notice is mailed or delivered to the person). However, Mr. Allen did not file his petition for review within 30 days. Mr. Allen's failure to do so deprived the circuit court of subject matter jurisdiction. Johnson v. Director of Revenue, 879 S.W.2d 754, 755 (Mo. App. E.D. 1994). Moreover, the parties cannot waive subject matter jurisdiction and confession of judgment will not vest a court with subject matter jurisdiction. Evans v. Director of Revenue, 879 S.W.2d 753, 754 (Mo. App. E.D. 1994).
Here, the prosecuting attorney representing the Director, confessed judgment, but the Director appealed the judgment on the basis of jurisdiction. Judge Lawrence Mooney, writing for a panel of this court, recently analyzed a series of cases with a similar fact
Page 1 2 Missouri DUI Attorneys
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