Benbrook v. Director of Revenue , 1994 Mo. App. LEXIS 668 ( 1994 )

CRIST, Judge.

The Director of Revenue (Director) appeals from the decision of the Circuit Court of St. Charles County to reinstate the driver’s license of Thomas Benbrook (Driver) after it was revoked for his failure to submit to a chemical test, § 577.041, RSMo Supp. 1993. We reverse and remand with directions.

On April 2, 1993, Director mailed notice to Driver of its intention to revoke his operator’s license for one year for his failure to submit to a chemical test. On May 5, 1993, thirty-three days later, Driver filed a petition with the trial court requesting it review the Director’s decision. In that petition, Driver admitted he had received by mail notice of revocation dated April 2, 1993. On June 7, 1993, Director filed a motion to dismiss Driver’s petition. Director contended the trial court was without subject matter jurisdiction to consider the petition because it had not been filed within thirty days of the mailing of the notice of revocation. The trial court denied Director’s motion to dismiss, finding Supreme Court Rule 44.01(e) extended the period of thirty days by three additional days. On August 18,1993, an assistant prosecuting attorney for St. Charles County confessed judgment in the case and the court ordered the revocation rescinded.

Director appeals from the denial of its motion to dismiss the petition for lack of subject matter jurisdiction. Director contends Driver’s failure to file his petition for review within thirty days from the date Director mailed notice of revocation divests the circuit court of subject matter jurisdiction.

A driver whose license has been revoked may appeal to the proper circuit court “in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice” of revocation. § 302.311, RSMo 1986; See also, Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990) (thirty-day time limit of § 302.311 applies to revocations under § 577.041). Chapter 536 provides the thirty-day period runs from “the date of delivery or mailing of notice of the agency’s decision_” § 536.110.2, RSMo 1986. Notice of revocation will be mailed unless the enforcement officer has already served it. § 302.515, RSMo 1986; Welch v. Director of Revenue, 859 S.W.2d 230, 231 (Mo.App.1993).

Here, Driver made no allegation the enforcement officer served him or any other date of delivery. Instead, the record reveals notice was mailed on April 2, 1993. Indeed, Driver admits in his petition for review he received notice of revocation with a mail date of April 2,1993. Therefore, in Driver’s case, Driver must have filed his petition for review with the circuit court on or before May 3, 1993. (Note: May 2, 1993, is a Sunday.) See Welch, 859 S.W.2d at 231[3]. Driver faded to do so.

Driver argues Rule 44.01(e) provides him an additional three days after mailing to file his petition. However, Rule 44.01(e) does not apply to administrative decisions. Ramey v. Director of Revenue, 865 S.W.2d 442, 443 (Mo.App.1993); Welch, 859 S.W.2d at 231 n. 3. Therefore, Driver does not obtain an additional three days in which to file his petition.

Driver’s failure to file a timely petition for review deprives the court of subject matter jurisdiction. Romans, 783 S.W.2d at 896; Welch, 859 S.W.2d at 231. Without subject matter jurisdiction, any action taken by the circuit court is null and void. Ferguson v. Director of Revenue, 783 S.W.2d 132, 133 (Mo.App.1989). In addition, the prosecuting attorney’s confession of judgment cannot vest the circuit court with subject matter jurisdiction. Pool v. Director of Revenue, 824 S.W.2d 515, 517[6] (Mo.App.1992); Feldmann v. McNeill, 772 S.W.2d 409, 410 (Mo.App.1989). Therefore, the court’s rescission of the revocation of Driver’s license is null and void. The only proper action is dismissal of Driver’s petition. See, Rule 55.27(g)(3).

We reverse and remand.to the circuit court with directions it dismiss Driver’s petition for review.

CRANDALL, P.J., and REINHARD, J., concur.