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Firey v. State7/14/2002
s sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes.
If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy.
In Todd v. State, the Alaska Supreme Court pointed out that even if an offense is a lesser-included offense, double jeopardy does not bar the imposition of separate punishments for both the greater- and lesser-included offenses if the legislature clearly intended to allow multiple punishments.
The penalties associated with driving while intoxicated support the conclusion that the legislature intended to have a separate penalty applied for that offense, even if the defendant is also separately convicted of assault. A defendant convicted of assault in the first degree faces a substantial jail term. A defendant convicted of driving while intoxicated, on the other hand, faces substantially less jail time but numerous other penalties. A driving while intoxicated defendant faces a minimum restriction of his privilege to drive. A court is required to revoke privileges to drive for a period of not less than ninety days for a first offense, one year for a second offense, three years for a third offense, and five years for subsequent violations. The court is also directed to impose a specified minimum fine. The legislature directs the court to have the defendant evaluated for rehabilitative treatment and authorizes the court to impose the recommended treatment. The legislature requires the defendant to pay for the cost of imprisonment and perform community work service.
This review is not a complete statement of the penalties the legislature has provided for DWI offenders, but it is sufficiently extensive to illustrate the fact that the legislature has placed particular emphasis on both punishing and treating those convicted of DWI. It seems clear to us that the legislature did not intend for a defendant to evade these penalties because his DWI offense led to injuries and a conviction for assault.
We accordingly conclude that the legislature has expressed its clear intent to allow separate punishments for DWI and assault. Judge Card did not violate Firey's double jeopardy rights by allowing separate convictions and sentences for assault in the first degree and driving while intoxicated.
Sentencing issues
As a first felony offender convicted under AS 11.41.200(a)(1), Firey faced a presumptive sentence of five years of imprisonment. Judge Card found that Firey had extraordinary prospects for rehabilitation and that imposition of the five-year presumptive term would be manifestly unjust. Based on these findings, he referred Firey's case to the three-judge sentencing panel. Following a sentencing hearing, the three-judge panel concluded that Firey did not have extraordinary prospects for rehabilitation but average to good rehabilitative potential. The three-judge panel remanded the case back to Judge Card, finding that imposition of the presumptive sentence would not be manifestly unjust. Firey argues that the three-judge panel erred in not accepting his case. But our review of the three-judge panel's decision shows that it was not clearly mistaken. The three-judge panel properly could have concluded that Firey did not have exceptional prospects for rehabilitation. Furthermore
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