862 P.2d 421 | Nev. | 1993
OPINION
This is an appeal from a judgment of conviction, pursuant to a conditional plea of guilty, of one count of driving under the influence of alcohol, third offense. The district court sentenced appellant to serve a term of eighteen months in the Nevada State Prison. Appellant contends that the district court erred in sentencing appellant for third offense DUI because his two prior DUI convictions are both for first offense DUI. We disagree.
The facts of this case are not disputed: Appellant acknowledges that prior to the instant offense, he had two prior DUI convictions. Appellant’s first conviction occurred on May 6, 1985. The second conviction occurred on August 7, 1990, when the munici
In State v. Smith, 105 Nev. 293, 774 P.2d 1037 (1989), and Perry v. State, 106 Nev. 436, 794 P.2d 723 (1990), we concluded that a second DUI conviction obtained pursuant to a guilty plea entered under an agreement specifically permitting the defendant to enter a plea of guilty to first offense DUI could not be used to enhance a third DUI offense to a felony, because doing so would violate the agreement under which the guilty plea was entered and would frustrate the reasonable expectations of the parties.
In the present case, the record reveals that appellant’s 1990 conviction was erroneously treated as a first offense by the prosecuting authorities. Appellant’s treatment as a first offender was not the result of a negotiated plea bargain on that specific issue. Appellant did not acquire any substantive rights merely because the state failed to discover appellant’s 1985 conviction or because the state failed to charge appellant with committing a second DUI offense. Barring the special conditions mentioned in Smith and Perry, a defendant’s prior DUI convictions are properly used to enhance a third conviction to a felony, regardless of the sequence of the offenses or convictions. See NRS 484.3792(2). Accordingly, we conclude that the district court did not err in denying appellant’s motion to suppress the evidence and the district court properly sentenced appellant for third offense DUI. The judgment of conviction is affirmed.