Davis v. Hiatt

390 S.E.2d 338 (1990)

326 N.C. 462

James Sidney DAVIS v. William S. HIATT, Commissioner, North Carolina Division of Motor Vehicles.

No. 155PA89.

Supreme Court of North Carolina.

April 5, 1990.

*339 Lacy H. Thornburg, Atty. Gen. by Jane P. Gray, Sp. Deputy Atty. Gen., and Mabel Y. Bullock, Asst. Atty. Gen., Raleigh, for respondent-appellant.

George R. Barrett, Raleigh, for petitioner-appellee.

WEBB, Justice.

The appellant argues first that the superior court did not have jurisdiction to determine the questions raised in the petition. We agree with the Court of Appeals that the suspension of the petitioner's driving privilege was mandatory under N.C. G.S. § 20-17(2) and N.C.G.S. § 20-19(e) and the petitioner did not have the right to appeal under N.C.G.S. § 20-25. Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 164 S.E.2d 2 (1968); Fox v. Scheidt, Comr. of Motor Vehicles, 241 N.C. 31, 84 S.E.2d 259 (1954).

We do not agree with the Court of Appeals that the petitioner has a right of appeal under Chapter 150B of the North Carolina General Statutes, the Administrative Procedure Act. N.C.G.S. § 150B-43 provides in part:

Any person who is aggrieved by the final decision in a contested case ... is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute....

N.C.G.S. § 150B-2 provides in part:

(2) "Contested case" means an administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty. "Contested case" does not include rulemaking, declaratory rulings, or the award or denial of a scholarship or grant. .... (3) "License" means any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity, except licenses issued under Chapter 20 and Subchapter I of Chapter 105 of the General Statutes and occupational licenses.

N.C.G.S. § 150B-43 provides that any person who is an aggrieved party in a contested case is entitled to judicial review if it is not otherwise available. N.C.G.S. *340 § 150B-2 says that contested cases include disputes about licenses, except licenses issued under Chapter 20 of the General Statutes. This case involves a driver's license which was issued pursuant to Chapter 20. It is expressly excluded from those cases which may be appealed under the Administrative Procedure Act. The petitioner had no right of appeal under N.C.G.S. § 150B-43.

The superior court could review the actions of the Commissioner by issuing a writ of certiorari. In Russ v. Board of Education, 232 N.C. 128, 59 S.E.2d 589 (1950), the petitioner filed an action in superior court to review the action of the Board of Education of Brunswick County in dismissing him from his position as member of a school committee. The superior court overruled a demurrer to the action and this Court affirmed. Justice Ervin, writing for this Court, said "G.S. 1-269 expressly stipulates that `writs of certiorari ... are authorized as heretofore in use.' It is well settled in this jurisdiction that certiorari is the appropriate process to review the proceedings of inferior courts and of bodies and officers exercising judicial or quasi-judicial functions in cases where no appeal is provided by law." Id. at 130, 59 S.E.2d at 591. We held in that case that the act of ousting the petitioner from the school committee was quasi-judicial in nature and may be reviewed by the superior court by certiorari. We also held in that case that if a petition alleges facts sufficient to establish the right of review on certiorari its validity as a pleading is not impaired by the fact the petitioner does not specifically pray that the court issue a writ of certiorari. In this case the petitioner pled sufficient facts to show he did not have a right to appeal from a final decision of an agency. He could then petition for a writ of certiorari to have the case reviewed by the superior court. We hold the superior court had jurisdiction to review the case.

The substantive question in this case is whether the judgment entered on a plea of no contest to a previous charge of driving with a blood alcohol content of .10 percent or more may be used as a prior conviction by the Department of Motor Vehicles for purposes of revoking a driver's license. We hold that it may be so used.

In State v. Outlaw, 326 N.C. 467, 390 S.E.2d 336 (1990), we discussed the use of a judgment imposed after a no contest plea. We cited several cases passing on this question. State Bar v. Hall, 293 N.C. 539, 238 S.E.2d 521 (1977); Winesett v. Scheidt, Comr. of Motor Vehicles, 239 N.C. 190, 79 S.E.2d 501 (1954); State v. Thomas, 236 N.C. 196, 72 S.E.2d 525 (1952); and In re Stiers, 204 N.C. 48, 167 S.E. 382 (1933). See also Lane-Reticker, Nolo Contendere in North Carolina, 34 N.C.L.Rev. 280 (1955). The rule from these cases is that a plea of no contest is not an admission and may not be used against the defendant in another case. In those cases it was also held that when a no contest plea was accepted the court must impose a sentence based on the plea and may not adjudge the defendant guilty. Because a court could not adjudge the defendant guilty on a no contest plea there was not a conviction to be used in another case.

N.C.G.S. § 15A-1022(c) (1989) has changed the rule that a court may not adjudicate the defendant's guilt on a plea of no contest. Before a court may now accept a plea of no contest it must make a finding that there is a factual basis for the plea. This amounts to an adjudication of guilt. There is now an adjudication of guilt on a no contest plea and the rationale of the above cases that there is not an adjudication on a no contest plea which may not be used in another case no longer applies. The adjudication of guilt on the no contest plea was properly used by the Commissioner in this case to revoke the petitioner's driving privilege.

REVERSED.

FRYE, Justice, concurring in result.

The Court's decisions today in this case and in State v. Outlaw, 326 N.C. 467, 390 S.E.2d 336 (1990), follow naturally from this Court's holding in State v. Holden, 321 N.C. 125, 161-62, 362 S.E.2d 513, 535-36 (1987), to which I dissented. While I continue to believe that Holden was incorrectly *341 decided insofar as it held that a no contest plea and final judgment entered thereon constituted a conviction under N.C. G.S. § 15A-2000(e), it is now the law of this State, and I am bound thereby. Accordingly, I concur in the result reached by the Court.