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State v. Smith5/25/2005
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[ ] Clifford Smith appealed from a criminal judgment, entered upon Smith's conditional guilty plea to the charge of driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01, and causing serious bodily injury to another. We hold Smith's sentence to 90 days incarceration under N.D.C.C. § 39-08-01.2(2), is an illegal sentence in violation of the maximum penalty of 30 days incarceration for class B misdemeanors permitted under N.D.C.C. § 12.1-32-01. We, therefore, reverse Smith's sentence and remand for resentencing in accordance with this opinion.
I.
[ ] On August 15, 2004, Smith was charged with the class B misdemeanor of driving under the influence of alcohol and having an alcohol concentration of least eight one-hundredths of one percent in violation of N.D.C.C. § 39-08-01(1). Smith entered a conditional plea agreement to the charge admitting that his conduct caused serious bodily injury to another person, as defined in N.D.C.C. § 12.1-01-04, and, consequently, the court sentenced Smith under N.D.C.C. § 39-08-01.2, which provides in relevant part:
39-08-01.2. Special punishment for causing injury or death while operating a vehicle while under the influence of alcohol.
1. The penalty provided in this section applies when:
c. A person is convicted of violating section 39-08-01 and the violation caused serious bodily injury, as defined in section 12.1-01-04, to another person.
2. . . . If the defendant was at least eighteen years of age at the time of the violation of section 39-08-01 or 39-08-03, the sentence under either section must be at least ninety days' imprisonment.
The court sentenced Smith to incarceration for 90 days, a fine in the amount of $250, and mandatory court fees.
II.
[ ] Section 12.1-32-01(6), N.D.C.C., limits the maximum penalty for a class B misdemeanor:
12.1-32-01. Classification of offense-Penalties. Offenses are divided into seven classes, which are denominated and subject to maximum penalties, as follows:
6. Class B misdemeanor, for which a maximum penalty of thirty days' imprisonment, a fine of one thousand dollars, or both, may be imposed.
Smith asserts the 90-day sentence of incarceration imposed by the court under N.D.C.C. § 39-08-01.2(2), violates the 30-day maximum incarceration penalty allowed under N.D.C.C. § 12.1-32-01(6), for class B misdemeanors and is illegal.
[ ] Construction of a criminal statute is a question of law, fully reviewable by the appellate court. State v. Buchholz, 2005 ND 30, 6, 692 N.W.2d 105. Our primary goal in interpreting statutes is to ascertain the legislature's intent, and we first look to the statutory language and give that language its plain, ordinary, and commonly understood meaning. Id. Statutes are construed to give meaning and effect to every word, phrase, and sentence. Id. If possible, the court construes statutes on the same subject to harmonize them and to give full force and effect to the legislature's intent. State v. Higgins, 2004 ND 115, 13, 680 N.W.2d 645. The court construes statutes relating to the same subject matter to give effect to both. Id. Criminal statutes are strictly construed in favor of the defendant and against the government. State v. Beciraj, 2003 ND 173, 14, 671 N.W.2d 250. Thus, in interpreting penal statutes, we resolve any doubt in favor of the criminal defendant. State v. Rohrich, 450 N.W.2d 774, 776 (N.D. 1990).
[ ] Under N.D.C.C. § 39-08-01(2), a person who is convicted of DUI for the first or second offense "is guilty of a class B misdem
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