People v. Vezina , 217 Mich. App. 148 ( 1996 )

550 N.W.2d 613 (1996) 217 Mich. App. 148

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Richard Dean VEZINA, Defendant-Appellant.

Docket No. 179672.

Court of Appeals of Michigan.

Submitted May 14, 1996, at Grand Rapids. Decided June 11, 1996, at 9:00 a.m. Released for Publication July 29, 1996.

Peter H. Shumar, Traverse City, for defendant.

Before DOCTOROFF, C.J., and NEFF and FITZGERALD, JJ.

PER CURIAM.

Defendant conditionally pleaded guilty in the district court of operating a vehicle while under the influence of liquor (OUIL), M.C.L. § 257.625(1); M.S.A. § 9.2325(1). He was sentenced to twenty-five days' incarceration and eighteen months' probation. The district court left the decision regarding revocation of defendant's operator's license with the Secretary of State. Defendant appeals by leave granted from the order of the Grand Traverse Circuit Court affirming the district court's denial of his motion to quash. We affirm in part and reverse in part.

Defendant had been convicted of OUIL on August 7, 1986. On July 18, 1993, defendant was arrested and charged with OUIL. Defendant entered a plea of guilty of OUIL on September 20, 1993, conditioned on his right to appeal the district court's determination that he was subject to enhanced penalties and licensing sanctions for that offense. Following the unsuccessful interlocutory appeal in the circuit court, defendant was sentenced on November 3, 1994, under the sentence enhancement provision of M.C.L. § 257.625(6)(b); M.S.A. § 9.2325(6)(b)^[1], and the license revocation provision of M.C.L. § 257.625b(5)(b)(iii); M.S.A. § 9.2325(2)(5)(b)(iii)^[2].

I

At the time of defendant's arrest and conviction, M.C.L. § 257.625(6); M.S.A. § 9.2325(6) provided in pertinent part:

If a person is convicted of violating subsection (1), the following shall apply:

* * * * * *

(b) If the violation occurs within 7 years of a prior conviction, the person shall be sentenced to both a fine of not less than $200.00 or more than $1,000.00 and either of the following:

(i) Performing service to the community for a period of not less than 10 days or more than 90 days and may be imprisoned for not more than 1 year.

(ii) Imprisonment for not less than 48 consecutive hours or more than 1 year, and may be sentenced to service to the community for a period of not more than 90 days.

At issue in this case is the meaning of the word "violation." Defendant contends that the word "violation" is synonymous with the word "conviction" and that the Legislature's intent was to enhance a sentence when a conviction occurs within seven years of a prior conviction.

The primary goal of statutory construction is to find and give effect to the Legislature's intent. People v. Stanaway, 446 Mich. 643, 658, 521 N.W.2d 557 (1994). To ascertain that intent, this Court must first turn to the language contained within the challenged statutory provision. People v. Williams, 205 Mich.App. 229, 232-233, 517 N.W.2d 315 (1994). If the language is clear and unambiguous, statutory construction by this Court is precluded. People v. Armstrong, 212 Mich.App. 121, 123, 536 N.W.2d 789 (1995).

In the present case, the statute is clear and unambiguous, but "violation" is not defined. Where a statute does not define one of its terms it is customary to look to the dictionary for a definition. See Energetics, Ltd. v. Whitmill, 442 Mich. 38, 45, 497 N.W.2d 497 (1993). Random House Webster's College Dictionary defines "violation" as:

1. the act of violating or the state of being violated. 2. a breach or infringement, as of a law or promise. 3. a sexual assault. 4. desecration; profanation. 5. a distortion of meaning or fact. Review of this common definition clearly indicates the plain meaning of the statute is that a sentence for an OUIL conviction must be enhanced if the OUIL statute was violated within seven years of a prior OUIL conviction. Consequently, the law must be applied as written. People v. Cannon, 206 Mich.App. 653, 655, 522 N.W.2d 716 (1994). Because defendant committed the present OUIL offense within seven years of a prior OUIL conviction, the trial court correctly enhanced defendant's sentence under § 625(6)(b).

II

At the time of defendant's arrest and conviction, M.C.L. § 257.625b(5)(b)(iii); M.S.A. § 9.2325(2)(5)(b)(iii) provided:

Immediately upon acceptance by the court of a plea of guilty or nolo contendere or upon entry of a verdict of guilty for a violation of section 625(1), (3), (4), or (5) or a local ordinance substantially corresponding to section 625(1) or (3), whether or not the person is eligible to be sentenced as a multiple offender, the court shall consider all prior convictions currently entered upon the Michigan driving record of the person, except those convictions which upon motion by the defendant, are determined by the court to be constitutionally invalid, and shall impose the following sanctions:

* * * * * *

(b) For a conviction under section 625(1) or a local ordinance substantially corresponding to section 625(1):

* * * * * *

(iii) If the court finds that the person has 1 or more prior convictions within 7 years for a violation of section 625(1) ..., the court shall order the secretary of state to revoke the operator's or chauffeur's license of the person and shall not order the secretary of state to issue a restricted license to the person. [Emphasis added.]

The glossary for the Vehicle Code defines conviction as

a final conviction, the payment of a fine, a plea of guilty or nolo contendere if accepted by the court, or a finding of guilt or probate court order of disposition of a child found to be within the provisions of chapter XIIA of Act No. 288 of the Public Acts of 1939, being sections 712A.1 to 712A.28 of the Michigan Compiled Laws, on a traffic law violation charge, regardless of whether the penalty is rebated or suspended. [M.C.L. § 257.8a; M.S.A. § 9.1808(1).[^[3]]

The term "conviction" must be applied as expressly defined. People v. Chupp, 200 Mich.App. 45, 49, 503 N.W.2d 698 (1993). Thus, the plain meaning of the statute is that when a defendant pleads guilty of OUIL and stands convicted of that offense, the trial court must look to all the defendant's prior convictions to determine whether any occurred within seven years of the date upon which defendant was convicted, and, if there is a prior conviction for OUIL within that seven-year period, the trial court must order the Secretary of State to revoke the defendant's operator's license. This interpretation is consistent with M.C.L. § 257.303(2)(c); M.S.A. § 9.2003(2)(c), which mandates that the Secretary of State revoke a person's operator's license if the person's driving record contains two OUIL convictions within a seven-year period.

Here, there is no dispute that defendant's first conviction occurred on August 7, 1986, and that the present conviction occurred on September 20, 1993. Under these facts, neither the trial court nor the Secretary of State had authority to revoke defendant's operator's license.

Affirmed in part and reversed in part.

NOTES

[1] After its amendment by 1991 P.A. 98, effective July 31, 1991, but before its amendment by 1994 P.A. 211, effective November 1, 1994.

[2] After its amendment by 1991 P.A. 93, effective July 31, 1991, but before its amendment by 1994 P.A. 211, effective November 1, 1994. See now M.C.L. § 257.625b(6)(b)(iii); M.S.A. § 9.2325(2)(6)(b)(iii).

[3] After its amendment by 1991 P.A. 99, effective January 1, 1992, but before its amendment by 1994 P.A. 449, effective May 1, 1995.