Clinton v. the State , 340 Ga. App. 587 ( 2017 )

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 9, 2017
In the Court of Appeals of Georgia
A16A1606. CLINTON v. THE STATE.
BRANCH, Judge.
On appeal from his conviction after a bench trial for habitually impaired
driving and other crimes, Courtney Clinton argues that the evidence was insufficient
as to the habitually impaired driving charge because he had not received sufficient
notice of his status as a habitual violator. We agree and reverse.
Where, as here, the facts at a bench trial are not in dispute, “this Court conducts
a de novo review of the record in determining whether the trial court committed plain
legal error.” Greene County Bd. of Commissioners v. Higdon, 277 Ga. App. 350, 350
(626 SE2d 541) (2006) (citation and punctuation omitted). This record shows that on
February 24, 2014, Clinton was driving a vehicle in Richmond County when he was
stopped on suspicion of a window tint violation (OCGA § 40-8-73.1).1 The window
tint measured 21 percent light transmission, or eleven percent less than the statutory
minimum. In addition to this window tint violation, Clinton was also charged with
habitual impaired driving (OCGA § 40-5-58 (c) (2)), driving without registration
(OCGA § 40-6-15), and driving without insurance (OCGA § 40-6-10).
At a bench trial, Clinton stipulated guilt as to the window tint, registration and
insurance violations. Clinton also stipulated to the facts underlying the habitual
impaired driving charge, including his driving under the influence (DUI) on February
18, 2011, March 8, 2012, and September 15, 2012. These facts included that on
September 17, 2012, Clinton signed an “official notice of revocation/suspension”
1
OCGA § 40-8-73.1 (b) provides in relevant part:
[I]t shall be unlawful for any person to operate a motor vehicle in this
state: (1) Which has material and glazing applied or affixed to the front
windshield, which material and glazing when so applied or affixed
reduce light transmission through the windshield; or (2) Which has
material and glazing applied or affixed to the rear windshield or the side
or door windows, which material and glazing when so applied or affixed
reduce light transmission through the windshield or window to less than
32 percent, plus or minus 3 percent, or increase light reflectance to more
than 20 percent.
2
advising him that his license was being revoked or suspended “upon conviction for”
offenses including DUI and driving with a suspended license for a period “[to] be
determined by [the Department] for the term authorized by law.” The form did not
indicate, however, that Clinton’s license was being suspended because he was a
habitual violator. The same form ordered Clinton to surrender his license, but Clinton
had not brought it to court. On the same day, September 17, 2012, Clinton pled guilty
to all three DUI charges. After the presentation of this stipulated evidence, Clinton
argued that he was not guilty of the habitual impaired driving charge because he had
not received notice of his status as a habitual violator. Although the State showed that
the Georgia Department of Driver Services had attempted to notify Clinton of his
status as a habitual violator in October 2012, Clinton produced a May 2014 letter
from the Department showing that it had not so notified him.
After hearing argument from both sides, the trial court accepted Clinton’s
stipulation of guilt as to the first three counts and also found him guilty of being a
habitual impaired driver. Because the trial court postponed sentencing in the case, this
Court dismissed Clinton’s first direct appeal on the ground that he had not followed
the interlocutory appeal procedures of OCGA § 5-6-34 (b). On remand, the trial court
entered a sentence of three years on probation.
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On this appeal, Clinton argues that the evidence was insufficient as to his
conviction as a habitual impaired driver because he was not given actual or legally
sufficient notice of his status as a habitual violator. We agree.
The Supreme Court of Georgia has recently repeated the guidelines for
examining the meaning of a statute, as follows:
When we consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant. To that
end, we must afford the statutory text its plain and ordinary meaning, we
must view the statutory text in the context in which it appears, and we
must read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.
Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (citations and
punctuation omitted). Thus “if a statutory text is clear and unambiguous, we attribute
to the statute its plain meaning, and our search for statutory meaning is at an end.” Id.
at 173 (1) (a) (citation and punctuation omitted).
The statute governing habitual violators of Georgia’s driving laws is OCGA
§ 40-5-58, which provides in relevant part:
(a) As used in this Code section, “habitual violator” means any person
who has been arrested and convicted within the United States three or
more times within a five-year period of time, as measured from the dates
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of previous arrests for which convictions were obtained to the date of
the most recent arrest for which a conviction was obtained, of [offenses
including DUI].
(b) When the records of the department disclose that any person is a
habitual violator as defined in subsection (a) of this Code section, the
department shall forthwith notify such person that his or her driver’s
license has been revoked by operation of law and that it shall be
unlawful for such habitual violator to operate a motor vehicle in this
state unless otherwise provided in this Code section. Notice shall be
given by certified mail or statutory overnight delivery, with return
receipt requested; or, in lieu thereof, notice may be given by personal
service upon such person.
(c) (1) Except as provided in paragraph (2) of this subsection . . . , it
shall be unlawful for any person to operate any motor vehicle in this
state after such person has received notice that his or her driver’s
license has been revoked as provided in subsection (b) of this Code
section, if such person has not thereafter obtained a valid driver’s
license. Any person declared to be a habitual violator and whose
driver’s license has been revoked under this Code section and who is
thereafter convicted of operating a motor vehicle before the department
has issued such person a driver’s license or before the expiration of five
years from such revocation, whichever occurs first, shall be punished by
a fine of not less than $750.00 or by imprisonment in the penitentiary for
not less than one nor more than five years, or both. Any person declared
to be a habitual violator and whose driver’s license has been revoked
and who is convicted of operating a motor vehicle after the expiration
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of five years from such revocation but before the department has issued
such person a driver’s license shall be guilty of a misdemeanor.
(2) Any person declared to be a habitual violator as a result of three or
more convictions of violations of Code Section 40-6-391[, the DUI
statute,] within a five-year period of time, as measured from the dates of
previous arrests for which convictions were obtained to the date of the
most recent arrest for which a conviction was obtained, and who is
thereafter convicted of operating a motor vehicle during such period of
revocation, prior to the issuance of a probationary license under
subsection (e) of this Code section or before the expiration of five years,
shall be guilty of the felony of habitual impaired driving and shall be
punished by a fine of not less than $1,000.00 or by imprisonment in the
penitentiary for not less than one nor more than five years, or both.
(Emphasis supplied.)
On their face, the three subsections of OCGA § 40-5-58 respectively (a) define
the category of the “habitual violator,” (b) require notice to such a person “that his
or her driver’s license has been revoked by operation of law,” and (c) set out the
elements and penalties for the offenses of misdemeanor and felony driving by “[a]ny
person declared to be a habitual violator.” Specifically, subsection (a) defines a
“habitual violator” as “any person who has been arrested and convicted . . . three or
more times within a five-year period” of traffic offenses including DUI. And
subsection (b) mandates that when the Department’s records “disclose that any person
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is a habitual violator,” the Department “shall forthwith notify such person” that his
or her license has been revoked “by operation of law and that it shall be unlawful for
such habitual violator to operate a motor vehicle” in Georgia. (Emphasis supplied.)
Thus, as we noted in a case where the Department had provided a driver with notice
of his habitual violator status, “the essence of the offense of driving while [an]
habitual violator is driving after being notified that one may not do so.” Munna v.
State, 331 Ga. App. 410, 412 (1) (771 SE2d 106) (2015) (punctuation omitted).
As amended in 1992,2 OCGA § 40-5-58 (c) established the new offense of
felony “habitual impaired driving,” with changes surviving into the present version
of the statute, which provides that “[a]ny person declared to be a habitual violator”
and “who is thereafter convicted of operating a motor vehicle” without permission or
before five years have passed is guilty of either (1) the misdemeanor offense of
driving as a habitual violator or (2), in the special case of “three or more” DUI
convictions, “the felony of habitual impaired driving.” The defined category of the
“habitual violator,” as well as the consequences flowing from the Department’s
declaration of a person as such, is thus the subject common to all three subsections
of the statute. See. e.g,. Smith v. State, 248 Ga. 828, 830 (3) (286 SE2d 709) (1982)
2
See 1992 Ga. L. p. 2556, § 1 (S. B. 487).
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(“The offense of violating [OCGA § 40-5-58] by driving a motor vehicle after
revocation of a license upon being declared [an] habitual violator is an offense
separate and distinct from the offenses which led to the driver’s being declared [an]
habitual violator”).
The State seeks to avoid the plain terms of OCGA § 40-5-58 (b), which
requires the Department to “notify” a habitual violator of his status as such, on the
ground that Clinton acknowledged the suspension of his license. This argument
ignores the statute’s often-repeated distinction between license revocation, which
occurs “by operation of law,” and notice of a person’s status as a “habitual violator,”
which notification enables the State to prosecute that person when later found to be
driving a vehicle in Georgia. OCGA § 40-5-58 (b), (c). In sum, when a driver
qualifies as a “habitual violator” under OCGA § 40-5-58 (a), the State must show that
it provided notice to the driver of his status as such before it can obtain a conviction
for either the misdemeanor of driving while a habitual violator or the felony of
“habitual impaired driving.” OCGA § 40-5-58 (c) (1), (2). Here, the State conceded
that it failed to notify Clinton of his status as a “habitual violator” as required by
OCGA § 40-5-58 (b). We must therefore reverse Clinton’s conviction for the felony
of “habitual impaired driving” as defined in OCGA § 40-5-58 (c) (2).
Judgment reversed. Ellington, P. J., and Mercier, J., concur.
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