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THE COURT OF APPEALS OF THE STATE OF ALASKA
NICHOLAS A. HOWELL, )
)
Appellant, ) Court of
Appeals No. A-3815
) Trial
Court No. 3AN-S89-902CR
v. )
) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
______________________________) [No. 1238 - July 24, 1992]
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, John D. Mason, Judge.
Appearances: Michael Jungreis, Anchorage,
for Appellant. John J. Novak, Assistant
District Attorney, Edward E. McNally,
District Attorney, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Nicholas A. Howell was convicted by a jury of driving
while his license was suspended (DWLS), in violation of
AS 28.15.291(a).1 District Court Judge John D. Mason sentenced
Howell to 30 days with 20 days suspended, and revoked his
driver's license for one year, the mandatory minimum period
specified at that time under AS 28.15.181(d) and AS 28.15.291(c).
We affirmed Howell's conviction. Howell v. State, Memorandum
Opinion and Judgment No. 2050 (Alaska App., August 1, 1990).
Shortly after this court issued its decision, Howell filed a
motion pursuant to Alaska R. Crim. P. 35(a) requesting the
district court to reduce his sentence by issuing him a limited
license. Howell relied on the newly amended language of AS
28.15.201, which became effective January 1, 1991.2
Judge Mason, relying on AS 01.10.100(a),3 concluded,
however, that the amended provision did not apply retroactively
to Howell's original sentence because Howell had been sentenced
prior to January 1, 1991. The judge further concluded that even
if the provision was enforceable as to sentences imposed prior to
January 1, it applied only to revocations for driving while
intoxicated (DWI) and refusal to submit to a breath test. On
appeal, Howell challenges this decision.
The rule is well settled that statutory amendments to
sentencing provisions generally do not apply retroactively to
offenses committed prior to the amendment's enactment. See,
e.g., P.H. v. State, 504 P.2d 837, 841 (Alaska 1972) (punishment
for an offense is governed by the law in effect at the time the
offense is committed); Galbraith v. State, 693 P.2d 880, 882
(Alaska App. 1985) (defendants are sentenced under law existing
at time of commission of offense absent an expression of intent
by legislature to make new law applicable to previously committed
crimes); AS 01.05.021.4
However, in moving for the issuance of a limited
license, Howell did not seek retroactive application of the
recent amendment to the sentencing scheme promulgated under AS
28.15.181(d) and AS 28.15.291(c). Instead, his request relied on
the court's authority to issue a limited license, as set forth
under AS 28.15.201(a). This statute affirmatively vests the
courts with ongoing power to issue a limited license, provided
that issuance of such license is not prohibited under a provision
of law in effect when the limited license is requested:
A court of competent jurisdiction, or a
hearing officer under AS 28.15.165, may, for
good cause, impose limitations upon the
driver's license of a person that will enable
the person to earn a livelihood without
excessive risk or danger to the public.
However, no limitation may be placed upon a
driver's license until after a review has
been made of the person's driving record and
other relevant information, nor may a
limitation be imposed when a statute
specifically prohibits the limitation of a
license for a violation of its provisions . .
.
(Emphasis added).
Under the language of the provision, the pertinent
inquiry is whether the driver's ability to obtain a limited
license is restricted under any provision of current law. The
state has cited to no such provision and our review of the
statutes reveals none. We therefore conclude that the trial
court erred in ruling that AS 01.10.100 precluded the issuance of
a limited license.5
In holding that the district court erred in declining
to consider issuing Howell a limited license, we do not suggest
that all drivers whose licenses have been revoked under former
mandatory minimum sentencing provisions may now seek to obtain a
limited license. Here, Howell was entitled to apply for a
limited license because he moved to reduce his sentence within
the time limitations set forth under Alaska R. Crim. P. 35(a).6
We express no view as to whether individuals may apply for
limited licenses under other circumstances.
The district court's order denying the limited license
is VACATED, and this case is REMANDED for reconsideration of
Howell's motion in light of the views expressed herein.
_______________________________
1. Howell's suspension resulted from his involvement in an
automobile accident occurring while Howell was uninsured.
2. Howell filed his request for a limited license on
January 3, 1991.
3. AS 01.10.100(a) reads:
Effect of repeals or amendments. (a) The
repeal or amendment of a law does not release
or extinguish any penalty, forfeiture, or
liability incurred or right accruing or
accrued under that law unless the repealing
or amending act so provides expressly. The
law shall be treated as remaining in force
for the purpose of sustaining any proper
action or prosecution for the enforcement of
the right, penalty, forfeiture, or liability.
(Emphasis added).
4. AS 01.05.021 reads:
Effect of repeal on prior offenses and
punishments. (a) No fine, forfeiture, or
penalty incurred under laws existing before
the time the Alaska Statutes take effect is
affected by repeal of the existing law, but
the recovery of the fines and forfeitures and
the enforcement of the penalties are effected
as if the law repealed had still remained in
effect.
(b) In the case of an offense committed
before the time the Alaska Statutes take
effect, the offender is punished under the
law in effect when the offense was committed.
(Emphasis added).
5. The trial court's determination that AS 28.15.201
applies only to revocations for DWI or refusal to submit to a
breath test is likewise erroneous. Although AS 28.15.201(d) and
(e) specifically authorize the issuance of limited licenses to
drivers whose licenses are revoked for DWI/refusal convictions,
nothing in AS 28.15.201(a) purports to restrict the issuance of
limited licenses to such drivers.
6. Criminal Rule 35 Reads:
Reduction, Correction or Suspension of
Sentence.
(a) Correction or Reduction of
Sentence. The court may correct an illegal
sentence at any time. The court may reduce a
sentence within 120 days of the day it is
imposed. If the defendant takes an appeal,
and the judgment is affirmed or the appeal is
dismissed, the court also may reduce a
sentence within 120 days of the day on which
jurisdiction over the case is returned to the
trial court under Appliance [sic, Appellate]
Rule 507(b), unless the defendant petitions
the United States Supreme Court for
certiorari, in which case the 120 days
commences on the day that the Supreme Court
denies relief.
(b) Modification or Reduction of
Sentence -- Changed Conditions or
Circumstances. The court may modify or
reduce a sentence at any time during a term
of imprisonment if it finds that conditions
or circumstances have changed since the
original sentencing hearing such that the
purposes of the original sentence are not
being fulfilled.
