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State v. Russell10/31/1991
MINZNER, Judge.
Defendant appeals his sentence for driving while under the influence of intoxicating liquor (DWI) as a fourth conviction under NMSA 1978, Section 66-8-102(E) (Cum. Supp. 1990). A district court jury convicted defendant under Section 66-8-102 for an incident that occurred on March 25, 1990. At the sentencing hearing, defendant conceded that on three separate occasions in 1983 he pled guilty and was convicted of driving while intoxicated, contrary to a Farmington municipal ordinance. However, defendant argued that the municipal court convictions could not be used to enhance his sentence under the state statute. The district court considered the conviction a fourth conviction under the statute and sentenced defendant to the mandatory six month jail term followed by six months of probation provided for a "fourth and subsequent conviction." See 66-8-102(E)(2).
While this case was pending on appeal, defendant twice moved for release from incarceration pending disposition of his appeal. The motion was denied while the case remained assigned to the summary calendar. After the case was assigned to the general calendar, defendant renewed his motion, and following a telephonic oral argument before a panel of this court, the case was remanded for an evidentiary hearing on the question of whether defendant was entitled to release pursuant to NMSA 1978, Section 31-11-1(C) (Cum. Supp. 1990). After the evidentiary hearing, defendant was released subject to conditions imposed by the district court. At that time, defendant had served six months in the San Juan County Detention Center.
Although defendant has raised five points on appeal, in effect he makes two claims of reversible error: (1) the prior convictions on which the district court relied were uncounseled convictions in which defendant had not voluntarily, knowingly, and intelligently waived his right to counsel, and (2) Section 66-8-102 does not provide for the use of prior convictions under a municipal ordinance to enhance a later conviction under the statute. We conclude the prior convictions were valid. Further, after examining the history of Section 66-8-102 and its apparent purpose, we believe there is sufficient textual support within Section 66-8-102 and in the definitions provided under the Motor Vehicle Code, see NMSA 1978, §§ 66-1-1 and -4 (Repl. Pamp. 1989), to permit us to conclude that the legislature intended both district and magistrate courts to recognize a conviction under a prior municipal court ordinance in distinguishing a first offender from a subsequent offender. We are not persuaded, however, that the legislature's purpose in providing a mandatory jail sentence for a fourth or subsequent offense requires that Subsection E(2) be construed to require a mandatory six-month term of imprisonment on these facts, and we think there is insufficient support in the text of Section 66-8-102 or elsewhere to justify such a construction.
Therefore, we reverse and remand for resentencing. On remand, the district court may take into account the existence of the three prior convictions under municipal court ordinance in deciding what sentence would be appropriate.
I.
As defendant correctly points out, prior uncounseled convictions cannot be used to enhance a sentence unless the defendant
voluntarily, knowingly, and intelligently waived the right to counsel in the prior case. See . Defendant concedes that
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