State v. Anaya , 123 N.M. 14 ( 1996 )

OPINION

FRANCHINI, Justice.

(1) On motion by Defendants for rehearing or such other relief as the Court deems proper and just, the opinion filed on May 31, 1996, is withdrawn, and the following opinion is substituted in its place.

(2) The legislature recently amended the basic statute criminalizing driving while intoxicated (DWI). See NMSA 1978, § 66-8-102 (Repl.Pamp.1994). The legislature provided, among other changes, that a person found guilty of a fourth offense of DWI “is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months which shall not be suspended or deferred or taken under advisement.” Section 66-8-102(G).

(3) We consolidated several appeals which raise two central questions about the recent amendment: (1) whether the State must prove three prior DWI convictions as an essential element of the offense of felony DWI; and (2) what, if any, formal notice must the State provide to the defendant in order to enhance misdemeanor DWI to felony DWI. Some of the appeals raise the additional question whether a conviction under Section 66-8-102(G) may be enhanced pursuant to the habitual offender statute. See NMSA 1978, § 31-18-17 (Repl. Pamp.1994). We hold that the most recent amendment to the DWI statutes did not alter the elements required to establish the offense of DWI and thus that proof of prior convictions is not an element of felony DWI. Moreover, we conclude that the legislature did not intend that defendants convicted of a fourth or subsequent DWI offense should be subject to enhancement under both the felony DWI provision and the habitual offender statute. Two of the defendants raised issues regarding their convictions and sentences other than those we address. Therefore, we reverse the sentences in four appeals, and remand two appeals to the Court of Appeals for review of other issues raised on appeal as explained below for each defendant.

FACTS

(4) Defendant Anaya was charged by information with DWI and bound over for trial following a preliminary hearing. He was convicted by a jury instructed solely on the elements of misdemeanor DWI. At sentencing the trial court made a finding that Anaya had three prior DWI convictions and sentenced him to 18 months in jail. The court suspended 12 of the 18 months. This resulted in a 6-month jail term, the minimum sentence permitted by Section 66-8-102(G). The State then filed a supplemental information alleging that Anaya had three prior felony convictions wholly unrelated to the charge of DWI — manslaughter in 1962, possession of marijuana in 1968, and possession of a firearm in 1979. The trial court sentenced Ana-ya to an additional 8 years as a habitual offender for a total of 8¹¿ years.

(5) The facts of Defendant Gonzales’s case are similar to those of Anaya’s. The State charged Gonzales by information with felony DWI and the misdemeanor offense of driving with a revoked license. At trial the court instructed the jury solely on the elements of misdemeanor DWI. While the jury was deliberating, the court heard evidence of five prior DWI convictions over Gonzales’s objections that the conviction documents were unattested. The court found that the State had proof of four prior DWI convictions in sequence within the meaning of State v. Linam, 93 N.M. 307, 309, 600 P.2d 253, 255, cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979), and Gonzales admitted these prior convictions. After the jury returned a guilty verdict, the court arraigned Gonzales on a supplemental information, which alleged that he was a habitual offender. Gonzales admitted that he had four prior felony convictions: burglary (1977), escape from jail (1983 and 1988), and possession of cocaine (1993). The trial court sentenced Gonzales to a total of 2k years: Vk years for felony DWI; 364 days for driving on a revoked license, to be served concurrently with the DWI sentence; and 8 years as a habitual offender.

(6) Defendants Kilgore and Irish were both convicted of felony DWI and sentenced to 18 months, 9 of which were suspended in both cases. Neither Kilgore nor Irish was subject to a sentence enhancement as a habitual offender.

(7) Anaya, Gonzales, Kilgore, and Irish all appealed to the Court of Appeals, which certified these cases to this Court for resolution of the common issue “whether the existence of three prior ... DWI convictions is an element of the new crime of felony DWT, or a sentencing matter to be considered at the enhancement stage of a felony DWI case.” In addition to the common issue certified, Anaya and Gonzales allege that the sentencing courts erred by enhancing their sentences pursuant to the habitual offender statute. Section 31-18-17. Anaya further asserts that the State failed to prove in sequence three prior DWI convictions in order to enhance the charges to a felony. See Linam, 93 N.M. at 310, 600 P.2d at 256; Koonsman v. State, 116 N.M. 112, 114, 860 P.2d 754, 756 (1993).

(8) The procedural postures of the remaining two appeals are somewhat different. After being charged with felony DWI, Defendant Nakai entered into an alternative plea agreement with the State in which he agreed to plead guilty to felony DWI if the State was able to prove any prior DWI convictions. In the event the State was unable to prove prior convictions, he would plead guilty to misdemeanor DWI. Following execution of this plea agreement, the State filed a supplemental information alleging that Nakai previously had been convicted of escape from jail and that he was a habitual offender. At a sentencing hearing the trial court heard evidence regarding Nakai's prior DWT convictions and found that the State had proven three such convictions. At that same hearing Nakai admitted the prior felony conviction. The court sentenced Nakai to 18 months for felony DWI. The court also adjudged Nakai a habitual offender and enhanced his sentence by 1 year for a total sentence of 2k years.

(9) Nakai appealed to the Court of Appeals, which affirmed his sentence by a memorandum opinion filed September 21, 1995. Nakai concedes that by pleading guilty he has waived his right to appeal on the ground raised by the other defendants — that proof of prior DWI offenses is an element of felony DWI. We granted certiorari in his case to address two other issues: (1) whether the State adequately notified him of the particular prior DWI offenses that it intended to use against him, and (2) whether the trial court properly enhanced his sentence pursuant to the habitual offender statute.

(10) The sixth and final defendant, Martinez, pleaded guilty to DWI in 1994. At sentencing the trial court found that he had three prior DWI convictions under Section 66-8-102(G) and imposed an 18-month sentence. Martinez admitted to two prior felony convictions — battery on a peace officer (1988) and great bodily injury by vehicle (1986). The trial court suspended 1 year of the 18-month sentence and enhanced it by 4 years, resulting in a sentence of 4¡é years. Martinez did not file an appeal. He did, however, file a pro se habeas corpus petition in district court. This petition raised, inter alia, the same issue raised by Anaya, Gonzales, and Nakai — that a sentence resulting from a felony DWI conviction cannot be enhanced under the habitual offender statute. The district court granted Martinez partial relief but denied him relief on this ground. We issued a writ of certiorari and consolidated his case with the other appeals.

DISCUSSION

I. Element of a Crime or Status for Enhancement; Procedural Consequences

(11) The issue before us is whether the legislature, in designating a fourth or subsequent DWI conviction as a fourth degree felony, contemplated a crime different from a first, second, and third DWI conviction— each charged and treated as a misdemean- or — or whether the fourth-degree-felony designation was intended only to enhance the punishment for repeat DWI offenders. If the legislature intended to establish a separate crime of felony DWI, then proof beyond a reasonable doubt of a defendant’s three prior DWI convictions would necessarily constitute an element of the offense. Anaya, Gonzales, Kilgore, and Irish argue that the State was required to present proof of prior convictions at the preliminary hearing stage as well as at trial.

(12) This issue has arisen before on petition for writ of prohibition or superintending control. See State ex rel. Whitehead v. Eastburn, S.Ct. Order No. 21,910 (Feb. 23, 1994). In that matter Judge Eastburn dismissed a charge of felony DWI because the State had failed to present proof of at least three prior DWI convictions at the preliminary hearing. Judge Eastbum’s order noted that the issue presented needed to be resolved promptly because it was an issue “which will affect over twenty prosecutions a month until answered.” After oral argument this Court issued a writ of prohibition. Our order stated “that NMSA 1978, Section 66-8-102(G) does not encompass the elements of the crime in terms of prior convictions in order to punish the accused, if convicted, of the felony provided for in the statute.” Based on this order, we directed Judge East-bum to order the defendant in that case bound over for trial notwithstanding the absence of proof of three prior DWI convictions at the preliminary hearing.

(13) As the Court of Appeals noted in certifying the appeals of Anaya, Gonzales, Kilgore, and Irish, our prior decision was not published, and thus it could not be relied upon to resolve the same issue raised in subsequent appeals. See Rule 12-405(C) NMRA 1996 (“An order, decision, or memorandum opinion, because it is unreported and not uniformly available to all parties, shall not be published nor shall it be cited as precedent in any court.”). However, we may take judicial notice of the record on file in this Court. State v. Turner, 81 N.M. 571, 576, 469 P.2d 720, 725 (Ct.App.1970) (Court of Appeals took judicial notice of stipulation pertaining to pending case filed in prior related case and of record in the Court of Appeals). We take judicial notice of our prior order in Eastbum because it underlies the Court of Appeals’ decision to certify the appeals of Anaya, Gonzales, Kilgore, and Irish and because it explains the procedures followed in district court in each of these appeals.

(14) We now issue a published opinion consistent with our prior unpublished order. We believe that the legislature did not intend to change the nature of the offense, but rather sought to increase the punishment for subsequent offenders by conferring fourth-degree-felony status on fourth or subsequent DWI convictions.

A. The Relevant Text and History of Section 66-8-102

(15) Section 66-8-102 sets forth the statutory scheme for DWI offenses. Subsections (A) through (D) contain the elements of the crime. For example, “[i]t is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this state.” Section 66-8-102(A). The remainder of Section 66-8-102 — Subsections (E) through (L) — is devoted entirely to sentencing matters and definitions. A person convicted under Section 66-8-102 is guilty of a misdemeanor punishable by a jail term of hot more than 90 days, a fine, or both. Section 66-8-102(E). A second or third conviction increases the fine and the possible jail term to not more than 364 days. Section 66-8-102(F). Subsection (G) further provides:

Upon a fourth or subsequent conviction under this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months which shall not be suspended or deferred or taken under advisement.

Section 66-8-102(G). Upon “any conviction,” an offender shall be “required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program and if necessary, a treatment program approved by the court.” Section 66-8-102(H).

(16)The legislature incorporated several substantive changes to the DWI laws in its most recent amendments. It (1) decreased the alcohol concentration level at which a driver is presumed intoxicated from 0.1 percent to 0.08 percent; (2) created a new “degree” of DWI — aggravated driving while under the influence — applicable to offenders with 0.16 percent alcohol concentration in their blood/breath or offenders who while driving under the influence cause bodily injury to another; (3) implemented sentencing guidelines for aggravated DWI; and (4) labeled fourth or subsequent DWI convictions as fourth degree felonies. However, the legislature did not change the basic definition of DWI as set forth in Section 66-8-102(A).

(17) The statutory scheme governing DWI defines the offenses of DWI and aggravated DWI and provides options for punishment in terms of imprisonment, community service, and referral and treatment programs at the trial court’s discretion. Furthermore, over the years gradual and consistent increases in punishment for repeated DWI violations and implementation of rehabilitation options have been adopted to counter the problem of DWI in New Mexico. There have been twelve amendments to the DWI laws since 1941,¹ and each amendment has adopted a slightly higher degree of penalty, be it a mandatory jail term or court-ordered treatment for alcohol or drug abuse.

(18) The legislature consistently has separated the basic definition of the offense from the sentencing provisions for repeat offenses. Compare § 66-8-102(A) (“It is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this State.”) with § 66-8-102(E) (“Every person under first conviction under this section ...”) and § 66-8-102(F) (“A second or third conviction under this section ... ”) and § 66-8-102(G) (“Upon a fourth or subsequent conviction under this section ...”). On the basis of this long-standing separation of offense definition and sentencing provisions, we conclude that in its deliberations the legislature more likely intended to enhance the sentence for repeat offenders rather than to create a new offense with discrete elements other than those already provided in Subsections 66-8-102(A) to (D).

(19) Moreover, the legislature has not provided for any alteration of DWI trial procedures for cases involving felony DWI charges. This is significant because if the defendant’s status as a repeat offender is an element of felony DWI, then that issue must be tried before a fact-finder and therefore should have been tried before a jury in some of the appeals before us. Such evidence of prior DWI convictions would constitute the sort of propensity evidence that our rules ordinarily preclude because of its highly prejudicial nature. See SCRA 1986, 11-404(B) (Repl.Pamp.1994). In other states the legislature has provided for a bifurcated trial so that a jury might decide the issue of guilt regarding the offense being charged before hearing evidence of prior offenses. See, e.g., S.D. Codified Laws Ann. §§ 32-23-4.2, - 4.3, -4.4 (1989) (in a case involving felony DWI, the information charged shall be in two separate parts, setting out the current offense in one and alleging the former conviction or convictions in the other; the second part of the information shall not be divulged to the jury until there has been a finding of guilt on the first part). However, our legislature has made no express provision for a bifurcated proceeding. This supports our conclusion that the legislature did not intend that the crime of felony DWI should have different elements from the crime of misdemeanor DWI.

B. State v. Stout

(20) Our determination that proof of prior DWI convictions is not an element of felony DWI is consistent with this Court’s reasoning in State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981). Stout considered the armed robbery statute, which provides that a first armed robbery offense is a second-degree felony whereas a second such offense is a first-degree felony. See NMSA 1978, § 30-16-2 (Repl.Pamp.1994). In that case the State learned of a previous armed robbery conviction several months after the defendant had been convicted of and had begun serving his sentence for second-degree armed robbery. The State then filed a supplemental information and obtained a conviction for first-degree armed robbery at a supplemental proceeding. The trial court subsequently vacated the original sentence and imposed a sentence of life imprisonment.

(21) On appeal the defendant argued that this procedure was improper and that he should have received notice, prior to trial, that the State intended to use his prior armed robbery conviction to seek an enhanced sentence. This Court disagreed, holding “[t]he state is not required to give the defendant notice before trial on the substantive offense that enhancement may be sought after conviction. By filing a pleading seeking to enhance the defendant’s sentence, the state has complied with the guidelines set out in [State v.] Rhodes], 76 N.M. 177, 181, 413 P.2d 214, 217 (1966) (holding that fairness requires pleading giving notice and opportunity to be heard before imposition of increased penalty) ].” Stout, 96 N.M. at 31-32, 627 P.2d at 873-74. The armed robbery statute at issue in Stout was similar to New Mexico’s DWI statute in that it provided both for a higher degree of offense and a more severe penalty for repeated violations. The Stout Court permitted the State to file a supplemental information alleging a prior armed robbery conviction after the defendant had already been convicted. Thus the Court did not view the earlier armed robbery conviction as an element of the crime — first-degree robbery — for which the defendant was ultimately convicted and sentenced. Rather, the Stout Court apparently viewed the offenses of second-degree robbery and first-degree robbery as including identical elements.

C. District Court Jurisdiction

(22) We note that the legislature specifically provided that only the district court would have jurisdiction over felony DWI. See § 66-8-102(1). By contrast, “[i]n the case of a first, second or third offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.” Id. Similarly, “[mjagistrates have jurisdiction in all cases of misdemeanors and petty misdemeanors ... [and they] also have jurisdiction in any other criminal action where jurisdiction is specifically granted by law.” NMSA 1978, § 35-3-4(A) (Repl. Pamp.1988). We cannot conclude from the fact that the legislature has restricted jurisdiction over felony DWI charges to the district court that the legislature thereby intended either to distinguish felony DWI as an offense with different elements than misdemeanor DWI or to mandate different trial procedures for felony and misdemeanor DWI.

D. Other Case Law Support

(23) We are not persuaded that the legislature intended to change the essential nature of the crime of DWI itself. Rather, we are persuaded that the legislature added fourth-degree-felony status in Section 66-8-102(G) in order to increase the punishment for repeat offenders. In the absence of evidence that the legislature intended to add an element to the crime of DWI, we will not read one into the statute. See State v. Powell, 114 N.M. 395, 401, 839 P.2d 139, 145 (Ct.App.1992). The Arizona Supreme - Court has held that under statutes like the one at issue here, “[t]he prior conviction is not an element of the basic offense, but a prior conviction does increase the penalty for that offense.” State ex rel. Collins v. Udall, 717 P.2d 878, 879 (Ariz.1986) (en banc); see also State v. Campa, 168 Ariz. 407, 814 P.2d 748, 752 (1991) (reaffirming Udall). But see People v. Bewersdorf, 438 Mich. 55, 475 N.W.2d 231, 236 (1991) (distinguishing status of habitual criminal, which legislature did not intend to make a separate substantive crime, from provisions governing DWI crimes, of which prior convictions are elements), cert, denied sub nom., Johnson v. Michigan, 502 U.S. 1111, 112 S.Ct. 1214, 117 L.Ed.2d 452 (1992). We are persuaded by the Arizona cases and therefore hold that the designation of a fourth or subsequent DWI offense as a felony does not create a new crime, but rather increases the punishment for offenders with multiple DWI convictions. See State v. Lyon, 103 N.M. 305, 311, 706 P.2d 516, 522 (Ct.App.) (enhancement sentence not an element of the conviction, but rather a consequence of the prior DWI conviction; it does not create a new class of crimes, but creates new consequences for the criminal conduct), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985); cf. State v. Lujan, 90 N.M. 103, 105, 560 P.2d 167, 169 (1977) (holding that habitual criminality, punishable under the habitual criminal statute, is a “status” rather than a separate offense).

E. Notice Requirement and Procedural Consequences

(24) Stout and the case upon which it relied, Rhodes, are also relevant to the next issue that we consider in this appeal: What formal notice must the State provide in order to enhance DWI misdemeanors to felonies? In Rhodes we held that the defendant was entitled to notice in the form of a pleading filed by the State before the trial court could enhance his sentence as a repeat offender under the Narcotic Drug Act. 76 N.M. at 181, 413 P.2d at 217. In Stout we held that the filing of a supplemental information and a supplemental hearing following conviction satisfied the notice requirement of Rhodes. See 96 N.M. at 31-32, 627 P.2d at 873-74; see also Caristo v. Sullivan, 112 N.M. 623, 631, 818 P.2d 401, 409 (1991) (hold ing that defendant is entitled to notice in the form of a pleading before the court may enhance his sentence pursuant to NMSA 1978, Section 31-18-15.1 (Repl.Pamp.1994)). In each of the cases before us, the State filed a criminal information alleging that the defendant had committed a felony in violation of Section 66-8-102(G). Furthermore, in each case the trial court conducted a hearing to determine whether the defendant had in fact been previously convicted of three or more DWI offenses. We are satisfied that these procedures satisfy the notice and hearing requirements of Rhodes and its progeny.

(25) However, as we noted earlier, the legislature intended to distinguish felony DWI from a first, second, or third DWI conviction in addition to providing an enhanced sentence. A fourth or subsequent offense is charged as a felony, over which the district court has exclusive jurisdiction. See § 66-8-102(1). Consequently, in the absence of more specific direction from the legislature, we think it appropriate that the State initiated criminal proceedings in this case pursuant to the constitutional guarantees associated with prosecution of a felony. N.M. Const, art. II, § 14 (“No person shall be héld to answer for a capital,' felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general____ No person shall be so held on information without having had a preliminary examination ... or having waived such____”). However, because proof of three such convictions does not constitute an element of felony DWI, a probable cause showing regarding the existence of three prior convictions was not required in order to support jurisdiction in the district court. We do not decide in this appeal whether the State’s approach was mandated. Rather, we determine the State did not deny Defendants due process by providing greater protection than the existing statute provides. Cf. Minner v. Kerby, 30 F.3d 1311, 1317 (10th Cir.1994) (“The State did not violate its own procedures, and thus did not violate due process, by charging appellant as an habitual offender by supplemental information.”).

II. Enhancement of a Felony DWI Conviction under Section 31-18-17

(26) We next must decide whether persons convicted under the felony DWI statute, Section 66-8-102(G), who have had one or more prior felony convictions are subject to further sentence enhancement as habitual offenders under Section 31-18-17. The applicable statute sections provide in pertinent part:

66-8-102.

G. Upon a fourth or subsequent conviction under this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months which shall not be suspended or deferred or taken under advisement.

81-18-17. Habitual offenders; alteration of basic sentence.

A.For the purposes of this section, “prior felony conviction” means:

(1) a conviction for a prior felony committed within New Mexico whether within the Criminal Code or not; or

(2) any prior felony for which the person was convicted other than an offense triable by court martial if:

(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;

(b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or

(c) the offense would have been classified as a felony in this state at the time of conviction.

B. Any person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred one prior felony conviction which was part of a separate transaction or occurrence or conditional discharge under Section 31-20-7 NMSA 1978 [31-20-13 NMSA 1978] is a habitual offender and his basic sentence shall be increased by one year, and the sentence imposed by this subsection shall not be suspended or deferred.

C. Any person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred two prior felony convictions which were parts of separate transactions or occurrences or conditional discharge under Section 31-20-7 NMSA 1978 [31-20-13 NMSA 1978] is a habitual offender and his basic sentence shall be increased by four years, and the sentence imposed by this subsection shall not be suspended or deferred.

D. Any person convicted of a non-capital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred three or more prior felony convictions which were parts of separate transactions or occurrences or conditional discharge under Section 31-20-7 NMSA 1978 [31-20-13 NMSA 1978] is a habitual offender and his basic sentence shall be increased by eight years, and the sentence imposed by this subsection shall not be suspended or deferred.

(27) Defendants argue that such enhancement would constitute an impermissiblé double enhancement. Defendants note that conviction under the felony DWI statute itself involves an enhancement from misdemeanor to felony. They argue that a second enhancement as a habitual offender is improper in the absence of clear evidence that the legislature intended to authorize that result. The State, on the other hand, asserts that there is no conflict between Section 66-8-102(G) and Section 31-18-17, and contends that the plain language of these statutes mandates the application of both enhancements. The State points out that Section 66-8-102(G) makes a specific reference to the felony sentencing provision, NMSA 1978, Section 31-18-15 (Repl.Pamp.1994), and that Section 31-18-15 in turn refers to Section 31-18-17. We note, however, that Section 66-8-102(G) makes no reference to 31-18-17. Further, Section 13-18-17 is likewise completely silent as to the applicability of Section 66-8-102(G).

(28) All parties agree that resolution of this issue requires us to ascertain and effectuate the intent of the legislature. See State v. Lujan, 76 N.M. 111, 117, 412 P.2d 405, 409 (1966); State v. Keith, 102 N.M. 462, 463, 697 P.2d 145, 146 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985). As Chief Justice Montgomery so eloquently stated in his parting instructions on statutory interpretation, “[W]e believe it to be the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994).

[C]ourts must exercise caution in applying the plain meaning rule. Its beguiling simplicity may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute’s meaning. In such a case, it can rarely be said that the legislation is indeed free from all ambiguity and is crystal clear in its meaning____ [I]t is part of the essence of judicial responsibility to search for and effectuate the legislative intent— the purpose or object — underlying the statute.

Id. Chief Justice Montgomery quoted Judge Learned Hand’s words that, “[a]s nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation.” Id. at 354, 871 P.2d at 1360 (quoting Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.1944)).

(29) It seems that for every rule of statutory construction there is an equal and opposite rule. We are distrustful of any formulaic approach in our efforts to facilitate and promote legislative purpose. The judicial branch simply must select the rationale that most likely accomplishes the legislative purpose — or best fills a void not addressed by the legislature. We assume that the legislature would have expressly stated any intention to add as much as eight habitual-felon years to its fourth-degree-felony enhancement of the misdemeanor of driving while intoxicated without personal injury. Applying Justice Montgomery’s instructions to the issue before us leads to the conclusion that those convicted of felony DWI should not be subject to habitual offender enhancement in the same manner as other felons.

(30) Statutes that define criminal conduct should be strictly construed and doubts regarding their interpretation or construction should be resolved in favor of lenity. State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853, cert. denied, 513 U.S. 936, 115 S.Ct. 336, 130 L.Ed.2d 294 (1994). Similarly, criminal statutes providing for more severe punishment should also be strictly construed. Id. Unless the legislature’s intention to apply an enhanced sentence is clear, we presume that the legislature did not intend an enhancement. Swafford v. State, 112 N.M. 3, 16, 810 P.2d 1223, 1236 (1991). As we explained in Swafford:

[I]n the area of criminal punishment, especially with respect to enhanced sentencing, we feel the legislature has an obligation to state its intentions as clearly as possible. When it cannot be said with certainty that the legislature intended to authorize the imposition of an enhanced sentence under particular circumstances, as a corollary to the rule that criminal statutes must be sufficiently clear and definite to inform a person of ordinary intelligence what conduct is punishable, we presume that the legislature did not so intend.

Id. (citation omitted).

(31) In this case, the legislature’s intention regarding the application of the enhanced sentence is not clear. The habitual offender statute is highly punitive, Lwjan, 76 N.M. at 117, 412 P.2d at 409, and it should not apply unless the legislature clearly and specifically states its intention within the body of the statute itself. See Swafford, 112 N.M. at 16, 810 P.2d at 1236. The legislature’s silence in both Section 31-18-17 and Section 66-8-102(G), is the strongest evidence that the legislature did not intend the habitual offender sentences in Section 31-18-17 to apply to felony DWI. The habitual offender statute existed prior to Section 66-8-102(G) and the legislature could have clearly made Section 31-18-17 applicable by merely adding a subsection (A)(3) thereto stating: “A felony under 66-8-102(G).” Its silence or failure to so amend Section 31-18-17 speaks more strongly for the proposition that the legislature did not intend Section 31-18-17 to apply to fourth-time DWI’s. Likewise Section 66-8-102 is completely silent with reference to the applicability of Section 31-18-17 to the newly created fourth degree DWI felonies. Since these statutes are highly punitive, they must be strictly construed, see Keith, 102 N.M. at 465, 697 P.2d at 148, and the legislature’s silence on the matter more clearly indicates to us its intention not to apply the enhanced sentences. Swafford, 112 N.M. at 16, 810 P.2d at 1236.

(32) Because these criminal cases involve the interpretation of two criminal statutes, the existence of any ambiguity as to their intended scope requires us to apply the rule of lenity. Ogden, 118 N.M. at 242, 880 P.2d at 853. Application of the rule of lenity requires that criminal statutes be interpreted in the defendant’s favor when “insurmountable ambiguity persists regarding the intended scope of [that] statute.” Id. This rule applies to “those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” State v. Edmondson, 112 N.M. 654, 658, 818 P.2d 855, 859 (Ct.App.), cert. quashed, 112 N.M. 641, 818 P.2d 419 (1991) (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980))). We hold that an insurmountable ambiguity exists as to the intended scope of these criminal statutes, and under the rule of lenity it should be resolved in the defendant’s favor. See Ogden, 118 N.M. at 242, 880 P.2d at 853.

(33) At common law, no number of convictions for any misdemeanor or misdemeanors could ever add up to or become a felony. Even though we agree that the legislature can make multiple convictions for misdemeanor DWI a felony, we do not agree that it intended to make this “new felony” a fourth degree felony for habitual offender sentencing purposes. We view this as a new or special felony. It changes the classification of a criminal act which is now and has been a misdemeanor into a felony for sentencing purposes only. We therefore conclude that it is a self-enhancing provision and strictly limited to four or more convictions for DWI. Section 66-8-102(G) contains its own particular enhancement provision by making a misdemeanor a felony because of multiple convictions subjecting the offender to a mandatory six-month “jail” sentence. The most plausible interpretation is that the legislature did not intend to punish fourth-time or more DWI offenders in the same manner as other fourth-degree felons. As we have held, a fourth DWI is not an element of the DWI felony crime, and therefore cannot be sentenced as a felony for all purposes, including habitual offender sentencing. The reference to a “jail” term in Section 66-8-102(G) as opposed to a “prison” term, when combined with the six (6) month mandatory sentence provided therein and the legislature’s silence about the applicability of that section in Section 31-18-17, is significant. When taken together, it is clear that the legislature did not intend to apply Section 31-18-17 to the new felony created by Section 66-8-102(G) for sentencing purposes.

(34) Here, Gonzales’s case clearly illustrates that the legislature did not intend such application. Gonzales was stopped by a police officer because he drove into an alley without signaling. He was then found by field sobriety observation to have been intoxicated within the statutory definition. Because, nearly twenty years ago, he had been convicted of burglary, and was twice guilty of escape from jail, and more recently was in possession of cocaine — none of his offenses against society being of a violent nature — he is mandated to a sentence of nine and one-half years in prison for driving while intoxicated. This is a sentence, not for his prior felonies for which he has paid his debt to society, but for a fourth-time misdemeanor that the legislature has said clearly to be subject only to an eighteen-month enhanced sentence. Without the legislature having expressly indicated to the contrary, we cannot believe it intended to apply its habitual-felon laws to habitual-DWI misdemeanors.

(35) In this matter, it is up to the legislature, if it so chooses, to clarify its intention, making convictions and sentences under Section 66-8-102(G) applicable to sentencing as a habitual felony offender under Section 31-18-17. As presently written, the legislative intent in these highly punitive statutes is ambiguous. We are not a legislative body but an interpretive one. Where, as here, the legislative intent with regard to the applicability of a criminal sentencing statute is unclear and ambiguous, it is for the legislature to clarify its intent and not the prerogative of this Court.

(36) In light of our conclusion that the rule of lenity applies to the construction of these statutes, it is therefore unnecessary to address the issue of cruel and unusual punishment raised by the defendants.

CONCLUSION

(37) In Defendant Anaya’s case, we affirm in part and reverse in part. We affirm Defendant Anaya’s sentence of a 6-month jail term, which resulted from the court’s suspension of 12 of the 18-month jail sentence for felony DWI, and we reverse the additional 8-year sentence as a habitual offender. In Defendant Gonzales’s case, we affirm in part and reverse in part. We affirm the court’s sentence of 1)6 years for felony DWI and the 364 days for driving on a revoked license, to be served concurrently with the DWI sentence, and we reverse Defendant Gonzales’s additional sentence of 8 years as an habitual offender. In the case of Defendant Nakai, the decision of the Court of Appeals, which affirmed his judgment and sentence, is reversed. In Nakai’s case, we affirm the court’s 18-month sentence for DWI and reverse the court’s additional 1-year sentence for being an habitual offender. In Defendant Martinez’s case, we affirm in part and reverse in part; we affirm Defendant Martinez’s 6-month jail term, which resulted from the court’s suspension of 12 months of an 18-month jail sentence, and we reverse the additional 4-year sentence for being adjudged an habitual offender. Defendants Kilgore and Irish each raised issues other than the sentencing issues discussed in this opinion; their cases are remanded to. the Court of Appeals for resolution of those issues.

(38) IT IS SO ORDERED.

RANSOM and McKINNON, JJ., concur. BACA C.J. (dissenting).

1 . History: NMSA 1941, § 68-2317, enacted by 1953 N.M. Laws, ch. 139, § 54; NMSA 1953, § 64-22-2; 1955 N.M. Laws, ch. 184, § 8; 1965 N.M. Laws, ch. 251, § 1; 1969 N.M. Laws, ch. 210, § 2; recompiled as NMSA 1953, § 64-8-102, by 1978 N.M. Laws, ch. 35, § 510; 1979 N.M. Laws, ch. 71, § 7; 1981 N.M! Laws, ch. 370, § 2; 1982 N.M. Laws, ch. 102, § 1; 1983 N.M. Laws, ch. 76, § 2; 1985 N.M. Laws, ch. 178, § 2; 1987 N.M. Laws, ch. 97, § 3; 1988 N.M. Laws, ch. 56, § 8; 1993 N.M. Laws, ch. 66, § 7.