*1 modify the common law socio-econom- believe, because, grounds I condi- ic adopt
tions which led the Court to those changed, rules have not and therefore a justified. change in the is not common law natural rule is a accumulation common country rule for areas of the sense those ice and in the winter are a where snow fact life. common and unmistakable states, similar cli- neighboring Our with mates, have retained the rule that a land- is not liable for the natural accumu-
owner open of ice lation and snow which obvious, though even those states have open danger and obvious doc-
abolished
Albertson’s, Inc., trine. Cereck v.
(1981);
O’Donnell
Mont.
rative statute enacted legislature 1971 in order to abolish the danger open and obvious rule. The Court today continues that misconstruction of
comparative negligence statute abolish- ing the natural accumulation rule. I dis- Gen., Boise, Jones, Myma A.I. Atty. Jim sent for reasons set out above and Atty. Gen., plaintiff- Stahman, Deputy for Shavers, opinion Baker v. dissenting my argued. appellant. Myma A.I. Stahman Inc. Elkins, Ketchum, for defendant-
Brian E. respondent. BAKES, Justice. Chief P.2d 215 Idaho, Plaintiff-Appellant,
STATE of a appeals from the dismissal charge driving criminal (DUI). of alcohol Defendant the influence CRAIG, Defendant-Respondent. E. David respondent had been convicted No. 18124. entry Prior prior DUI’s. two Supreme Idaho. Court of conviction, arrested 12, 1990. June this offense. After the second third DUI entered, an filed conviction was complaint this case to amended felony DUI. The defendant *2 Craig hearing waived a preliminary provisions and a tions of the of section 18- felony Code, (5) Craig information years, was filed. then Idaho information, felony notwithstanding judg- moved to dismiss the the form ments) granted. judgment(s), which the court The or withheld shall be guilty felony____ felony prosecution dismissed the on the grounds that the second conviction must argues provision The State that this does prior occur to the third violation.1 The require prior not two convictions to the appeals. We reverse. gives arrest for the rise DUI offense which felony charge. argues 23, 1985, January Craig pleaded On 18-8005(3) requires further that I.C. guilty driving to § and was convicted of un- specific sequence, only requires but that a occurring der the influence for a violation guilty defendant be found of three or more August 12, 1988, 1984. On October years DUI offenses within five before the Craig pleaded guilty to and was convicted imposed. Craig enhanced can be for the second DUI that occurred on Au- (3) (4) responds that subsections I.C. citation, gust 1988. After the second together, 18-8005 must construed be § prior (October 12th) but to the second con- (4) requires that subsection that two DUI viction, Craig was cited for a third DUI subsequent convictions must occur both to Craig offense on precede 1983 and must the third DUI ar- pleaded guilty not to the third offense and subject rest in order for a defendant to be jury demanded a trial. (4) charge. felony to a Subsection of I.C. On November the State filed an 18-8005, relies, upon Craig stated § offense, complaint amended third that: charging Craig felony DUI. Subse- (4) (2) purposes paragraphs For the quently felony information was filed. (3) section, of this convictions dismiss, arguing filed a motion to provisions of section 49- violation of pro- that the information his due violated Code, Idaho shall be considered rights. cess On the district to determine if a later convic- the court court, granted in a memorandum decision tion is a second or conviction Craig’s motion to dismiss the information only if such convictions were of viola- ground on the that the second conviction July tions committed on or after must entered to the commission of be (4) Craig’s argument is that subsection mo- the third DUI in order for the third (3) and that the use of the difies subsection appeals felony. to constitute a The State (4) man- term “conviction” in subsection this order. argues dates for. The district the result foregoing present facts the follow- However, Craig’s argument. upheld ing appeal: limited issue on must a disagree. we DUI conviction DUI viola- precede a third 18-8005(3) clearly if a I.C. states that § order for the defendant to be sub- (pleads guilty or is defendant is convicted felony ject to a I.C. within guilty) found of three DUI violations 18-8005(3)? purely Our task is one of § felony. years, five he has committed interpretation. statutory We have support district Craig, of the Counsel precise any previous this issue on sidered dismissal, nevertheless, argues, court’s occasion. (4) modified subsection that subsection action, At time of this I.C. (3) effect that the two viola- 18-8005(3) pertinent part: read judgment § must reduced to before tions (3) person pleads guilty to or is third violation occurs order for Any who apply. viola- enhancement found of three or more Subsequent order of 18-8005. The district court also dismissed § dismissal information, upon the State filed an amended the same amended information based attempt satisfy district information in an original grounds on which he dismissed concern that the defendant had received court’s information. appropriate required notices I.C. scatterguns in opening fact argument on the that The State’s brief bases and inconsistent directions. uses the term “violation” four different subsection mandatory brief sees no rather than the term “conviction.” First the State’s promulgated by the Su- suggests that each subsection stat force in the rules together to preme ute must be construed ascer Court: legislative Messenger tain the intent. does not Code 18-8005 Idaho § *3 Burns, (1963); Idaho 86 DUI case be in- a defendant in a that Bakery, Academy re Gem In consequences of future formed (1950). Idaho Rather, re- this notification violations. by for court rule. However, (4) quirement provided is a only states that subsection nothing body the crimi- determining per- a There is the of purposes for of whether to requires notification a has convicted of three DUI viola- nal law that son potential penalty to years, the be tions within five those convictions defendant of or upon for committed on after of a criminal imposed were violations 1,1983. this, July Beyond subsection that the state su- offense. The fact (3). way court, rule, modifies imposed subsection such preme duty upon the does not a lower courts long We conclude that as as a defendant process rise a due violation give to if found of more viola- “is three or procedure is not such mle-made fol- 18-8004, of of tions the section lowed. Code, (5) years," he Idaho ... felony, regardless a of has committed added). Brief, (emphasis Appellant’s preceded third the whether the violation Second, conceding that the State while second conviction. provide the district court with had failed to dismissing the order of establishing compliance documentation the information and the amended informa- 9.1, argues that un- with M.C.R. against Craig reversed is therefore rule, presum- der the the court erred remanded with to reinstate directions ing compliance: the amended information. Admittedly, these documents were not it provided to the district court before JOHNSON, McDEVITT, BOYLE and May its memorandum de- issued JJ., concur. granting Craig’s motion to dismiss. cision 9.1, M.C.R., But, upon the BISTLINE, based Rule Justice, dissenting. presumed have court should district recognize, majority the fails to What his fully had been advised of address, adequately to the State fails provides penalties. Rule 9.1 rights and forcefully asserts. issue defendant must, sentenc- at or before court a be here is whether defendant should sub- notice defen- ing, provide a written ject the harsh conviction before may penalties that dant as to the brought to reality of such a conviction is imposed violations. The only way threat of an en- bear. The then sets the recommended forth is if penalty can deter conduct hanced form, is This to be used. form provided the time prospective defendant DUI’s, case whether be used in the of all Here, Craig alter his conduct. second, third, first, or is the subse- it jeopardy receiving an enhanced placed offense, explains the enhanced quent for his third violation before sentence and the penalties for both the second change ways had chance to his after ever period. year within a five third violations second conviction. regularity presumption There is a I common sense When combine the that a court does. all enhancing considerations added). Brief, (emphasis Appellant’s shameful for DUI to a with the Third, State, apparent I reliance on showing State in this made sovereigns, takes for disagree majority. right with the the divine forced to am granted it can introduce new evidence on a Confronted as we are with internal incon- motion for reconsideration:2 brief, sistencies in the State’s this Court place should be
Prior hesitant to much to the district reliance issuing May its argument. on the State’s Should re- decision, we memorandum other scind Rule 9.1 because it need than for not be fol- presumption regularity State, according lowed or observe court, afforded to the actions of a there instead that the State relies on the rule? was no evidence as to whether or not recognize Should we State claims been notified of presumption arising benefit But, from subsequent violations. at the time Or, the rule? ignore should we the State's hearing on the protestations, and direct our attention to reconsideration, state’s motion for highly respected actions of a district provided state showing documentation judge? I would choose the latter. The very clearly that on three different occa- succinct, memorandum enough decision is sions clearly had been *4 notified that repetition: allow for a third DUI offense years is a felony. (Appendices K, L, M.) Thus, & appears 1. It that Idaho Code 18- clearly district court erred in its con- 8005(3) necessarily contemplates that a clusion that ‘fully not been defendant guilty must be found or must rights penalties.’ (R., advised of his and plead guilty on two occasions 53.) p. commission of a third D.U.I. Appellant's Brief, 7. necessarily light 2. This is inso rights and which are discussed A fourth tenet of the State’s brief ad- pleads guilty a defendant when he proposition vances the that neither the dis- to a second D.U.I. When a defendant properly trict court nor this Court can pleads D.U.I., to the second he must be requirement cern itself relative to the of informed that a third offense will result forewarning charged a defendant: felony charge. appear a It does not The state determining submits that specifically the defendant was in- whether ‘the specifically defendant was 12, 1988, formed at this October sentenc- 12, 1988, informed at his'October sen- ing that the offense occurred on which tencing that the offense which occurred September 1988, might result in a 26, 1988, September on might result in a felony charge sentencing. after such felony charge sentencing’ (R., after such Therefore, cannot, by way of p. emphasis added) is not an issue amended information after the October proper appeal any for this court on or for 12, 1988,'sentencing, Septem- elevate the any sentencing court at time. A court ber felony. offense to a To hold other- duty does not owe a DUI defendant the result in the wise would defendant not to determine whether he has another being fully rights pen- advised of his and pending DUI and inform him as to the alties. possible present guilty plea effect of his Defendant’s Motion to Dismiss is here- Rather, pending complying on the DUI. by GRANTED and counsel for defendant general provisions with the notice of prepare is directed to an Order consistent 9.1, M.C.R], complies Rule I.M.R. [sic with this decision. rights. with the defendant’s Brief, Brief, Appellant’s (emphasis origi- Appellant’s 7-8 Appendix A—Memoran- nal). dum Decision.3 ruled, 3, 1989, May the court had on one before the court when it ruled on After State filed three motions: A motion to re- consider; (2) augment A motion to the record discovered; newly with evidence which was not give To a the interested readers more com- A motion to amend the information. involves, plete perspective per- of what this case reasons, grounds, The State tendered no excus- parts Craig’s Ap- tinent of brief are attached as es, explanations or which could entitle it to pendix A. belatedly up differing make a record from the originally charged on the Defendant was correctly para- noted convictions, first with a offense
graph 1 that two either Af- guilt plea of Citation. through finding or a DUI in Idaho Uniform guilty, prerequisite subjecting plea are a the Defendant entered ter I.C. DUI guilty defendant offense 18-8005(3). elects County Where defendant Case No. Blaine § guilty plea, Complaint to enter a the rules of No- to amend on elected presiding judge 16, 1988, also ascer- charged the Defen- vember plea is tain for himself that dant with a DUI. knowingly intelligently. made both specific The district court made a per general provides find- that a appear- the defendant’s court ing that at only may punished as a recidivist son ance October when sentence previously have shown to when being then imposed, that the sentence or crimes defined convicted one more imposed on and there October generally es by statute. It therefore
might in a sentence thereafter result alleged must sential up if another DUI came when and precede the date offense disposition. The district court was cor- sought punishment is to be the increased holding rect in its that the offense which imposed. 39 Am.Jur.2d Habitual Crimi September 26, 1988, was the occurred also, 24 A.L.R. 2d Section 6. See nal charge pending, only and could Criminal Stat 1247Annotated: ‘Habitual at be elevated circumstances *5 utes,’ holds finding majority that the opinion charge to a triable in State’s prior prerequisite it is a the improper, district court. Dismissal was not precede the conviction or convictions preclude pur- did the State’s but that principal offense in of the commission alleged the suit of a conviction on offense punishment under order to enhance 26, September statutes____ also, See criminal habitual (1977, Carlson, 26 560 P.2d A v. conviction sometimes leads defen- DUI Alaska), holding prior that each offense dants their and seek to reconsider actions sequence in in conviction must follow professional help. The State will some- under habitual crimi order to accumulate pro- times defendants to seek out v. statute. has been help. Today’s nal Carlson fessional decision closes [State v. superceded statute. See Linn door some of those defendants who on (Alaska State, Ct.App.1983); 658 P.2d perhaps the most from an- would benefit Rastopsoff, 659 P.2d and State v. other chance.
(Alaska Ct.App.1983).] A
APPENDIX Felton, Kan. case of State v. A portion defendant’s memorandum 817, 501, a similar situ- 399 P.2d involved filed support to dismiss in the of motion present regarding case ation with district court: timing applica- of offenses and the im- criminal act. The filed De- of a habitual against
The Information
as
are
follows:
parts:
portant
Part of the
dates
Felton
fendant contains two
on March
underlying of-
The Defendant was convicted
sets forth the
Information
1956,
Degree
First
fense,
September
of the crime of
on
which occurred
Robbery
Information was
part
which
In
as the foundational
alleged to have occurred
November
of fel-
predicate
the enhanced
hearing,
sentencing
DUI,
alleges
1954. At the
charges
ony
an
evidence of
authenti-
convicted of a
Court received
that the Defendant was
copy
prior
conviction which
23,1985,
cated
January
and October
DUI on
approxi-
on December
approximately
weeks af-
occurred
three
mately
the date on
charge.
one month after
ter
was cited for
current
charged with
the Defendant was
important aspect
this case is that
which
currently serving
one-year
sentence on
the offense which
alleged
having committed the underlying of-
2(b)
part
Information,
of the
where he
fense. The
appeal
issue on
was whether
was convicted one month after the com-
it was erroneous for the Court
apply
mission
underlying
offense. The
the habitual criminal act
where the
sentence in that
way
case
could
conviction had been obtained after the
deter
the commission of the offense
commission of the
resulting
offense
occurred in this case on
the second conviction.
reviewing
After
26, 1988. The
penalty
increased
statutes
authority
case
and the annotation
were
unable
deter his conduct and Mr.
above,
referred to
it is prerequisite viction or precede convictions the com-
mission
principal
offense in or-
der to
punishment
enhance the
the habitual criminal statutes.
[at]
holdings
These
are consistent with the
of such No. 18201. statutes is to an in- penalty creased in order to deter com- Supreme Court of Idaho. offense, mission of a subsequent penalty that an increase in would not June deter one yet who had not punished
victed and for an earlier of- opportunity fense. It is the to reform threat of more severe which serves to deter. 600 P.2d [at] Felton,
In State v. 399 P.2d aptly Court stated the rationale: ‘... and salutary provision it is a of law that discipline criminals who the law’s hitherto failed to reform convic- punishment tions and should form a class severely punished to more than first offenders.’
In this the same rationale and apply reasons Craig. to Mr. He is