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March 2, 1990.


The opinion of the court was delivered by

This is an appeal by the State from an order of a judge pro tem in Johnson County District Court sentencing Daniel T. Harpool to a term of 180 days in the county jail and fining him the sum of $100 upon his third conviction of driving with a suspended license, a Class E felony. K.S.A. 1989 Supp. 8-262.

The facts are undisputed. Harpool was convicted a third time of driving with a suspended license contrary to K.S.A. 1989 Supp. 8-262, which provides in part:
"(a)(1) Any person who drives a motor vehicle on any highway of this state at a time when such person's privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction . . . and for third and subsequent convictions shall be guilty of a class E felony.
. . . .
"(3) [E]very person convicted under this section shall be sentenced to at least five days' imprisonment and fined at least $100 and upon a second or subsequent conviction shall not be eligible for parole until completion of five days' imprisonment."
  K.S.A. 21-4501 fixes the terms of imprisonment authorized for each class of felony. For Class E felonies, the statute reads:

[246 Kan. 227]


"(e) Class E, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be one year and the maximum of which shall be fixed by the court at not less than two years nor more than five years."
K.S.A. 21-4503 also authorizes the imposition of a fine of not more than $10,000 upon persons convicted of Class E felonies, which fine may be in addition to or instead of the imprisonment.

  Before turning to the issues, we consider the matter of jurisdiction. The State appealed this case to the Court of Appeals pursuant to K.S.A. 1989 Supp. 22-3601(a) and K.S.A. 22-3603 as an interlocutory appeal. This is not properly an interlocutory appeal but is clearly meant to be an appeal on a question reserved by the State, K.S.A. 22-3602(b)(3), as stated orally by the prosecutor in argument at the sentencing hearing. We transferred the case to this court pursuant to K.S.A. 20-3018(c), and we have jurisdiction to hear the case as a question reserved. See State v. Martin, 232 Kan. 778, 779, 658 P.2d 1024 (1983).

  We turn now to the primary issue: Did the trial court err in sentencing Harpool to serve 180 days in the county jail? We conclude that it did. The offense was a felony and the minimum term of confinement which could be imposed was one year. K.S.A. 21-4501(e). When a defendant is sentenced to confinement upon conviction of a felony, he or she may only be committed to the custody of the Secretary of Corrections. See K.S.A. 1989 Supp. 21-4603(2)(a); State v. Fowler, 238 Kan. 326, Syl. ¶ 1, 710 P.2d 1268 (1985). Under K.S.A. 1989 Supp. 21-4603(2)(a), a sentence of confinement in the county jail is possible only where the term of confinement is for less than one year.

  The sentencing judge pro tem acknowledged that K.S.A. 1989 Supp. 8-262(a)(1) states that a person with a third or subsequent conviction under the statute is guilty of a Class E felony. The court also observed that if sentence were imposed under K.S.A. 21-4501(e) the presumptive sentencing statute, K.S.A. 1989 Supp. 21-4606a, would apply. That statute fixes the presumptive sentence for a defendant who has never before been convicted of a felony at probation. That would presumably require probation on the entire sentence, in clear contradiction of the intent of 8-262(a)(3) to require incarceration of at least five days for second or subsequent convictions. The court found that 8-262, by requiring

[246 Kan. 228]

      the completion of five days' imprisonment, made the crime an unclassified felony under K.S.A. 21-4501(f). We do not agree.

  A court's paramount concern in statutory construction is to give effect to the intent of the legislature. State v. Keeley, 236 Kan. 555, 559, 694 P.2d 422 (1985). Legislative intent is to be determined from a general consideration of all provisions as a whole. We must attempt to reconcile different provisions of the statutes to make the whole consistent and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Where such reconciliation is not possible, a specific statute controls over a general statute, unless it appears the legislature intends otherwise. State v. Wilcox, 245 Kan. 76, 775 P.2d 1787 (1989).

  K.S.A. 21-4501(f) fixes the punishment for unclassified felonies. It reads:
"Unclassified felonies, which shall include all crimes declared to be felonies without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime. If no sentence is provided in the statute, the offender shall be sentenced as for a class E felony."
  Crimes are classified in Kansas as felonies, misdemeanors, and traffic infractions. A felony is defined by statute as a crime punishable by death or by imprisonment in a state penal institution. K.S.A. 21-3105. A traffic infraction is a violation of any of the statutory provisions listed in K.S.A. 1989 Supp. 8-2118(c) and is punishable only by the imposition of a fine. Driving while one's license is suspended, 8-262, is not one of those violations enumerated in 8-2118(c). All other offenses are misdemeanors.

  A first violation of 8-262 is a class B misdemeanor. It is clear that the legislature regarded subsequent violations of that statute as more serious offenses. It made a second conviction a Class A misdemeanor and third and subsequent violations Class E felonies. Reading the statutes together, it is clear the legislature intended by the language of 8-262(a)(3) to prohibit probation or parole of any person convicted of either a second, third, or subsequent violation of the section, before the person has served a minimum of five days' imprisonment. ...

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