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State v. Moody10/14/2005
Affirmed.
Before PIERRON, P.J., CAPLINGER, J., and BUKATY, S.J.
Gwendlyn Moody appeals her sentence as a fourth-time offender for driving under the influence (DUI). Moody argues that because the complaint recited only two or more prior DUI's, the district court was without jurisdiction to sentence her as a fourth-time DUI offender. We conclude that because proof of prior convictions is not an element of DUI, the district court did not lack jurisdiction to sentence Moody as a fourth-time offender. We further note that defendant's due process rights were not violated, because the complaint properly charged the defendant with a nonperson felony, and the defendant received notice at the plea stage of the possible penalties to be imposed for a fourth offense.
Moody also challenges the validity of the trial court's order requiring her to reimburse the Board of Indigents' Defense Services (BIDS) system for attorney and administrative fees. Moody argues that because the trial court failed to consider her financial condition and ability to pay, the order violated K.S.A. 2002 Supp. 22-4513(a). We affirm the trial court's order and find the consideration of a defendant's financial resources at the time the assessment is enforced, rather than at the time of assessment, provides an outcome consistent with the legislature's intent in enacting K.S.A. 2002 Supp. 22-4513.
Background
On July 29, 2002, the State filed a two-count complaint against Moody. Count 1 charged Moody with felony DUI, while count 2 charged her with failure to provide proof of liability insurance. In support of the DUI charge, count 1 alleged:
"Moody did operate or attempt to operate a motor vehicle, to-wit: 1988 Pontiac at Kellogg and Main, Wichita, Sedgwick County, Kansas, while under the influence of alcohol to the extent that he was incapable of safely operating said vehicle after having been previously convicted of DUI two or more times, to-wit: on the 4th day of April, 1989, in Wichita Municipal Court in Case No. TB92126, and on the 3rd day of February, 1998, in Wichita Municipal Court in Case No. 97TM13602."
Moody subsequently entered into a plea agreement whereby the State agreed to recommend as to count 1 that the defendant receive a controlling sentence of 1 year in the county jail and a fine of $1,500, to be served by 48 hours in the county jail, less credit for time served, immediately followed by 88 days on house arrest as a condition of probation. As to count 2, the State agreed to recommend a fine of $300 and that the two counts be run concurrently.
During the plea hearing, the district court observed that the complaint alleged two prior DUI convictions; Moody concurred with the accuracy of that information. The district court further noted that the court was not bound by the plea agreement and could impose the maximum fine and penalty on each count. The court then specified the maximum fine and penalty as follows:
" ount I, is one year in the County jail and a fine of $2,500, and count II, is up to 6 months in the county jail and a fine of $1,000 and [the court] could in fact order that those two sentences be served consecutively, or one after the other, and also that both fines be paid in the maximum amounts so the total penalty--the maximum penalty that you face is 18 months in the county jail and a fine of $3,500."
Moody pled guilty, and at sentencing the district court observed that Moody's criminal history included three, rather than two, prior DUI convictions. Moody concurred that she did in fact have three prior DUI convictions. Consequently, the court sentenced Moody as a fourth-time offender to a t
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