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
. . . .
"(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'
K.S.A. 21-4501 fixes the terms of imprisonment authorized for
each class of felony. For Class E felonies, the statute reads:
"(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
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
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. ...