City of Dodge City v. Wetzel5/28/1999
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The interpretation of statutes involves questions of law over which our standard of review is unlimited. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
The definition and penalties relating to the crime of DUI at the time applicable to the conviction on appeal are set forth at K.S.A. 1994 Supp. 8-1567, which, in relevant part, provides:
"(f) On the third or a 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 not less than $1,000 nor more than $2,500. . . . ". . . . "(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section: "(1) 'Conviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section; (2) 'conviction' includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution; (3) only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and "(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense."
Dodge City contends the DUI offense committed September 24, 1995, was a second offense resulting in it having continuing subject matter jurisdiction over the charge during its appeal to the district court and the conviction should be reinstated.
Dodge City seizes on the wording of K.S.A. 1994 Supp. 8-1567(k)(3), that only convictions occurring in the immediately preceding 5 years shall be taken into account for the purpose of determining whether a conviction is the first, second, or third. It reasons the February 24, 1991, offense occurred within the preceding 5 years of the current offense, which occurred on September 24, 1995, but that the offense occurring October 14, 1996, is not within the immediately preceding 5 years of the offense that occurred on February 24, 1991, and could not become a second conviction for sentencing purposes. (By definition, "precede" means "to come before in time." The 1991 date precedes the 1995 and 1996 dates, but the essence of the argument is whether the offenses are within "the immediately preceding five years.")
Wetzel argues that when the Kansas Legislature added the wording now found in K.S.A. 8-1567(k)(4) that "it is irrelevant whether an offense occurred before or after conviction for a previous offense" (L. 1985, ch. 48, § 9), it did so to change the result in the cases of State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983) and City of Chanute v. Wilson, 10 Kan. App. 2d 498, 704 P.2d 392, rev. denied 238 Kan. 877 (1985), where it was held that enhancements required that each succeeding offense be committed after conviction for the preceding offense. When the statutory language is applied, Wetzel contends, it does not now matter when the conviction finally results for an earlier charge. He further contends that the October 14, 1996, Pawnee County offense resulting in a January 9, 1997, diversion must be counted as a second offense, making the Dodge City charge a third of
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