Devore v. State

657 N.E.2d 740, 1995 Ind. LEXIS 165, 1995 WL 689767

• Court: Indiana Supreme Court
• Decided: November 22, 1995
• Docket: 55S01-9506-CR-783
• Status: Published

Opinions

SHEPARD, Chief Justice.

This is the second of two appeals asking whether a conviction for operating a vehicle while intoxicated which is enhanced from a class A misdemeanor to a class D felony under the provisions of Indiana Code Section 9-30-5-3 may be enhanced a second time under the habitual substance offender provisions of Section 85-50-2-10.

Two panels of the Court of Appeals split on this question. In this case, the court held that appellant Eric S. Devore could be sentenced under both statutes. We conclude otherwise.

I. Statement of Facts

In October 19983, the police arrested De-vore for driving while intoxicated. The State charged him with operating a vehicle while intoxicated (OWI), Ind.Code Ann. § 9-80-5-2 (West 1992),¹ and sought to elevate the charge from a class A misdemeanor to a class D felony, Ind.Code Ann. § 9-80-5-8 (West 1992).² It further charged him with being a habitual substance offender, Ind.Code Ann. § 35-50-2-10 (West Supp.1994), and with multiple other driving infractions.³

A jury found Devore guilty of operating a vehicle while intoxicated, as a class D felony, and the trial court adjudged him a habitual substance offender.⁴ The court sentenced him to three years imprisonment for O.W.I. and enhanced that sentence by five years for the habitual substance offender determination.

Devore appealed his cause to the Indiana Court of Appeals and it affirmed. Devore v. State (1995), Ind.App., 650 N.E.2d 37. We grant Devore's petition for transfer.

Devore presents the following issues:

1. Whether the trial court erred in enhancing Devore's punishment under both the OWI statute and the habitual substance offender statute;

2. Whether there was sufficient evidence to support the trial court's judgment that Devore was a habitual substance offender;

3. Whether there was sufficient evidence to support Devore's conviction for OWI; and,

4. Whether Devore's sentence enhancements placed him twice in jeopardy.

We answer the first issue affirmatively and thus reverse Devore's habitual substance offender adjudication. We therefore need not address the second and fourth issues. We agree with the Court of Appeals that there was sufficient evidence to support Devore's OW1I conviction and thus summarily affirm its opinion on that third issue. Ind.Appellate Rule 11(B)(B).

II. Double Emhancement of Devore's Sentence

Devore alleges that the trial court erred by twice enhancing his penalty for operating a vehicle while intoxicated: first, when the court increased his penalty from a class A misdemeanor to a class D felony under the authority of Sections 9-30-5-2 and 3 and, second, when it enhanced his term of imprisonment by finding him a habitual substance offender under Section 35-50-2-10.

We explain today in Freeman v. State (1995), Ind., 646 N.E.2d 1021, that a defendant's sentence should not be twice enhanced through chapter 9-30-5 ⁵ and Section 30-50-2-10, the same statutes under which Devore was convicted. We conclude that chapter 9-30-5 is a definite and specific statute which supersedes the general habitual substance offender statute. Freeman (1995), Ind., 646 N.E.2d 1021. In the absence of clear legislative language to the contrary, such double enhancement cannot be permitted.

III. Conclusion

Accordingly, we reverse Devore's enhancement as a habitual substance offender.

The judgment of the trial court is otherwise affirmed.

DeBRULER, DICKSON and SELBY, JJ., concur. SULLIVAN, J., dissents with separate opinion.

1 . Formerly Ind.Code Ann. § 9-11-2-3 (West Supp.1988).

2 . Devore's sentence was eligible for enhancement because he had been convicted of operating a vehicle while intoxicated in 1989, within five years of the offense at issue as required by Section 9-30-5-3.

3 . The State charged Devore with driving with a suspended license, Ind.Code Aun. § 9-24-18-5 (West Supp.1994), a class A infraction, driving without proof of financial responsibility, Ind. Code Ann. § 9-25-8-2 (West Supp.1994), a class C misdemeanor, and operating a vehicle with an expired registration plate, Ind.Code Ann. § 9-18-2-7 (West 1992), a class C infraction. Devore was convicted of these offenses and has chosen not to appeal them.

4 . The trial court reached this conclusion based on evidence of Devore's two prior unrelated convictions involving controlled substances. He was convicted of operating a vehicle while intoxicated in 1989, a class A misdemeanor, and was convicted of the same charge again in 1992. We do not know whether his 1992 conviction was entered as a felony or a misdemeanor. (R. 20.)

5 . Formerly Ind.Code Ann., ch. 9-11-2 (West Supp.1988).