 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
City of Dodge City v. Wetzel5/28/1999
ng offense be committed after conviction for the preceding offense." 6 Kan. App. 2d 302, Syl. 1.
State v. Osoba related to the increased penalty for a DUI repeat offender and held that " nhancement of the sentence of a defendant as a second offender under K.S.A. 8-1567(d) requires that each succeeding offense be committed after conviction for the preceding offense." 234 Kan. 443, Syl. . Although relating to a different crime, this holding is identical to and follows State v. Wilson.
The Court of Appeals' decision in City of Chanute v. Wilson cited both State v. Wilson and State v. Osoba and held that " ursuant to K.S.A. 1983 Supp. 8-1567(i), the court may consider for purposes of sentence enhancement under K.S.A. 1983 Supp. 8-1567(e) convictions occurring within the five years preceding the date of defendant's present offense." 10 Kan. App. 2d 498, Syl. .
Both parties also seem to agree that in response to State v. Wilson and State v. Osoba, the 1985 Kansas Legislature amended K.S.A. 8-1567 to add subsection (j)(4) (now ), which provided that in considering previous convictions for DUI "it is irrelevant whether an offense occurred before or after conviction for a previous offense." L. 1985, ch. 48, § 9.
This amendment and its purported change of the Wilson and Osoba logic and holdings would be of interest if all of the violations were misdemeanors and we were attempting to address "which convictions should be considered at sentencing" as Wetzel requests. But, that is not what the issue here turns on. The question we must answer is "What is the severity level of the DUI offense being charged?"
When Wetzel was charged by Dodge City on September 24, 1995, he was charged with a municipal DUI violation. This could only be of a misdemeanor and cannot be enhanced into a felony by actions that occur after the charge is filed. Wetzel's commission of a new DUI offense (the Pawnee County October 14, 1996, charge and subsequent January 9, 1997, diversion) may not be a fortuitous event that has the effect of wiping out his municipal prosecution.
Such a result could not have been the intent of a legislature whose reasoning in enhancing punishment for additional violations was expressed by Justice Fontron in State v. Lohrback, 217 Kan. 588, 591, 538 P.2d 678 (1975), as follows:
"'The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.'"
It is axiomatic that the provisions of a law in effect at the time a crime or violation occurs governs the charges that may be filed and the penalties that may be assessed. State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991). In State v. Augustine, 197 Kan. 207, 210, 416 P.2d 281 (1966), we clearly stated that " he character of the defendants' acts became fixed when committed." We will not allow Wetzel to escape his previous actions by committing another DUI.
In applying this rule to the facts of this case, we hold Wetzel was properly charged with a misdemeanor DUI violation of Dodge City Ordinance Article I, Chapter 14, § 30(a)(3) as the result of his actions on September 24, 1995. This charge is not changed by subsequent acts and remained the same during its trial in the municipal court and throughout its eventual jury trial on appeal in the district court as is directed by K.S.A. 22-3609. T
Page 1 2 3 4 5 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|