Opinion
No. 24421
March 19, 2002
Appeal From Circuit Court of Greene County, Hon. Mark Fitzsimmons.
L. Anne Wickliffe, Counsel for Appellant.
Michael Baker, Counsel for Respondent.
The Director of Revenue ("Director") appeals from the judgment of the Circuit Court of Greene County which set aside Director's one year revocation and five-year denial of the driving privileges of Kenneth Stellwagon ("Respondent"). Director raises one point of error discussed below. We affirm.
On March 14, 2000, Director sent Respondent two letters. The first letter advised Respondent that his driving privileges were revoked for one year because of an accumulation of points on his driving record. See 302.304. The second letter advised Respondent that his driving privileges were denied for five years because of a second conviction for driving while intoxicated within a five year period. See 302.060(10).
Statutory references are to RSMo 2000, unless otherwise indicated.
Respondent filed a timely "Appeal of Loss of Driving Privileges," pursuant to section 302.311, contesting his one year revocation and five year denial of driving privileges in the Circuit Court of Greene County.
Director answered Respondent's petition and attached an exhibit that included a certified copy of Respondent's "Missouri Driver Record." In particular, this administrative record revealed that Respondent had two convictions for driving while intoxicated: the first conviction occurred on April 29, 1997, in Greene County Circuit Court, Municipal Division; the second conviction occurred in Greene County Circuit Court on February 25, 2000.
Also included within Director's answer were copies of purported original court records of Respondent's two convictions. In our review, we observe that both copies are very unclear and illegible, thus difficult to interpret. The first page reveals a fuzzy "Missouri Uniform Complaint and Summons" form, wherein an "x" has been placed next to a recital of "Municipal Court of Springfield, Missouri." It contains Respondent's name on its face and makes reference to a charge of driving while intoxicated. The accompanying page is even more fuzzy and illegible. It appears to be the back of the foregoing summons, and shows a date of 4/29/97; the figure "350" and "1090ak" and also shows the following recital: "$150 fine 30 days jail SES/." It further recites that "The Judge In This Case Is an Attorney Bar # 35549." No reference is made as to representation of counsel or waiver of counsel.
Additionally, a third page apparently shows the same type of summons form but it is only half legible. The fourth page has several numerical recitals and includes recitals of "350," "48 hrs" and "SATOP." Otherwise, the writing is totally fuzzy and illegible.
The docket sheet shows that on May 23, 2001, at the hearing on Respondent's "Appeal of Loss of Driving Privileges," both parties appeared by their respective attorneys. There is a recital: "Trial By Record." Thereafter, the trial court entered its judgment, which set out: "Having reviewed the evidence, the Court finds the Department of Revenue has failed to carry its burden of proof. Judgment for [Respondent]."
In this appeal the parties filed a "Stipulation of the Parties and Motion to Supplement Record on Appeal," which recited that: "1. The certified records of the Department of Revenue attached to its Answer as Exhibit A and consisting of eight pages were received into evidence by the trial court on the date of hearing, . . ." and "(2) The Record on Appeal should include the Greene County docket sheet from the Circuit Court action, attached to this motion as Appellant's Exhibit B, and inadvertently omitted from the Legal File previously filed in this case."
On appeal to this Court, Director posits trial court error in setting aside the one-year revocation and the five-year denial of Respondent's driving privileges. Director maintains she met her burden of proof because the certified records of the Department of Revenue established that Respondent had been convicted twice within a five-year period of violating a state and a municipal ordinance relating to driving while intoxicated.
Respondent counters, however, that Director failed to prove that in the Springfield Municipal DWI conviction Respondent "either was represented by an attorney or waived his right to an attorney in writing" as required by section 302.060(10).
Section 302.060 provides, in pertinent part, that:
The director shall not issue any license and shall immediately deny any driving privilege
(10) To any person who has been convicted twice within a five-year period of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right of an attorney in writing, of driving while intoxicated. . . .
"When a trial court reinstates a driver's license following a suspension or revocation, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Wampler v. Director of Revenue , 48 S.W.3d 32, 34 (Mo.banc 2001); Endsley v. Director of Revenue , 6 S.W.3d 153, 157 (Mo.App. 1999); see Murphy v. Carron , 536 S.W.2d 30, 32 (Mo.banc 1976). "This court reviews the judgment of the circuit court rather than the Director's decision." Justis v. Wilson , 18 S.W.3d 606, 609 (Mo.App. 2000). "We view the evidence in the light most favorable to the judgment." Knipp v. Director of Revenue , 984 S.W.2d 147, 150 (Mo.App. 1998); see Hackmann v. Director of Revenue , 991 S.W.2d 751, 752 (Mo.App. 1999). "The trial court's judgment is to be affirmed if it is correct under any reasonable theory supported by the evidence." Callahan v. Director of Revenue , 878 S.W.2d 826, 827 (Mo.App. 1993). "If the parties do not request findings of fact and the court makes no finding on a specific issue, we assume that such determination of fact was made consistent with the judgment entered by the trial court." Stuart v. Director of Revenue , 761 S.W.2d 234, 235 (Mo.App. 1988).
In the trial below, Respondent bore the burden of persuasion. Kinzenbaw v. Director of Revenue , 62 S.W.3d 49, 54 (Mo.banc 2001). As such, Respondent initially bore the burden of producing evidence that he was entitled to a license. Id .
In Kinzenbaw , the Supreme Court of Missouri observed that "[t]o the extent that Askins [ v. James , 642 S.W.2d 383 (Mo.App. 1982)] is read to place a burden of persuasion on the director under section 302.311, it should no longer be followed." Id . at 54 n. 8.
Attached to Director's answer were two certified copies of letters addressed to Respondent regarding "License Number 523-60-2260." Each letter recited that Respondent's privilege to drive a motor vehicle would, respectively, "be revoked" for one year, and "denied for 5 years." As Kinzenbaw teaches, Director's answer satisfied Respondent's initial burden to produce evidence showing his entitlement to a license. Id . Then it was incumbent upon Director to offer her evidence. Id . Generally, the "director's burden is satisfied by the introduction of the administrative record. . . ." Id .
Director pled and put at issue the reasons for the revocation and denial of Respondent's driving privilege. As previously set out, at trial Director placed a certified copy of Respondent's driving record together with original copies of each of Respondent's prior convictions before the trial court. "Where written exhibits are introduced into evidence, the entire contents of the exhibits are in evidence and may be considered absent a proper objection." Stuart , 761 S.W.2d at 238.
However, both certified copies of Respondent's original court convictions were largely illegible and did not adequately reflect the disposition of each case against Respondent. See Wright v. Director of Revenue , 50 S.W.3d 344, 345-46 (Mo.App. 2001); Callahan , 878 S.W.2d at 827. Under these circumstances the trial court cannot be faulted for finding in favor of Respondent. Furthermore, without a legible copy of Respondent's convictions, we cannot determine if Director presented sufficient evidence to the trial court showing that Respondent had two prior convictions for driving while intoxicated. See Wright , 50 S.W.3d at 345-46. In particular, with regard to the Springfield Municipal conviction, we are unable to discern if Respondent either had counsel representing him, and/or waived such counsel during court proceedings as required by section 302.060(10). See McDonald v. Director of Revenue , 985 S.W.2d 375, 376 (Mo.App. 1999); Deline v. Director of Revenue , 941 S.W.2d 818, 819 (Mo.App. 1997). The Director has the burden of providing a record on appeal that allows for meaningful review. Wright , 50 S.W.3d at 346. Point denied.
No explanation exists in the records submitted to the trial court regarding the illegibility of the documents purporting to show the two convictions in question.
McDonald and Deline both refer to section 302.060(9) for the proposition that the Director must establish that a driver either had counsel and/or waived counsel during court proceedings. However, a close reading of sections 302.060(9) and 302.060(10) reveals these two statutes to be identical in this regard.
The judgment is affirmed.
Shrum, P.J., and Montgomery, J., concur.