APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JANINE M. KERN Judge
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON JANUARY 9, 2012
[¶1.] John Willey appeals from a conviction on a Part II information charging that the accompanying driving under the influence (DUI) conviction was his third DUI offense. Willey argues that a conviction that occurred after his arrest on the principal offense was invalid for enhancement purposes. We reverse and remand.
FACTS & PROCEDURAL HISTORY
[¶2.] Willey was first arrested for DUI in 2008 in Pennington County. He was convicted in February 2009. Willey was arrested for DUI in May 2010 in Meade County. He pleaded guilty on August 30, 2010, and was convicted on September 27, 2010. Willey was last arrested for DUI on August 8, 2010 in Pennington County.*fn1
[¶3.] For Willey's August 2010 arrest, the State initially charged him with DUI second offense, but later amended the complaint to DUI third offense, a class 6 felony, because of Willey's guilty plea on August 30. An arraignment hearing was held in November 2010 after the State filed a Part II information that alleged Willey had two prior DUI convictions (February 3, 2009 and September 27, 2010). Willey filed a motion to strike the Part II information. He argued that the conviction from Meade County on September 27, 2010 was invalid for enhancement purposes under SDCL 22-6-5.2. The motion was denied.*fn2 The circuit court ruled that State v. Myers, 346 N.W.2d 436 (S.D. 1984), controlled, such that SDCL 32-23-4.1 did not impose a restriction on the use of the September 27, 2010 conviction. [¶4.] After a stipulated court trial in February 2011, Willey was convicted of DUI based on the August 8, 2010 arrest. The next day, a jury convicted him on the Part II information, finding that he had two prior DUI convictions, one on February 3, 2009 and one on September 27, 2010. Willey was sentenced to two years in the penitentiary. Willey appeals the enhanced conviction.
[¶5.] The parties do not dispute the findings of fact. The legal issue is whether the circuit court erred in concluding that, under case law and South Dakota statutes, the Part II information was valid. "Because the application of a statute to particular facts involves a question of law, we review the circuit court's conclusions de novo." State v. Talarico, 2003 S.D. 41, ¶ 10, 661 N.W.2d 11, 16.
[¶6.] The issue we address is whether a DUI conviction occurring after the arrest for the principal DUI offense could be considered to enhance the principal offense. Willey committed the principal offense before his guilty plea or conviction on his second offense. The circuit court overruled Willey's objection to using the second offense conviction to enhance the principal conviction. The circuit court and State rely on SDCL 32-23-4.1 and Myers, 346 N.W.2d 436. SDCL 32-23-4.1 provides in relevant part: "No previous conviction for, or plea of guilty to, a violation of § 32-23-1,*fn3 22-18-36, or 22-16-41 occurring more than ten years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense."
[¶7.] SDCL 32-23-4.1 was last amended in 2010. The only relevant authority relying on this statute is Myers, 346 N.W.2d 436. In Myers,the Court framed the issue as "whether the [ten-]year period prior to the date of the most recent violation must include the date of prior offenses or the date of conviction on such offenses to determine if the most recent violation is a second, third, or subsequent offense." Id. at 437. The Court concluded that the second conviction could be used to enhance even though the conviction occurred after the third offense "because SDCL 32-23-4.1 is a limitations statute designed to preclude the use of state convictions occurring [ten] years prior to the date of the most recent offense. This enhancement statute imposes no restriction on the use of convictions or pleas occurring after the most recent offense but before the plea or conviction on the most recent offense." Id.*fn4
[¶8.] Willey asserts that SDCL 22-6-5.2, enacted in 2005, applies to limit the effect of Myers' holding. SDCL 22-6-5.2 provides: "No enhanced penalty may be imposed for any second, third, or subsequent violation unless the defendant was convicted of or plead[ed] guilty or nolo contendere to the prior offense previous in time to committing the relevant second, third, or subsequent offense." Although we concluded in Myers that SDCL 32-23-4.1 did not impose a restriction on the use of convictions or pleas occurring after the principal offense but before the principal plea or conviction, we were not analyzing the statute under the direction of SDCL 22-6-5.2.
[¶9.] SDCL chapter 22-6 governs authorized punishments for all crimes unless a more specific statute controls. We can see no reason why SDCL 22-6-5.2 would not apply to SDCL chapter 32-23. The plain language of SDCL 22-6-5.2 controls. The Part II information in this case constitutes an enhanced penalty. Under the facts of this case, Willey cannot receive an enhanced penalty for a third offense DUI because he had not been convicted or pleaded guilty or nolo contendere to the second offense "previous in time to committing the relevant second, third, or subsequent offense."
[¶10.] We believe this outcome is consistent with State v. Gehrke, 474 N.W.2d 722 (S.D. 1991). In Gehrke we examined whether the sentence for the principal offense could be enhanced under SDCL chapter 22-7, the habitual offender chapter, if the conviction on the prior felony occurred after the commission of the principal offense. Id. at 724-26. We adopted the rule of a majority of jurisdictions that SDCL chapter 22-7 requires that the prior felony conviction precede the commission of the principal offense. Id. at 726. In addition to the language of SDCL 22-7-11 and ...