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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JACK CURTIS, )
) Court of Appeals No. A-4035
Appellant, ) Trial Court No. 3AN-90-3132
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1222 - May 15, 1992]
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, Martha Beckwith,
Judge.
Appearances: David R. Weber, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Susan
Wibker, Assistant District Attorney, Edward
E. McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
On August 9, 1990, Jack Curtis was sentenced for
driving while intoxicated (DWI), AS 28.35.030(a). Believing that
Curtis was a first DWI offender, the district court sentenced him
to 60 days' imprisonment with 57 days suspended, plus a $250
fine. The 3 days to serve and the $250 fine were the specified
minimum penalties for a first offender. AS 28.35.030(c).
Two months later, the State moved to modify Curtis's
sentence after discovering that Curtis had a prior DWI conviction
from 1987. The district court granted the motion and modified
Curtis's sentence to 60 days' imprisonment with 40 days
suspended, plus a $500 fine.
Curtis does not challenge the district court's
authority to modify his sentence after learning that it was less
than the statutory minimum. Curtis points out, however, that
under Love v. State, 799 P.2d 1343, 1346 (Alaska App. 1990), and
Dunham v. Juneau, 790 P.2d 239, 241 (Alaska App. 1990), the
district court was authorized to modify the sentence only to the
extent necessary to correct the illegality. Curtis contends
that, although the minimum fine is $500 for a second offense, the
district court is empowered to suspend all or part of this
minimum fine. Therefore, Curtis argues, to correct the portion
of the original judgement that sentenced him to pay a fine of
$250, the district court should have sentenced Curtis to a $500
fine with $250 suspended. We agree.
The 1990 version of AS 28.35.030(c) (the version that
governs the sentencing in Curtis's case) provided that, when a
person was convicted of a second DWI offense within 10 years, the
sentencing court was required to "impose a minimum sentence of
imprisonment of not less than 20 consecutive days and a fine of
not less than $500". The statute also provided that "execution
of sentence [could] not be suspended nor ... probation be granted
except on condition that the minimum imprisonment provided in
this section [was] served." (emphasis added)
Curtis points out that, under AS 28.35.030(c), the only
limitation on the district court's authority to suspend a DWI
offender's sentence was the condition that the offender serve the
mandated 20 days' imprisonment. The statute imposed no condition
on the court's authority to suspend the mandated $500 fine.
Thus, Curtis argues, the district court retained the authority to
suspend all or part of the minimum fine, and therefore the least
amount of judicial intervention necessary to correct the
illegality of his original fine - $250 to pay - was to change it
to a fine of $500 with $250 suspended.
The State counters that this Court has already held, in
Dunham v. Juneau, that no portion of the mandated minimum fine
can be suspended. 790 P.2d at 240-41. The Dunham decision does
in fact say this, but we are convinced that this conclusion was
hasty. The parties in Dunham did not distinguish between the
mandated imprisonment and the mandated fine; the defendant simply
argued that his sentence could not be altered.
While courts do not have the inherent power to suspend
execution of a sentence, Pete v. State, 379 P.2d 625, 626 (Alaska
1963), the Alaska legislature has given this power to the trial
courts. AS 12.55.080; AS 12.55.015(a)(7). When a statute of
general application grants sentencing courts the power to suspend
all or part of a sentence, that statute will govern unless the
legislature specifically provides otherwise. Speas v. State,
511 P.2d 130 (Alaska 1973). Curtis is correct that AS
28.35.030(c) limits a sentencing court's authority to suspend the
term of imprisonment but does not limit the court's authority to
suspend the fine. Thus, because AS 28.35.030(c) does not
restrict a sentencing court from suspending all or part of the
mandatory minimum fine, the court retains this power.
The district court originally ordered Curtis to pay a
$250 fine. The mandatory minimum fine for a second DWI offender
was $500. To correct the illegality, the district court needed
to increase Curtis's fine to $500 with $250 suspended.
This case is therefore REMANDED to the district court
with directions to amend the judgement in this manner.
