Webb v. Wagner

PREWITT, Judge.

Appellant revoked respondent’s driving privileges. Respondent then petitioned the court to set aside that decision. Following a hearing at which no one appeared for appellant, the trial court granted the relief requested.¹

Appellant presents one point, contending that the court erred “because said revocation was proper, in that appellant was required to assess points as of the date he received the notices of conviction, not the date the convictions were entered”. Respondent has not filed a brief.

The trial court expressly relying upon Senn v. Director of Revenue, 674 S.W.2d 43, 46 (Mo.App.1984), determined that points which respondent accumulated may not be assessed on a date other than the date of conviction. Senn states, “Points are assessed as of the conviction date, not the offense date.” 674 S.W.2d at 46.

However, since the decision in Senn, this district relying upon § 302.160, RSMo 1986 (since amended), and Buttrick v. Director of Revenue, 804 S.W.2d 19, 20 (Mo. banc 1991), reached a contrary result. Padgett v. Director of Revenue, 841 S.W.2d 777, 778 (Mo.App.1992). Padgett determined that points are assessed at the time the Director of Revenue receives notice of them, not when the convictions occurred. Assessing points consistent with Padgett, the revocation here was proper.²

The judgment of the trial court is reversed and the cause remanded with directions that the trial judge set aside its previous order and enter an order denying respondent the relief requested.

CROW and GARRISON, JJ., concur.

1 . The record reflects that the prosecuting attorney was notified of the petition and date of hearing but did not appear and apparently took no other action. The prosecuting attorney is to appear in behalf of the Director of Revenue in such proceedings. Section 302.311, RSMo Supp.1986.

2 . The trial court’s order was entered December 10, 1992, after Padgett was decided, but before it appeared in an advance sheet.