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State v. Bruce Mayberry
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 176
Docket:	Yor-01-275
On Briefs: 	November 21, 2001
Decided:	December 26, 2001

Panel:        SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.




STATE OF MAINE v. BRUCE V. MAYBERRY

DANA, J.

	[¶1]	Bruce V. Mayberry appeals from a judgment of the Superior
Court (York County, Fritzsche, J.) affirming a judgment of the District Court
(Biddeford, Foster, J.) finding that he had committed a speeding violation. 
Mayberry contends that the District Court lacked subject matter jurisdiction
because the officer who gave him the ticket failed to present it to an officer
of the District Court for service in accordance with 4 M.R.S.A. § 171-A
(Supp. 2000) and M.R. Civ. P. 80F(b) and because the officer did not swear to
its validity under oath.  We disagree and affirm.
	[¶2]	The following facts are undisputed.  On March 3, 1999, Officer
Edmund Furtado pulled Mayberry over for driving at a rate of eighty-one
miles per hour in a sixty-five mile per hour zone.  Officer Furtado filled out a
violation summons and complaint (VSC) and gave a copy to Mayberry at the
scene.  The VSC was filed with the Violations Bureau on March 11, 1999. 
Mayberry contested the infraction, but the court (Biddeford, Janelle, J.)
entered a default judgment when Mayberry failed to appear.  Mayberry paid
the fine under protest.  Thereafter, he filed a request to set aside the default
judgment and moved to dismiss the case for lack of subject matter
jurisdiction on the ground that the State failed to serve the VSC properly. 
The court (Biddeford, Horton, J.) granted Mayberry's request to set aside
the default, after which the court (Biddeford, Foster, J.) denied Mayberry's
motion to dismiss and determined that he had committed the offense of
speeding.  Mayberry appealed to the Superior Court, which affirmed the
District Court's judgment.  This appeal followed.
	[¶3]	Mayberry contends that Officer Furtado failed to present the VSC
to the proper officer of the District Court for service upon himself and failed
to file the VSC with the Violations Bureau within five days after delivery to
Mayberry pursuant to 4 M.R.S.A. § 171-A and M.R. Civ. P. 80F(b).  Mayberry
also contends that the VSC was insufficient because the charges were not
sworn and affirmed under oath.
	[¶4]	The State contends that the officer properly served the VSC on
Mayberry pursuant to 29-A M.R.S.A. § 2601 (1996) & Supp. 2000, which
provides an alternative method for service.  According to the State, the
three day delay in filing the VSC with the Violations Bureau did not deprive
the court of subject matter jurisdiction and the law does not require a sworn
VSC for a civil traffic infraction.
	[¶5]	Mayberry cites 4 M.R.S.A. § 171-A, which provides, in pertinent
part:
	1.  Traffic infraction.  When a complaint is made to the
proper officer of the District Court charging a person with the
commission of a traffic infraction the officer of the District Court
shall cause to be served upon the person a Violation Summons
and Complaint or other process in such form and under such
circumstances as the Supreme Judicial Court shall by rule
provide.
By contrast, 29-A M.R.S.A. § 2601(7) (1996) provides:
	7.  Violation Summons and Complaint as summons.  The
Violation Summons and Complaint, when issued or delivered to
a person by a law enforcement officer or served on the person in
the manner prescribed by rule of the Supreme Judicial Court,
acts as an order to file written answer to the complaint on or
before the date specified in the summons.
	[¶6]	The statutes cited by Mayberry and the State provide alternative
methods of service for traffic infractions, as paragraphs (1) and (3) of Rule
80F(b) make clear:
	(b)  Commencement of Proceeding.  A proceeding under
this rule is commenced by delivery of a copy of a Violation
Summons and Complaint . . . . Such Violation Summons and
Complaint may be:

	(1) filled out and delivered to defendant personally by any
officer authorized to enforce the motor vehicle laws of this state
who has probable cause to believe that a traffic infraction has
been committed;

. . . .

	(3)  filled out by a prosecutor and delivered to the
defendant personally . . . . Any Violation Summons and Complaint
served as provided in this paragraph (3) may be filed in the
Violations Bureau by delivering it to the clerk . . . . 
Officer Furtado's actions complied with the method of service articulated in
29-A M.R.S.A. § 2601(7) and M.R. Civ. P. 80F(b)(1).  Service was, therefore,
proper.
	[¶7]	To accomplish service pursuant to M.R. Civ. P. 80F(b)(1) or (3),
"[w]ithin 5 days after delivery to defendant, the officer shall cause the
original of the Violation Summons and Complaint to be filed with the
Violations Bureau."  M.R. Civ. P. 80F(b).  Timing provisions in statutes are
not jurisdictional "unless the statute manifests a clear intent to the
contrary."  Davric Me. Corp. v. Me. Harness Racing Comm'n, 1999 ME 99, ¶
13, 732 A.2d 289, 294 (internal quotation marks omitted); see, e.g., State v.
Clark, 642 A.2d 159 (Me. 1994) (holding there was no jurisdictional defect
when a hearing on the termination of an intensive supervision sentence was
not held within the time prescribed by statute).
	[¶8]	Officer Furtado filed the VSC with the Violations Bureau three
days late.  M.R. Civ. P. 80F(b).  We conclude, however, that Officer Furtado's
delay in filing the VSC did not deprive the District Court of subject matter
jurisdiction because neither the statute nor the rule indicate that a failure to
comply affects the court's jurisdiction.
	[¶9]	Although Mayberry contends that the officer issuing a VSC must
swear to its validity under oath, Mayberry's citations to the oath
requirements of the Fourth Amendment of the United States Constitution
and article I, section 5 of the Maine Constitution are inapposite because the
service of the VSC did not constitute a search or seizure.  In addition, the
cases Mayberry cites that interpret rules and statutes involve the sufficiency
of criminal, rather than civil complaints and warrants.  See, e.g., People ex
rel. Livingston v. Wyatt, 79 N.E. 330 (N.Y. 1906) (holding that an information
in a criminal case must be made upon oath); Giordenello v. United States,
357 U.S. 480, 486-87 (1958) (holding that a criminal complaint must
affirmatively allege that the affiant had personal knowledge of facts giving
rise to the charge).  We conclude that an oath was not required by statute or
constitution.
	The entry is:
			Judgment affirmed.

Attorneys for State: G. Steven Rowe, Attorney General Melissa Reynolds O'Dea, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 For defendant: Bruce Vernon, Mayberry c/o 51 Sandbar Road Windham, ME 04062