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State v. Marshall11/14/2003
e Utah Supreme Court rejected this argument, explaining that
FN5. Numerous other jurisdictions have rejected ex post facto challenges to enhancement statutes that take into account prior DUI convictions. See State v. Yellowmexican, 142 Ariz. 205, 688 P.2d 1097, 1099 (Ct.App.1984) (citing cases from other jurisdictions and stating that "[e]nhanced punishment statutes for repeat offenders have been consistently upheld against arguments that they violate ex post facto proscriptions" and holding that, in the case before it, "[t]he punishment imposed under [the Arizona DWI recidivist statute] is based on the third DWI [and] does not increase the penalty for the [two] prior convictions"), approved en banc by 142 Ariz. 91, 688 P.2d 983 (1984); Roberts v. State, 494 A.2d 156, 157 (Del.1985) (holding that "the mandatory sentencing provision of the statute is not an ex post facto law as it applies to this defendant, since the enhanced punishment could be invoked only after a second offense, and, in this case, the second offense took place after the statute had been
amended"); Botkin v. Commonwealth, 890 S.W.2d 292, 295 (Ky.1994) (rejecting defendants' ex post facto challenge and holding, "[h]ere the offenders are not being punished for crimes committed prior to the effective date of the [enhancement] statute, but for a crime committed thereafter, albeit they received a greater punishment by reason of their status as prior offenders for other driving under the influence offenses"); Bailey v. State, 728 So.2d 1070, 1074 (Miss.1997) (upholding enhancement statute and stating: "The statute regarding third-offense DUI charges has not been changed such that [defendant] would be receiving a stronger punishment than that enumerated in the statute at the time [defendant] committed his third DUI [;] ... therefore, the ex post facto analysis is inapplicable."); State v. Brander, 280 Mont. 148, 930 P.2d 31, 35 (1996) (rejecting defendant's ex post facto challenge and stating that "the increase in punishment at issue here is a consequence of [defendant's] present offense only and this enhancement neither punishes any previous conduct nor increases the penalty for any prior conviction of DUI[; rather,] the enhancement of [defendant's] present DUI to felony status is nothing more nor less than current punishment for his repetitive drunk driving offense"); State v. Hansen, 258 Neb. 752, 605 N.W.2d 461, 464 (2000) (upholding enhancement statute and stating: "In the instant case, [defendant] is not receiving
additional punishment for his previous convictions, but he is being penalized under the newly amended statutory scheme for persisting in committing the offense of DUI."); State v. Edwards, 302 S.C. 492, 397 S.E.2d 88, 89 (1990) (rejecting defendant's argument "that the legislature did not intend for the 1988 amendment to apply 'retroactively' to allow consideration of his 1983 conviction [in determining the degree of his current DUI offense]" because "the clear and unambiguous language of the amendment indicates that the new 10 year period is to be used in determining the degree of any DUI committed on or after January 1, 1989").
[t]he habitual criminal statute will apply only upon a conviction of the criminal offense last charged. Its invocation does not inflict additional or further punishment for the prior convictions or impose a new punishment therefor. It only serves to make more severe the punishment for the last or subsequent offense which might be imposed because of the previous convictions.
Our habitual criminal statute does not require that the prior convictions of an accused be subsequent to its enactment or amendments thereto. It has been generally held that a state may enact such statutes that would consider and apply convic
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