dissenting.
My understanding of the facts set out by Justice McDevitt are that Mr. Bever has had two convictions for DUI, one on May 8,1985, and the other on July 10,1985. On March 29, 1989, he was charged with a third violation. Should a conviction result on this third charge, he becomes eligible for a felony sentence, provided that the third conviction is within five years of the first conviction. Accordingly, the prosecutor in charging him with the third violation, conviction of which according to the law, if rendered within five years of May 8, 1985, would result in a felony conviction and imposition of judgment of conviction with a sentence within the limits of the statute I.C. § 18-8005(3)(a), (b), (c), (d).
It has always been my general understanding of the law that a person cannot be adjudged guilty for a felony when the criminal offense of which he has been charged and convicted is a misdemeanor. With that in mind, it is understandable that the prosecutor believed the obligation of the law required that Mr. Bever be charged by information with a felony, simply because if convicted the law provides for a felony sentence. Moreover, it is not just a question of misdemeanor v. felony charge, but a question of jurisdiction. A magistrate is empowered to try misdemeanor charges, not felony charges. If a jury is not waived, a felony charge in district court is tried to twelve jurors, and a unanimous verdict is required, but with a misdemeanor charge in magistrate court the jurors are six in number.
At oral argument in this case, as was also true of the case which preceded it in the morning of session on the same day, State v. Craig, 117 Idaho 983, 793 P.2d 215 (1990), there was considerable colloquy between court and counsel as to whether a third DUI conviction or a third charged violation following two convictions would trigger a felony sentence. Obviously a third charged violation does not render a defendant, even with two prior DUI convictions, automatically into a person who has acquired three DUI convictions within a span of five years, which is what the legislature has ruled makes a person eligible for a felony sentence. There is no ambiguity in the statute, none whatsoever. What has created the ambiguity or confusion surfaced in the companion Craig case. As noted in my separate writing in Craig, the attorney general in one paragraph spoke lightly of the court’s rules, but in an ensuing paragraph purported to rely upon those rules:
The State’s opening brief scatterguns in four different and inconsistent directions. First the State’s brief sees no mandatory force in the rules promulgated by the Supreme Court:
Idaho Code § 18-8005 does not require that a defendant in a DUI case be informed of the consequences of future violations. Rather, this notification requirement is provided for by a *83court rule. There is nothing in the body of the criminal law that requires notification to a defendant of the potential penalty to be imposed upon conviction of a criminal offense. The fact that the state supreme court, by rule, has imposed such a duty upon the lower courts does not give rise to a due process violation if such rule-made procedure is not followed.
Appellant’s Brief, 9 (emphasis added).
Second, while conceding that the State had failed to provide the district court with documentation establishing compliance with M.C.R. 9.1, the State argues that under the rule, the court erred in not presuming compliance:
Admittedly, these documents were not provided to the district court before it issued its May 2, 1989, memorandum decision granting Craig’s motion to dismiss. But, based upon Rule 9.1, M.C.R., the district court should have presumed that Craig had been fully advised of his rights and penalties. Rule 9.1 provides that the court must, at or before sentencing, provide a written notice to the defendant as to the penalties that may be imposed for subsequent violations. The rule then sets forth the recommended form to be used. This form, which is to be used in the case of all DUI’s, whether it is the first, second, third, or subsequent offense, explains the enhanced penalties for both the second and the third violations within a five year period. There is a presumption of regularity in all that a court does.
Appellant’s Brief, 6 (emphasis added). State v. Craig, 117 Idaho at 985, 793 P.2d at 217.
The rules mentioned call for putting a defendant on notice that, when he obtains his first DUI conviction, that a second may be more severely punished than the first, and under consideration here, a third DUI conviction occurring within a span of five years following the first, entitles him to felony conviction and felony sentence. The rules probably were promulgated solely for the purpose of requiring the trial judge of the court below the district court to put such first and second offenders on notice as to what may happen when a third conviction takes place within five years. It would seem clear on reading the statutes that they give notice to all licensed and unlicensed men, women, and minor drivers in Idaho of exactly what is in store for them on a first conviction, or a second conviction, and on a third conviction (a fourth conviction presumably would be traced back to the second, and again the DUI conviction, if the three were within a five year span, would have acquired the necessary status to become eligible for yet another felony conviction). It has always been thought that all persons are presumed to know the law of the legislature, and in the area of highway traffic and rules of the road it is likely that the knowledge of laws such as I.C. § 18-8005 is well disseminated.
But whether or not that is so, where the legislature has enacted legislation as easily read and understood as those above mentioned, it may seem to many that the Court’s rules in this area are indeed redundant, causing more paper work in the magistrate’s courts, and as well a source of needless confusion in the courts, including this one. The legislature’s statutes in one view, at least, do not need embellishment or enshrinement in rules of the Court, which is to say that I tend to agree with the view of the rules taken by the deputy attorney general who briefed and argued the Craig case. However, a reading of all of the opinions in that case discloses a factual context differing from this.
Here the prosecutor could have taken Mr. Bever’s third DUI charge to trial in a magistrate court. The magistrate could not hand down a judgment imposing a felony sentence, assuming that Mr. Bever was convicted, but could only impose a sentence for a misdemeanor. The prosecutor could have then petitioned the district court to impose a felony sentence as is required by the statute, but the prosecutor would have come away empty-handed. Undoubtedly the district judge in this case, who was the same judge in Mr. Craig’s case, labored under the belief that his was the only trial court with authority to try a case, the *84outcome of which could result in a felony conviction and sentence. The district judge’s assessment of the situation was 100 percent correct.
Other than for explaining the rationale set out in my separate writing in Craig, trouble is experienced in trying to see any compatibility in the two respective majority opinions, Craig and Bever. When one pauses to remember that more than five years have elapsed since Mr. Bever’s first conviction (which was followed by a timely second conviction) it is now mathematically impossible to obtain a third conviction within the statutory five year span which commenced with the first conviction on May 8, 1985.