This is a direct appeal by Kelly Shaffer from his adjudication
as a habitual violator pursuant to K.S.A. 8-284 et seq.
Shaffer argues the trial court's failure to comply with the
certification requirements of K.S.A. 1989 Supp. 8-2115(b)
deprived the court of jurisdiction to commence this proceeding.
The cited statute requires every judge or clerk of the court in
which a traffic conviction was had to prepare and forward to the
of motor vehicles a certified abstract of the record of the
proceedings in which the defendant was convicted.
Shaffer relies on State v. Topping, 8 Kan. App. 2d 467,
660 P.2d 578 (1983), to support his argument. In Topping, the
defendant was adjudicated a habitual violator by the district
court. His record included three convictions for driving under
the influence of alcohol and a "bail forfeiture" for the charge
of driving while his driver's license was suspended. The State
conceded one of the drunk driving charges was reduced to reckless
driving, an offense not listed in K.S.A. 8-285. The record of the
bail forfeiture offense did not include a certification from the
judge or clerk of the court attesting to the accuracy of the
record. The defendant argued that, in the absence of such
certification, the State could not rely on the record for his
adjudication as a habitual offender. This court held the
provisions of 8-2115(b) requiring that the abstract of conviction
from the county to the division be certified are mandatory. The
bail forfeiture offense could, therefore, not be relied upon in
the proceeding, and the habitual violator adjudication was
This case is distinguishable from Topper. Topper requires
the records of the convictions to be certified when the habitual
violator proceeding takes place according to the statutory
procedure. The procedure for adjudicating a person a habitual
violator is set forth in K.S.A. 8-286:
"Whenever the files and records of the division
shall disclose that the record of convictions of any
person is such that the person is an habitual
violator, as prescribed by K.S.A. 8-285 the division
forthwith shall certify a full and complete abstract
of such person's record of convictions to the
district or county attorney of the county where such
person resides. . . . Upon receiving said abstract,
the district or county attorney forthwith shall
commence prosecution of such person in the district
court of such county, alleging such person to be an
The State did not use the statutory procedure in this case. The
prosecution did not introduce a certified abstract of Shaffer's
three convictions from the division of motor vehicles. Instead,
the trial court took judicial notice of Shaffer's previous
convictions from its own records.
In State v. Skeen, 3 Kan. App. 2d 231, 592 P.2d 150 (1979),
this court held the statutory procedure is not the exclusive
method of adjudicating a person to be a habitual violator. In
Skeen, the State offered, and the court received into evidence,
a copy of the complaint issued on each of the defendant's
convictions. On the back of each was an abstract of the record of
the municipal court showing the charge, the plea, and the final
disposition. The defendant argued the provisions of K.S.A. 8-286
required the division of motor vehicles to certify a full and
complete abstract of his record of convictions to the county
attorney in order for proceedings to be commenced.
Although this court questioned why the State failed to utilize
the procedure outlined in K.S.A. 8-286, it reversed the lower
court's dismissal of the complaint. 3 Kan. App. 2d at 233. Skeen
holds that, although the statutory procedure is the preferred
method, it is not the exclusive method of adjudicating a person a
habitual violator. When the statutory procedure is not used, the
Skeen court stated: "The court is to make the determination of
whether the convictions are such as to constitute the accused an
habitual violator under the act; and when jurisdiction has
attached, that determination may be based upon any competent
evidence." 3 Kan. App. 2d at 233.
The competent evidence in this case is the trial court's own
records. See Smith v. State, 199 Kan. 293, 295, 429 P.2d 103
(1967). The State's failure to follow the statutory procedure
does not mandate reversal.
Shaffer further argues a nolo contendere plea to the offense of
driving while suspended cannot be used as one of the three
convictions required to adjudicate a person a habitual violator.
K.S.A. 22-3209(2) provides:
"A plea of nolo contendere is a formal declaration
that the defendant does not contest the charge. When
a plea of nolo contendere is accepted by the court,
a finding of guilty may be adjudged thereon. The plea
cannot be used against the defendant as an admission
in any other action based on the same act."
In State v. Holmes, 222 Kan. 212
, 563 P.2d 480 (1977), the
Kansas Supreme Court analyzed the effect of a plea of nolo
contendere. In Holmes, the defendant entered a plea of nolo
contendere to the offense of attempted aggravated robbery.
Following the acceptance of the plea but prior to sentencing, the
defendant was charged with involuntary manslaughter and unlawful
of a firearm. The issue on appeal was whether the defendant had
the status of a convicted felon when he possessed the firearm.
The court held that under K.S.A. 22-3209(2), "when a court
accepts a tendered plea of nolo contendere and adjudges a
finding of guilt thereon, the defendant at that point has ...