oN PETITION TO TRANSFER
SULLIVAN, Justice,dissenting.
I believe the majority misreads legislative intent when it holds that a conviction for operating while intoxicated as a Class D felony cannot be enhanced under the habitual substance offender statute. Indeed, we held that such "sentences are permitted under the pertinent statutes" in Smith v. State (1989), Ind., 547 N.E.2d 845, 846.
I find the situation that gave rise to our opinion in Stanek v. State (1992), Ind., 603 N.E.2d 152, to be entirely different. There, the trial court sought to impose a habitual offender enhancement under the general habitual offender statute, Indiana Code § 35-50-2-8, where the legislature had enacted a separate habitual offender statute for the special sentencing scheme governing offenses relating to violations of traffic laws. We held, quite logically, that the legislature meant for the more specific Habitual Violators of Traffic Laws enhancement, not the general habitual offender enhancement, to apply to a violation of traffic laws. In the case before us today, the trial court imposed a more specific Habitual Substance Offender enhancement, not the general habitual offender enhancement, to a substance offense. This does not appear to violate Stanek in any way.
I would affirm the trial court for the reasons set forth by Judge Najam for the Court of Appeals in this case, Devore v. State (1995), Ind.App., 650 N.E.2d 37, 8-12.