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STATE v. KEITH7/26/1991
a second or subsequent offense, the prior offense or offenses must be alleged in the charging instrument and proved at trial. See 15 M.R.S.A. § 757; McClay, 146 Me. at 108-112, 78 A.2d at 350-52; see also Landry v. State, 575 A.2d 315, 317 (Me. 1990). We are not convinced, however, that Keith's sentence in this case was imposed pursuant to section 1312-B(2)(C).
In sentencing Keith, the court did not recite that it was sentencing him pursuant to section 1312-B(2)(C), under which its sentencing discretion would be limited by that section's mandatory minimum penalty provision. Instead, the court made clear that it was exercising its discretion to impose a sentence within the sentencing range authorized for a Class D offense. The court thus had the discretion to sentence Keith to imprisonment for a period of up to 364 days, and to impose a fine of up to $1000. 17-A M.R.S.A. § 1252(2)(D), 130191-A)(D). Because the Class D sentencing provisions, unlike section 1312-B(2)(C), do not increase the maximum or provide for a mandatory minimum nonsuspendable sentence based on a prior conviction, the court was free to take Keith's prior alcohol incident into account in sentencing Keith pursuant to those provisions. See 15 M.R.S.A. § 757; 29 M.R.S.A. § 1312-B(3). We are unpersuaded that the court, fully aware of the statutory and constitutional prohibitions against imposing an enhanced punishment for being a second offender where the prior offense was not alleged, acted contrary to those prohibitions.
Although the court's stated intent was to impose a sentence within the discretionary range of a Class D offense, it erred in imposing a license suspension of one year. The 90-day license suspension provision provided for in section 1312-B(2)(B) is not a mandatory minimum, but rather a nondiscretionary period of suspension that must be imposed on a person that is sentenced for operating under the influence, who has a
The entry is:
Sentence modified to substitute a 90-day license suspension for the one-year license suspension imposed by the Superior Court, and, as modified, affirmed.
All concurring.
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