Commonwealth v. Love
2011 Ky. LEXIS 35
| Ky. | 2011Background
- Love on state probation for a six-and-a-half-year sentence, to be served five-year probation, with probation to run concurrently with any federal sentence unless revoked.
- Love committed a federal felony during probation, and the federal court imposed a 30-month sentence in August 2006.
- In October 2006, a detainer was lodged with federal authorities based on the alleged probation violation; the state probation was not actually revoked until June 2008.
- The trial court revoked Love’s probation and ordered the Kentucky sentence to be served consecutively to the federal sentence; the Court of Appeals reversed, holding revocation was not timely under KRS 533.040(3).
- The Kentucky Supreme Court held that revocation must be completed within the ninety-day window after notice for consecutive sentencing to be permissible; since not timely revoked, the Kentucky sentence could not run consecutively to the federal sentence; the Court affirmed the Court of Appeals and remanded for further proceedings.
- The decision reaffirmed Gavel v. Commonwealth and clarified the interpretation of KRS 533.040(3) in cases where a probationer incurs a federal sentence during probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does KRS 533.040(3) require completion of revocation within 90 days? | Love argues that revocation need only be initiated within 90 days. | Commonwealth argues initiation within 90 days suffices for consecutive sentencing. | Yes; revocation must be completed within 90 days. |
| Is mere initiation of revocation sufficient to trigger consecutive sentencing? | Love contends initiation is enough to trigger sequential sentencing. | Commonwealth contends initiation within window supports consecutive sentencing. | No; completion within the 90-day window is required. |
| How does Gavel v. Commonwealth affect interpretation of KRS 533.040(3) in federal-involved revocations? | Love relies on Gavel to limit applicability of 90-day window to completion. | Commonwealth relies on Gavel as controlling precedent. | Gavel controls; revocation must occur within 90 days for consecutive sentencing to be permitted. |
| What is the proper interpretation of the 90-day window in light of Sutherland and related commentary? | Love emphasizes speedy revocation as a notice function. | Commonwealth emphasizes the statutory 90-day limit as a concrete deadline. | 90-day clock runs from notice; revocation must occur within window. |
| Does the decision undermine the General Assembly’s intent regarding probation revocation? | Dissent argues the majority creates an impossible framework. | Majority says legislature could change the law if deemed necessary. | Majority-approved interpretation; not overruled; not altering legislative intent. |
Key Cases Cited
- Gavel v. Commonwealth, 674 S.W.2d 953 (Ky. 1984) (probation revocation in federal-involved case governed by 533.040(3) rather than 533.060)
- Sutherland v. Commonwealth, 910 S.W.2d 235 (Ky. 1995) (discussed speedy revocation language and limits of 90-day window)
- Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996) (implied legislative intent through commentary and interpretation)
- Chestnut v. Commonwealth, 250 S.W.3d 655 (Ky. 2008) (statutory interpretation and avoiding adding language to statutes)
- Gavel, Brewer v. Commonwealth, 922 S.W.2d 380 (Ky. 1996) (consecutive sentencing when probation violation occurs while on probation; relates to interplay with 533.060)