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STATE v. GRAHAM7/22/1988
The State appeals the trial court's ruling dismissing a habitual violator petition due to the failure of the Kansas Department of Revenue, Division of Vehicles, to certify the defendant's record forthwith under K.S.A. 8-286 and the failure of the Sedgwick County District Attorney to file the petition
within the one-year statute of limitation. K.S.A. 60-514. We reverse.
On June 5, 1987, the Sedgwick County District Attorney's office filed a petition seeking to have Dennis Graham declared a habitual violator under K.S.A. 1987 Supp. 8-285. Attachments to the petition indicated the Kansas Department of Revenue, Division of Vehicles (Division), as required by K.S.A. 8-286, had certified to the district attorney on August 21, 1986, that its records showed Graham was a habitual violator under 8-285. After receiving a new address for Graham, the Division again certified those records on March 10, 1987.
At the hearing on the petition, Graham stipulated he had been convicted as follows: (1) on November 21, 1983, for driving while his license was suspended; (2) on February 24, 1984, for driving under the influence of alcohol and/or drugs and while his license was suspended; and (3) on December 26, 1985, for leaving the scene of a non-injury accident. These convictions satisfy the requirements of K.S.A. 1987 Supp. 8-285 to make Graham a "habitual violator." However, Graham claimed the State had taken too long to prosecute him under K.S.A. 8-286. He also claimed the last conviction was not certified as required by 8-286. The trial court dismissed the petition, holding the Division had not certified the records "forthwith" as required by K.S.A. 8-286 and the petition had been filed too late, after the one-year statute of limitation of K.S.A. 60-514 had run.
In its brief, the State asserts for the first time that Graham's third conviction occurred not on December 26, 1985, but instead on June 26, 1986, allegedly the date Graham was sentenced following the conviction. However, as the State concedes, this is not clear from the record on appeal. Thus, we will accept December 26, 1985, the date stipulated by the parties at trial, as the date of the last conviction.
1. Did the Division fail to certify Graham's records forthwith? K.S.A. 8-286 provides in pertinent part:
"Whenever the files and records of the division shall disclose that the record of convictions of any person is such that the person is an habitual violator as prescribed by K.S.A. 8-285 the division forthwith shall certify a full and complete abstract of such person's record of convictions to the district or county attorney of the county where such person resides, as disclosed by the records of the division. . . . Upon receiving said abstract, the district or county attorney forthwith shall
commence prosecution of such person in the district court of such county, alleging such person to be an habitual violator."
K.S.A. 1987 Supp. 8-285 defines habitual violator as a person who has been convicted three or more times of certain listed offenses within a five-year period. In reaching its decision to dismiss the petition here, the trial court explained its reasoning as follows:
"The legislature has established this as a civil redress of a wrong . . . even though it's captioned as a civil case, carries literally a penal result. Now, the statute says, and I quote, `The Division forthwith shall certify.' . . . Not meaning to be facetious, I don't think any way that it might have been scrivened would make any difference in the legislature's intent, and that is that it is to be timely lodged against a citizen. Now, this was not lod
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