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STATE v. BROOKS4/5/1995
t 39 (statutory reference in charging document, uniform traffic ticket, relevant to aid defendant in identifying all specific elements of the offense); State v. Myrick, 436 A.2d 379, 381-82 (Me. 1981) (mere existence of 17-A M.R.S.A. § 51 placed defendant on notice that voluntariness of conduct had to be proved by state even though not alleged in indictment).
Brooks could refer to section 1312-B, mentioned in the complaint, to determine the temporal relationship between the date of his prior OUI conviction and the date of his new offense and that his sentence had to be enhanced. In this case, the only logical reason for alleging a prior OUI conviction in the complaint is to secure an enhanced mandatory sentence, and such a mandatory sentence can be imposed only if the prior conviction occurred within six years of the new offense. See State v. Warner, 237 A.2d 150, 156 (Me. 1967) (conviction upheld for reckless homicide consisting of reckless operation of motor vehicle causing death of another person when death resulted within one year, even though indictment did not allege that death occurred within one year). We are convinced that a defendant of reasonable and normal intelligence would understand that if he were convicted of the offense as alleged in the complaint against Brooks, he would be subject to the enhanced mandatory sentencing pursuant to section 1312-B(2)(C).
The entry is:
Judgment affirmed.
WATHEN, C.J., ROBERTS, RUDMAN and DANA, JJ., and COLLINS, A.R.J., concurring.
I must respectfully dissent. 29 M.R.S.A. § 1312-B(2)(F) (Supp. 1994) provides:
For purposes of this section, a prior conviction has occurred
within the 6-year period provided if the date of docket entry
by the clerk of a judgment of conviction or adjudication is 6
years or less from the date of the new conduct which is
penalized or for which the penalty is or may be enhanced.
In the instant case the language in the complaint that "the said defendant having previously been convicted of a violation of Title 29 M.R.S.A. § 1312-B," failed to specify that the conviction was within the past 6 years.
The Maine Constitution confers on an accused the right " o demand the nature and cause of the accusation." Me. Const. art. I, § 6. 15 M.R.S.A. § 757(1) (Supp. 1994) requires that a prior conviction be "specially alleged" in a prosecution for any crime when the sentence must be enhanced based on that prior conviction. Section 757(1) provides that the prior conviction must be "alleged as part of a count in the complaint, information or indictment . . . in an ancillary charging
When a sentence is imposed pursuant to a statutory provision
that provides for an increased maximum sentence, or that limits
the discretion of a sentencing court by requiring a mandatory
minimum nonsuspendable sentence for a second or subsequent
offense, the prior offense or offenses must be alleged in the
charging instrument and proved at trial.
State v. Keith, 595 A.2d 1019, 1021 (Me. 1991).[fn1a] Failure to allege the previous conviction precludes the court from imposing the mandatory minimum penalty set out in section 1312-B(2)(C). Id.
The attempt to distinguish Keith, where the complaint did not allege any prior conviction, on the ground that the complaint in this case should be "interpreted in a commonsense manner and . . . not . . . subjected to arbitrary or overly technical tests such as were applied at common law," State v. Carter, 444 A.2d 37, 39 (Me. 1982), does not satisfy the statutory mandate. It is only when a conviction within six years is pleaded and proved that a defendant is subjecte
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