State v. Spencer , 68 Haw. 622 ( 1986 )

725 P.2d 799 (1986)

STATE of Hawaii, Plaintiff-Appellee,
v.
David Kapioho SPENCER, Jr., Defendant-Appellant.

No. 11181.

Supreme Court of Hawaii.

September 30, 1986.

Susan Barr, (Richard E. Icenogle, Jr., with her on brief), Deputy Public Defenders, Honolulu, for defendant-appellant.

Frederick Giannini, Deputy Pros. Atty., Counsel of Record, Captain Cook, for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

LUM, Chief Justice.

This appeal concerns the issue of whether a felon who violates Hawaii Revised Statutes (HRS) § 134-7(b) (Supp.1984) commits a class B or a class C felony for the purpose of sentencing. Defendant-Appellant David Kapioho Spencer, Jr., a convicted felon, pled guilty to possession of a firearm in violation of HRS § 134-7(b). The trial court sentenced Spencer to a 10-year prison term, the maximum term for a class B felony.

HRS § 134-7(f) (Supp.1984) states that a felon who violates § 134-7(b) is guilty of a class B felony. The maximum prison term for a class B felony is 10 years. HRS § 706-660(1) (Supp.1984). However, HRS § 706-610(2) (1976) of the Hawaii Penal Code provides that any felony defined by statute outside the Penal Code is a class C felony for the purpose of sentencing. The maximum prison term for a class C felony is 5 years. HRS § 706-660(2) (Supp.1984).

Asserting that HRS § 134-7(f) is invalid, Spencer contends the trial court erred in imposing the term applicable to a class B felony. He argues that the court should have imposed the 5-year maximum term for a class C felony pursuant to HRS § 706-610(2).

In 1972, the legislature enacted HRS § 706-610 as part of the original Hawaii Penal Code. Act 9, § 1, 1972 Haw.Sess. Laws 32, 73. Section 706-610(2) reads: "Notwithstanding any other provision of law, a felony defined by any statute of this State other than this Code shall constitute for the purpose of sentence a class C felony." Prior to its amendment in 1981, HRS § 134-7(c) (1976) read: "Any person violating this section [134-7] shall be guilty of a class C felony." In 1981, the legislature amended the section to make violation of § 134-7(b) by a felon a class B felony.^[1] Act 239, § 5, 1981 Haw.Sess. Laws 462, 466. Neither the House nor the Senate Journal concerning this legislation reveals any discussion concerning the conflict with § 706-610(2).

Generally, where a specific and a general statute overlap in their application, effect will be given to both if possible, since repeal by implication is disfavored. State v. Kuuku, 61 Haw. 79, 82, 595 P.2d 291, 294 (1979). However, where there is a "plainly irreconcilable" conflict between a specific statute and a general statute concerning the same subject matter, the specific statute will be favored. See State v. Pacariem, 67 Haw. 46, ___, 677 P.2d 463, 464 (1984).

The statutory provisions in the present case are plainly irreconcilable since it is impossible for a § 134-7(b) violation by a felon to be both a class B and a class C felony. Section 706-610(2) is general. It concerns all felonies defined by statute outside the Penal Code. Section 134-7(f) is specific. It classifies violations of subsection (b) as class B or C depending upon whether or not the offender is a felon. Therefore, we hold that the specific provision, § 134-7(f), supersedes the general provision of § 706-610(2).

This conclusion is further supported by the presumptive validity of legislative enactments. Levy v. Kimball, 51 Haw. 540, 545, 465 P.2d 580, 583 (1970). Statutes should be interpreted to give them effect. Id. Were we to apply § 706-610(2), the 1981 amendment designating possession of a firearm by a felon as a class B felony would be nullified.

The lower court properly imposed the sentence applicable to a class B felony.

Affirmed.

NOTES

[1] HRS § 134-7(f) (Supp.1984) reads in part: "Any person violating subsection (a) or (b) shall be guilty of a class C felony, provided that any felon violating subsection (b) shall be guilty of a class B felony."