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Hubbard v. Com.9/10/2004
Glen F. Hubbard appeals from the portion of a final judgment of the Campbell Circuit Court convicting him of operating a motor vehicle on a DUI- suspended license, second offense, while under the influence of intoxicants, in violation of KRS [FN1] 189A.090(2)(b). We reverse and remand.
FN1. Kentucky Revised Statutes.
Hubbard was arrested on June 14, 2002. As a result of the incident on that date, he was indicted on three counts by a Campbell County grand jury. Count I charged Hubbard with operating a motor vehicle on a DUI-suspended license, second offense, while under the influence of intoxicants, in violation of KRS 189A.090(2)(b). Count II charged Hubbard with driving under the influence (DUI), third offense, in violation of KRS 189A.010(5)(c). Count III charged Hubbard with being a persistent felony offender in the first degree (PFO I) in violation of KRS 532.080(3).
Prior to Hubbard entering his guilty pleas, the Commonwealth agreed to amend the PFO I charge to persistent felony offender in the second degree (PFO II). Hubbard then pled guilty to DUI, third offense, and to operating a motor vehicle on a DUI-suspended license, second offense, while under the influence of intoxicants. His guilty plea to the latter charge was pursuant to a conditional guilty plea entered in accordance with RCr [FN2] 8.09. He also entered a conditional guilty plea to PFO II.
FN2. Kentucky Rules of Criminal Procedure.
In accordance with the plea agreement, Hubbard was sentenced to five years in prison on the charge of driving on a DUI-suspended license, second offense, while under the influence of intoxicants, enhanced to eight years in prison due to his PFO II status. He was sentenced to twelve months in the county jail and fined $500 on the charge of DUI, third offense. That sentence ran concurrently with the eight-year sentence as a matter of law. See KRS 532.110(1)(a). Hubbard's appeal followed.
In order to understand Hubbard's arguments in this appeal, it is necessary to review his prior offenses and the applicable statutes. On December 20, 1994, Hubbard was convicted of driving on a DUI-suspended license in Harlan County, and his license was revoked until December 20, 2004. [FN3] On October 19, 1999, Hubbard was convicted of DUI, first offense, in the Campbell District Court, and his license was suspended until December 28, 1999. On November 17, 2000, Hubbard was convicted of DUI, second offense, in the Madison District Court, and his license was revoked or suspended for twelve months. On the same day, Hubbard was convicted of driving on a DUI-suspended license while under the influence of intoxicants, and his license was revoked or suspended for an additional twelve months. These offenses occurred on June 14, 2002.
FN3. The record does not show why Hubbard's license was revoked for ten years at that time.
The DUI statute is set forth in KRS 189A.010. KRS 189A.070 provides for license revocations for persons convicted of DUI under KRS 189A.010. When Hubbard was convicted of DUI, second offense, on November 17, 2000, his license was revoked for twelve months pursuant to KRS 189A.070(1)(b).
KRS 189A.090(1) sets forth the offense of operating a motor vehicle on a license *421 suspended or revoked due to DUI. The statute provides that a person convicted of a first offense under the statute is guilty of a Class B misdemeanor and his license is revoked for six months, unless he was also violating the DUI statute (KRS 189A.010) at the time, in which case he is guilty of a Class A misdemeanor and his license is revoked for one year. See KRS 189A.090(2)(a). When Hubbard was convicted of operating a motor vehicle on a DUI-suspended license on November 17, 2000, his license was revoked for one year pursuant to that statu
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