Patrick v. Director of Revenue

938 S.W.2d 951 | Mo. Ct. App. | 1997

PER CURIAM.

Appellant, Phillip G. Patrick (“driver”), appeals the judgment of the Circuit Court of St. Louis County sustaining the suspension of his driving privileges by respondent, the Director of Revenue for the State of Missouri (“Director”). We remand.

Driver was arrested for driving a motor vehicle while intoxicated in violation of RSMo § 302.505,¹ and his driving privileges were suspended. The suspension was sustained after an administrative hearing. Driver sought a trial de nemo in the circuit court pursuant to RSMo § 302.535. The presiding judge for the circuit court assigned driver’s case to a traffic court commissioner, who heard the case and entered findings and recommendations sustaining driver’s suspension. The findings and recommendations were adopted and confirmed as the judgment of the circuit court. Driver’s appeal followed.

On appeal, driver contends the presiding judge acted without jurisdiction in assigning his ease to the traffic court commissioner, and the commissioner acted without jurisdiction in hearing the case. We agree. RSMo § 302.535 provides that petitions for trials de novo shall be filed in the circuit court and heard by a circuit judge or an associate circuit judge, not a traffic court commissioner. Chamberlain v. Director of Revenue, 921 S.W.2d 138, 139 (Mo.App. E.D.1996). The order entered here, after a trial de novo heard by a traffic court commissioner, is without legal effect. Id. at 138. Driver’s petition remains pending in the circuit court. Id. at 139. See also Klipsch v. Lohman, Director of Revenue, 931 S.W.2d 197 (Mo.App. E.D.1996); Battle v. Director of Revenue, State of Missouri, 930 S.W.2d 533 (Mo.App. E.D.1996). Accordingly, we remand for a hearing.

1 . All statutory references are to RSMo 1994.