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State v. Jarrell4/22/2005
Affirmed.
Before GREENE, P.J., GREEN and CAPLINGER, JJ.
This appeal arises from two separate incidents of driving under the influence . Although Jarrell pled guilty to both offenses on the same date, we affirm the trial court's treatment of Jarrell's convictions as third and fourth convictions for sentencing purposes.
On September 26, 2002, Jarrell was charged in case No. 02CR2610 with driving under the influence of alcohol (DUI) and driving while suspended. The DUI was charged as a nonperson felony, and the complaint alleged the offense occurred on or about May 9, 2002, and was Jarrell's third DUI offense. The complaint specifically recited Jarrell's prior convictions of April 9, 1998, and August 31, 2001.
Nearly 1 year later, on September 4, 2003, Jarrell was charged in case No. 03CR1862 with a subsequent DUI offense, allegedly committed on or about September 19, 2002. This DUI charge also was alleged to be a nonperson felony and recited Jarrell's prior 1998 and 2001 DUI convictions.
Jarrell entered guilty pleas in both cases on December 8, 2003. The plea agreement disposed of both cases in one hearing; however, the cases were not formally consolidated. The trial judge stated at sentencing that he considered the matters to be "a consolidated proceeding."
Prior to sentencing, Jarrell filed a "Motion to Impose Sentence Under Penalty Provision of K.S.A. 8-1567(f) (2002 Supp.)," arguing he should be sentenced as a third-time offender on each of the December 8, 2003, DUI convictions. The trial court sustained this motion as to case No. 02CR2610, but overruled the motion in case No. 03CR1862. Thus, Jarrell's conviction in case No. 02CR2610 was treated as a third conviction for sentencing purposes and his conviction in Case No. 03CR1862 was treated as a fourth conviction. Jarrell was sentenced accordingly.
On appeal, Jarrell contends because the two convictions were simultaneously imposed, he should have been sentenced as though each conviction was a third conviction, rather than one conviction being a third conviction and the other a fourth.
The record reveals otherwise. Jarrell's two convictions were imposed under two separate complaints and case numbers. And although the trial court stated at sentencing that it considered "the cases -- the two new pleas and the two different cases to be a consolidated proceeding," at the plea hearing, Jarrell entered his guilty pleas separately according to case number and count.
K.S.A. 8-1567(f), which applies to case No. 02CR2610, states in relevant part:
"On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The court may also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse . . . ."
K.S.A. 2002 Supp. 8-1567(g), which applies to case No. 03CR1862, states in relevant part:
"On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. . . . After the term of imprisonment imposed b
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