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State v. Gonzales12/15/2005
For Official Publication
Before Judges Billings, Davis, and McHugh.
The State appeals the trial court's order granting Abigail Flores Gonzales's (Defendant) motion to dismiss the charge of driving under the influence (DUI) with prior convictions, a third degree felony, in violation of Utah Code section 41-6-44. See Utah Code Ann. § 41-6-44(2), (6) (Supp. 2002). We reverse and remand.
BACKGROUND
In September 2002, Defendant was charged with driving under the influence of alcohol with prior convictions, a third degree felony, pursuant to Utah Code section 41-6-44. See id. The charge was based on the current offense and Defendant's two prior misdemeanor DUI convictions, which were entered on September 15, 1997, and February 14, 2001, in different justice courts after Defendant pleaded guilty to those charges. Defendant moved to dismiss the charge, arguing in essence that (1) the DUI statute itself does not permit enhancements based on convictions entered prior to July 1, 2001; (2) neither the statute nor the justice court judges provided "fair warning" that his prior convictions could support a later charge; and (3) his prior justice court convictions were insufficient to support the felony charge because justice courts are courts not of record.
At a preliminary hearing, Defendant called as witnesses the two justice court judges who received his prior guilty pleas. Both judges testified that, as a matter of routine, they advise defendants that a conviction based on a guilty plea may be used to enhance a later offense. The judge who received Defendant's 2001 guilty plea testified that she specifically recalled explaining the possibility of enhancement to Defendant. However, neither judge had evidence that Defendant was advised in writing of the possibility of enhancement, and the judge receiving Defendant's 1997 guilty plea testified that once a case is completed he routinely destroys all documents aside from the citation, information, and judgment.
The trial court addressed sua sponte the applicability of rule 9-301 of the Utah Rules of Judicial Administration, which requires justice court judges to provide defendants with oral and written notice of possible enhancements. The court concluded that, although the evidence indicated that Defendant had been advised of possible enhancement orally, he was not advised in writing as required by rule 9-301. The court determined that the State had not met its burden of proving that Defendant's prior guilty pleas were taken in accord with rule 9-301 and granted the motion to dismiss the enhanced penalty, stating that "failure of compliance with the ule [must] have some consequence." The State moved to reconsider, arguing that the trial court had failed to apply our decision in State v. Marshall, 2003 UT App 381, 81 P.3d 775, cert. denied, 87 P.3d 1163 (Utah 2004). The trial court denied the motion, determining that Marshall's holding applied only to courts of record and not to justice courts. The court then reiterated its position that where the State does not show by a preponderance of the evidence that the justice court complied with rule 9-301, the State cannot use the conviction to support an enhanced penalty. The State now appeals the trial court's ruling.
ISSUES AND STANDARDS OF REVIEW
The State contends that the trial court erred in requiring it to prove by a preponderance of the evidence that the justice court had complied with rule 9-301. We review a trial court's decision to grant or deny a motion to dismiss for correctness. See State v. Hamilton, 2003 UT 22, , 70 P.3d 111.
For his part, Defendant does not directly address the a
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