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City of Norton v. Hurt4/18/2003
pent on parole. Anderson was not receiving an increased punishment on his prior offense, but an increased punishment on his new offenses because they were committed while he was on parole. Thus, there was no ex post facto violation in denying Anderson credit for the time spent on parole for his 1979 offense, even though the law in effect at the time of the commission of that offense would have provided for such credit." 274 Kan. at .
The same is true here. Hurt's violation occurred after the effective date of the amended ordinance. For legislation to violate the ex post facto prohibition, the criminal conduct must have occurred before the law was enacted. See Anderson, 274 Kan. at ___.
The Kansas Court of Appeals' decision in State v. Campbell, 9 Kan. App. 2d 474, 681 P.2d 679 (1984), dealt with a very similar issue. In Campbell, Campbell's sentence for a DUI conviction was enhanced because of a previous DUI conviction. Campbell argued that the enhanced punishment for subsequent DUI convictions was an ex post facto law because 8-1567 did not impose mandatory penalties for repeat DUI offenses when he committed his first DUI. Relying on State v. Jones, 214 Kan. 568, 521 P.2d 278 (1974) (upholding the enhanced penalty in the habitual criminal statute for driving without a license), the Court of Appeals rejected Campbell's claims and determined that the increased penalties for multiple DUI convictions in K.S.A. 8-1567 did not impose an ex post facto law. 9 Kan. App. 2d at 477.
The amendment to the Norton city ordinance is further supported by decisions in other states that have upheld amendments to their DUI statutes increasing the decay period for determining the level of punishment. See State v. Stoen, 596 N.W.2d 504, 507-08 (Iowa 1999) (upholding a 6-year increase in the decay period as applied to defendant who violated the amended statute only 52 days after the amendment was effective); State v. Rolen, 662 So. 2d 446, 448-49 (La. 1995) (upholding an amendment that extended the decay period from 5 years to 10 years); State v. Chapman, 685 A.2d 423, 424-25 (Me. 1996) (upholding a 4-year increase in the decay period and noting that the defendant had fair notice of the change in the statute which occurred 92 days before the violation); State v. Hansen, 258 Neb. 752, 754-55, 605 N.W.2d 461, 463-64 (2000) (upholding 4-year increase in the decay period); State v. Nilson, 364 N.W.2d 532, 533-34 (S.D. 1985) (approving 1-year increase in the decay provision of DUI statute even though it was not applicable to Nilson's two prior convictions).
Enhancement statutes, like sentencing guidelines or recidivist statutes, are common in state criminal laws and do not change the penalty imposed for the earlier conviction. Nichols v. United States, 511 U.S. 738, 747, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994). The amended Norton ordinance did not operate retroactively to increase the penalty for Hurt's prior DUI offense. Instead, the amended ordinance became effective prior to Hurt's second DUI violation and increased the penalty for the second violation only. Because the amendment does not affect Hurt's actions prior to its effective date, it is not an ex post facto law.
Affirmed.
ABBOTT, J., and NUSS, J., not participating.
LARSON, S.J., and CHRISTEL E. MARQUARDT, J., assigned.
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