City of Dodge City v. Wetzel5/28/1999
fense and, therefore, a felony required to be dismissed under the City of Junction City v. Cadoret ruling.
Wetzel also maintains the recent decision of State v. Bandy, 25 Kan. App. 2d 696, 971 P.2d 749 (1999), although relating to the offense of driving with a suspended license, requires a "prior conviction" to be construed as one which occurred prior to sentencing in the current case regardless of the time that the offense that led to the conviction occurred.
We commence our analysis with the basic statutory interpretation rule that
"' n construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.'" KPERS v. Reimer & Kroger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
It is also essential that we recognize that as "a general rule statutes should be construed to avoid unreasonable results." Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983).
In an attempt to increase highway safety and reduce recidivism, the Kansas Legislature has throughout the years increased penalties and criminal levels for repeat offenders. This pattern has been specifically applied to individuals who continue to consume alcoholic beverages and drive. Justice Six explained the enactments relating to DUI offenders in State v. Masterson, 261 Kan. 158, 163, 929 P.2d 127 (1996), when he said:
"In 1993, the legislature amended K.S.A. 8-1567(d), (e), and (f), adding to the prescribed penalties for first, second, and third DUI's the crime classifications of class B nonperson misdemeanor for a first offense, class A nonperson misdemeanor for a second offense, and severity level 9 nonperson felony for a third offense. L. 1993, ch. 259, § 8. Before the amendment, all DUI's were misdemeanors of the same class. The sentencing options would depend on whether the DUI was a first, second, or third conviction. In 1994, the legislature amended subsection (f), deleting 'severity level 9' and leaving the classification as 'nonperson felony' for a third offense. L. 1994, ch. 291, § 2. Under subsections (d), (e), and (f) of K.S.A. 1995 Supp. 8-1567, not only are the penalties for first, second, and third offenses prescribed, but the classifications of A or B misdemeanor or nonperson felony are also listed, according to the number of offenses."
The date of the offense, the date of the conviction, and the time between multiple offenses and convictions have of necessity become more critical since July 1, 1993, (the effective date of L. 1993, ch. 259, § 8). This is because each offense was previously classified only as a misdemeanor with increased penalty levels and fines, but the third DUI offense "occurring in the immediately preceding five years," K.S.A. 8-1567 (k)(3), now becomes a felony.
This wording, however, does not automatically raise the level of an existing charged crime and require that subject matter jurisdiction be lost for a violation that is pending on appeal for a trial de novo from a municipal court.
Both parties accurately portray the holdings of State v. Osoba, 234 Kan. 443; City of Chanute v. Wilson, 10 Kan. App. 2d 498; and State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1087 (1981).
The rule of State v. Wilson was that " nhancement of the sentence of a defendant as a third offender under K.S.A. 1980 Supp. 21-4504(2) requires that each succeedi
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