 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Kennedy v. State4/19/2005
The trial court defendant, State of Oklahoma, ex rel. Department of Public Safety (DPS), appeals a judgment in favor of the trial court plaintiff, Eric Lee Kennedy (Kennedy), setting aside the revocation of his driver's license.
BACKGROUND
In February 2002, Kennedy was stopped by a Blanchard, Oklahoma police officer while driving his vehicle. The reason for the stop is not shown in the record and it does not appear from the record and testimony that any traffic citation was issued.
The police officer searched the vehicle and discovered a "roach paper." Kennedy was then given a ticket citation for possession of marijuana. He was never advised of the consequences of the charge, either concerning the penalty or the effect on his driving privileges, by any official or court.
Kennedy did not appear in the Blanchard municipal court. His step-father, who is not an attorney, went to a clerk's office and paid the ticket fine. He did not appear before a judge. Although the ticket, and any disposition orders or judgments concerning the ticket, are not in evidence, the parties state that the city record shows a plea of nolo contendere.
The parties further state that thereafter Blanchard officials forwarded the ticket to DPS and that DPS issued a notice of revocation based upon 47 O.S.2001, § 6-205(A)(6). It is undisputed that simple possession of marijuana is a violation falling under Section 6-205(A)(6).
After receipt of the notice from DPS, Kennedy requested a DPS hearing for a modification of the suspension. After a hearing, the DPS declined to modify the revocation. Kennedy then filed this action in district court seeking either a modification of the revocation or nullification of the revocation. The trial court conducted a trial de novo.
In district court, DPS called the hearing officer as its only witness. No exhibits were offered or admitted into evidence. The hearing officer testified that he interviewed Kennedy and that Kennedy admitted to a recent use of marijuana and alcohol. The hearing officer decided not to modify the revocation for this reason.
Kennedy called his step-father as a witness. His step-father testified that he went to the Blanchard City Hall and paid the ticket to the clerk. He did not see a judge and he is not a lawyer. Next, Kennedy testified as to the stop, receipt of the ticket, and the absence of any advice as to the consequences of the charge. He never appeared before a court on the charge. Kennedy also admitted he was present at the DPS interview and substantially confirmed the statements of the hearing officer.
The district court entered a general ruling in favor of Kennedy. Neither party requested findings of fact or conclusions of law and the district court made none. DPS appeals and, as briefed here, DPS claims error in that the district court did not have jurisdiction, Kennedy's plea and fine constituted a conviction for purposes of Section 6-205(A)(6), and Kennedy's plea was properly entered.
KENNEDY'S MOTION TO DISMISS APPEAL
Kennedy seeks dismissal of this appeal as untimely. Kennedy, in advancing this argument, characterizes the trial court's minute order as sufficient to constitute a judgment meeting the statutory requirements for a judgment. 12 O.S.2001, § 696.3. The DPS appeal was filed more than thirty days after entry of this minute order, but timely when the date of the subsequent journal entry was filed.
Kennedy's motion is denied. The minute entry order is not, on its face, a final order. The trial court specifically provided that the recitals there were "all as per J.E." The minute
Page 1 2 3 4 Oklahoma DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|