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State v. Anaya12/6/1996
n enhanced sentence is clear, we presume that the legislature did not intend an enhancement. . As we explained in Swafford :
In the area of criminal punishment, especially with respect to enhanced sentencing, we feel the legislature has an obligation to state its intentions as clearly as possible. When it cannot be said with certainty that the legislature intended to authorize the imposition of an enhanced sentence under particular circumstances, as a corollary to the rule that criminal statutes must be sufficiently clear and definite to inform a person of ordinary intelligence what conduct is punishable, we presume that the legislature did not so intend.
Id. (citation omitted).
{31} In this case, the legislature's intention regarding the application of the enhanced sentence is not clear. The habitual offender statute is highly punitive, , and it should not apply unless the legislature clearly and specifically states its intention within the body of the statute itself. See . The legislature's silence in both Section 31-18-17 and Section 66-8-102(G), is the strongest evidence that the legislature did not intend the habitual offender sentences in Section 31-18-17 to apply to felony DWI. The habitual offender statute existed prior to Section 66-8-102(G) and the legislature could have clearly made Section 31-18-17 applicable by merely adding a subsection (A)(3) thereto stating: "A felony under 66-8-102 (G)." Its silence or failure to so amend Section 31-18-17 speaks more strongly for the proposition that the legislature did not intend Section 31-18-17 to apply to fourth-time DWI's. Likewise Section 66-8-102 is completely silent with reference to the applicability of Section 31-18-17 to the newly created fourth degree DWI felonies. Since these statutes are highly punitive, they must be strictly construed, see , and the legislature's silence on the matter more clearly indicates to us its intention not to apply the enhanced sentences.
{32} Because these criminal cases involve the interpretation of two criminal statutes, the existence of any ambiguity as to their intended scope requires us to apply the rule of lenity. . Application of the rule of lenity requires that criminal statutes be interpreted in the defendant's favor when "insurmountable ambiguity persists regarding the intended scope of [that] statute." Id. This rule applies to "those situations in which a reasonable doubt persists about a statute's intended scope even after resort to 'the language and structure, legislative history, and motivating policies' of the statute." ), cert. quashed, 112 N.M. 641, 818 P.2d 419 (1991) (quoting Moskal v. United States, 498 U.S. 103, 108, 112 L. Ed. 2d 449, 111 S. Ct. 461 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 65 L. Ed. 2d 205, 100 S. Ct. 2247 (1980)). We hold that an insurmountable ambiguity exists as to the intended scope of these criminal statutes, and under the rule of lenity it should be resolved in the defendant's favor. See
{33} At common law, no number of convictions for any misdemeanor or misdemeanors could ever add up to or become a felony. Even though we agree that the legislature can make multiple convictions for misdemeanor DWI a felony, we do not agree that it intended to make this "new felony" a fourth degree felony for habitual offender sentencing purposes. We view this as a new or special felony. It changes the classification of a criminal act which is now and has been a misdemeanor into a felony for sentencing purposes only. We therefore conclude that it is a self-enhancing provision and strictly limited to four or more convictions for DWI. Section 66-8-102(G) contains its own particular enhancement provision by making a misde
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