dissenting.
The four Justices who comprise the Court’s majority have delivered three separate opinions which differ substantially from one another. Special Justice Bratt holds that this Court’s decision in Commonwealth v. Davis, Ky., 728 S.W.2d 532 (1987), was erroneous and should be overruled in favor of a Court of Appeals’ opinion rendered several years earlier in Commonwealth v. McClure, Ky.App., 593 S.W.2d 92 (1979). Davis held unmistakably that the maximum possible term of incarceration is controlling of whether an undes-ignated offense is a felony or a misdemean- or, while McClure held just the opposite; *734that when a statute does not clearly indicate the type of offense, the Court will treat it as a misdemeanor. Justice Reynolds has joined this view. In an effort to salvage Commonwealth v. Davis, and despite its close factual similarity to the instant case, Justice Wintersheimer has written that Davis does not apply here. Justice Combs presents a third view. He relies on the verdict of the jury as indicative of its intention to convict appellee of a misdemeanor rather than a felony. Under this view, the intent of the Legislature would be irrelevant. To determine whether a crime is a felony or a misdemeanor when the offense is undesignated, one should merely examine the verdict. To say the least, this is an imaginative approach.
In SCR 1.030(8)(a) and SCR 1.040(5), this Court has commanded all other courts of Kentucky to follow its precedent. When a collegial court enacts such a rule, it impliedly undertakes to render opinions which are reasonably capable of understanding and application by judges and lawyers throughout the jurisdiction. When a four-judge majority expresses itself by means of three irreconcilable opinions, it renders meaningless its rules which require lower courts to follow its precedent. The next time this issue arises, I pity the trial court and the lawyers as they try to apply the majority decision.
Turning to the merits of the case at bar, this Court granted discretionary review to determine whether a non-penal code criminal statute which provides for punishment of a fine and/or incarceration in the penitentiary for a term of not less than six months nor more than two years was intended by the General Assembly to be a felony or a misdemeanor. Determination of the foregoing is decisive to the outcome of this case as conviction of a misdemeanor was time-barred when the prosecution was commenced. KRS 500.050(2).
Appellee, a former member of the Kentucky House of Representatives, was indicted in the Franklin Circuit Court and convicted upon a jury verdict of violating the Legislative Ethics Act, KRS 6.750, et seq. The provision of the Act which appel-lee violated was KRS 6.775(7) and the penalty statute which prevailed at that time was KRS 6.990(11)1 which stated as follows:
“Any person who violates KRS 6.775(6), (7) or (8); KRS 6.795(3) or (6); or KRS 6.800(1) shall be confined in the penitentiary for not less than six (6) months nor more than two (2) years, or fined not less than two-hundred dollars ($200) nor more than one-thousand dollars ($1,000), or both, and in addition shall be judged to have forfeited any constitutional or statutory office or employment which he may hold.
After return of the guilty verdict, appel-lee moved the court for judgment notwithstanding the verdict. He contended that the offense was a misdemeanor and his conviction was therefore time-barred. Overruling the motion, the trial court held that offenses defined outside the penal code were governed by KRS 431.060(1) which provides that:
“Offenses punishable by death or confinement in the penitentiary, whether or not a fine or other penalty may also be assessed, are felonies.”
The trial court rejected appellee’s argument that the classification of the offense should be determined by KRS 532.020 and KRS 500.080 and said:
“The critical distinction both under that statute [KRS 431.060(1) ] and under case law is the place of confinement, not the length.”
The Court of Appeals reversed. Relying on KRS 532.020, it held that for an offense outside the penal code to be classified as a felony, a term of imprisonment in the penitentiary of at least one year must be contained in the statute.
The parties have debated at length the effect of various definition and construction statutes which may assist in our determination. The Commonwealth points to KRS 500.080(5) which defines a felony as *735“an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Corrections Cabinet may be imposed.” It also looks to KRS 500.-080(10) for the definition of a misdemeanor and its requirement that the sentence to a term of imprisonment not exceed twelve months. Of course, the Commonwealth relies heavily on KRS 431.060, quoted herein-above, for the proposition that offenses punishable by confinement in the penitentiary are felonies.
For his contention that the instant offense is not a felony, appellee relies on KRS 532.020 which provides that non-penal code offenses with terms of imprisonment in the state penitentiary or reformatory for at least one but not more than five years shall be deemed to be Class D felonies. He recognizes, however, that under the definitions contained in KRS 532.020(2) and (3), the instant offense likewise fails to constitute a misdemeanor. As such, appellee depends on the reasoning of Commonwealth v. McClure, Ky.App., 593 S.W.2d 92 (1979), a view embraced by the Court of Appeals, that when a statute fails to clearly indicate the type of offense, it shall be treated as a misdemeanor. He dismisses any effect of KRS 431.060(1) as being a pre-penal code definition which was superseded or modified by KRS 532.020.
The first step in statutory construction is to examine the language used. The significant features of the instant statute are that it designates the place of confinement as the penitentiary; the term of confinement as not less than six months nor more than two years; and fails to say whether the punishment is for a felony or a misdemean- or.
Traditionally, and as a matter of general law, one principal difference between a felony and a misdemeanor has been whether the offense is punishable by confinement in the county jail or in the state penitentiary. In Copeland v. Commonwealth, 214 Ky. 209, 282 S.W. 1077 (1926), the Court expressed some uncertainty as to whether there was a valid distinction between the terms “prison” and “imprisonment,” but left no doubt that “state penitentiary” was for punishment of more serious crimes and the “county jail” was for punishment of lesser offenses. KRS 431.060(1) recognizes this distinction by use of the word “penitentiary” for the place of confinement of those convicted of felonies. The statute here uses the term “penitentiary” indicating that the General Assembly regarded it as a more serious offense.
Another traditional distinction between felonies and misdemeanors has been the duration of confinement. It is undisputed that when the minimum duration is one year, the offense is a felony, and when the maximum duration is twelve months, the offense is a misdemeanor. The difficulty arises when the minimum term is less than one year and the maximum term is more than twelve months. Thus, for purposes of determining whether an offense is a felony or a misdemeanor, we must decide whether the minimum or maximum term of incarceration is more persuasive.
The Court of Appeals addressed this question and the significance of the place of confinement in Commonwealth v. McClure, supra, wherein the statute provided for punishment of a fine and “a prison sentence of not more than five (5) years, or by both fine and imprisonment in the discretion of the jury.” 593 S.W.2d at 94. The Commonwealth had sought a construction which focused on the maximum duration and “prison” as the place of confinement. As to confinement in “prison,” the court relied on Copeland v. Commonwealth, supra, for the proposition that “prison” was not of sufficient particularity to indicate whether the offense was a felony or misdemeanor. As to the five-year maximum duration, the McClure decision merely held that the statute was insufficiently definite to delineate a felony. It declared that:
“[W]hen the statute does not clearly indicate the type of offense, the courts regard the offense as a misdemeanor.” Commonwealth v. McClure, at 97.
It would be possible to distinguish McClure from the case at bar by the statute’s use of the term “prison” rather than “penitentiary,” but it cannot be ignored that, with *736respect to the duration of incarceration, the statutes are very similar.
This Court departed from the view expressed in Commonwealth v. McClure, albeit without citation, with its decision in Commonwealth v. Davis, Ky., 728 S.W.2d 532 (1987). In Davis, the Court held that an Ohio statute which provided for punishment of six months to five years satisfied the Kentucky felony requirement for purposes of persistent felony offender enhancement. While the Ohio statute was denominated a felony in that jurisdiction, and, in part, the controversy involved construction of KRS 532.080(3)(a), the central holding in Davis cannot be distinguished from this case. We said:
“The fact that the Ohio felony provisions permit punishment for less than one year is not as significant as the fact that the statute authorizes punishment for more than one year. The key is that the maximum sentence imposed which can be served in a foreign jurisdiction controls and permits the crime to be considered as a felony for PFO purposes in Kentucky. The possibility of an indeterminate minimum of less than one year is not controlling.” Davis at 532-533.
As the foregoing quotation demonstrates, this Court held that the greatest possible punishment allowed by the statute determined whether the crime was a felony or a misdemeanor. While there are differences in language and purpose between the Ohio statute in Davis and the statute in the instant case, it is impossible to meaningfully distinguish between them on the issue presented here.
As I believe that use of the term “penitentiary” in the statute under review is indicative of legislative intent to punish a more serious offense, and as this Court’s most recent decision on point states that the maximum possible term is controlling, this dissenting opinion could be concluded without further elaboration. Nevertheless, I deem it appropriate to comment on the view expressed in the opinion of Special Justice Bratt that the statute here does not inform the reader that a violation constitutes a felony and the corollary argument that in the face of uncertainty, the “rule of lenity” should be applied.
I consider it insignificant that the statute under review was neither specifically delineated as a felony, nor fell within the enunciated parameters of punishment for either a felony or a misdemeanor offense. Here, there was no uncertainty about the range of punishment which could be imposed for a violation nor the place of confinement upon conviction. As there existed ample warning to one contemplating a violation, the statute was without any “grievous ambiguity or uncertainty in the language and structure of the Act,” and
“A straightforward reading of [it] does not produce a result so “absurd or glaringly unjust” as to raise a ‘reasonable doubt’ about [legislative] intent.” Chapman v. United States, [— U.S. -, 111 S.Ct. 1919], 114 L.Ed.2d 524 (1991). (Citations omitted.)
I have not ignored the long observed view that
“doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishment totally disproportionate to the gravity of the offense. Commonwealth v. Colonial Stores, Inc., Ky., 350 S.W.2d 465, 467 (1961).
However, as this statute was neither of doubtful construction, nor felony punishment extremely harsh or disproportionate to the gravity of the offense, the rule of lenity is not applicable.
For the foregoing reasons, I dissent from the opinions and would reinstate the judgment of the trial court.
LEIBSON and SPAIN, JJ., join this dissenting opinion.. The penalty provision was amended effective July 14, 1992, and is now codified in KRS 6.990(11). Under the new statute the offense is designated a Class D Felony.