 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
City of Dodge City v. Wetzel5/28/1999
he charges and ultimate conviction could never be elevated to a felony level for all of the reasons we set forth in City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997). The November 21, 1997, conviction of the appeal from the Dodge City Municipal Court does not become a felony conviction and does not result in the municipal charges being dismissed. The trial court's ruling of April 8, 1998, must be reversed.
Inherent in our reversal of the trial court's ruling dismissing the Dodge City complaint is the reinstatement of the jury verdict finding Wetzel guilty of DUI. Because the trial court's ruling of January 13, 1998, vacating Wetzel's sentence was not appealed by either party, Wetzel must be resentenced. In doing so, we specifically disapprove the trial court's belief that State v. Masterson is not applicable to municipal courts and require that it be applied when Wetzel is resentenced. We need not repeat the analysis of State v. Masterson, which, under the facts of this case, requires that Wetzel be sentenced as a first-time offender because the level of the offense was never specified by the Dodge City complaint. Wetzel has the right to know before trial the severity level of the crime being charged. State v. Masterson, 261 Kan. at 164.
Although we have considered all of the arguments made by both parties, we do not resolve this appeal based on Dodge City's argument that the offense which took place on February 24, 1991, did occur within the preceding 5 years of the offense which occurred on September 24, 1995, while the Pawnee County offense that occurred on October 14, 1996, was more than 5 years subsequent to February 24, 1991, and could not, therefore, meet the definition of a second conviction. There may or may not be merit to this argument, but we desire to resolve this appeal for the reasons we have previously stated and not have the result hinge on the "immediately preceding five years" wording. We recognize this may leave open for future determination other factual situations, but we limit our opinion to answering the specific issues raised.
We also do not find applicable our decisions in State v. Roderick, 259 Kan. 107, 911 P.2d 159 (1996), and State v. Patry, 266 Kan. 108, 967 P.2d 737 (1998), where the term "prior conviction" has been construed but not in a manner applicable to this case. Finally, we do not base our decision on the supplemental filing of Wetzel that State v. Bandy, 25 Kan. App. 2d 696 supports his arguments. While Bandy does discuss usage of "prior convictions" and the cases we have previously cited herein, it essentially relates to sentencing enhancement of a properly charged level 9 nonperson felony, in violation of K.S.A. 1994 Supp. 8-262(a)(1)(C), and its interrelation with the Kansas Sentencing Guidelines Act. These are not issues involved in our case and Bandy is not applicable.
The trial court's dismissal of the Dodge City DUI charge is reversed. The November 21, 1997, conviction is reinstated. The trial court is directed to resentence Wetzel as a first-time offender as required by State v. Masterson.
|