Commonwealth v. Griffin

COMMONWEALTH of

Appellant,

Larry GRIFFIN, Appellee. C.

No. 94-SC-476-DG.

Supreme Kentucky.

March General, Chandler, III, Attorney Ian

A.B. Gеneral, Attorney Sonego, G. Assistant Of- General, Frankfort, Attorney fice of the appellant. Baldani, Baldani, Rowland &

Russell J. Richardson, Lexington, appellee. 290 by Special The that

Opinion of the Court of held the trial Court Justice jurisdiction Ap- court to was without revoke Scott T. DICKENS. pellee’s probation after thе five appeals by decision The Commonwealth a 533.020(4) year period contained in KRS ex- Appeals granting Appellee the Lar- pired, and therefore reversed the trial court ry petition Griffin’s for relief under RCr C. 26, August with directions that the 1992 11.42. judgment grantеd set aside. This Court be discretionary review to consider whether the February 25,1985, Fayette County On the year probationary periods limit five time on Jury against Grand returned an indictment 533.020(4) set forth in KRS constitutes (two Appellee first-degree assault “jurisdictional” bаr to the trial court’s au- counts), operating a motor vehicle under the thority by a defen- which cannot be waived (third offense), oper- and influence alcohol below, dant. the reasons discussed we For oper- ating suspended a motor vehicle with a hold not and we reverse the that does (third offense). 27, ator’s license On March Appeals. decision of the Court of 1985, Appellee guilty first-degree pled to Appellee’s argument the that trial court endangerment operating wanton and a motor jurisdiction probation to his is lacked revoke under influence of alcohol. On vehicle the 533.020(4), principally on which based KRS 9,1985, May Appel- the court trial sentenced provides, part: in relevant probation рeriod years lee to a of five contin- period probation ... shall fixed The be conditions, gent pay- upon including several by any may and time court at ment of restitution to the victims. duly by extended or shortened entered 1989, In March filed the Commonwеalth period, with exten- court order. Such probation on Appellee’s motion to revoke (5) thereof, exceed sions shall not five grounds Appellee that had to failed make felony.... years upon conviction of payments. Aсcording restitution ‍‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌‌‌​​‌​‌​​​‌‍to the tran- Upon completion probationary peri- 1989, 17, script hearing of a on March coun- ... fi- od defendant shall be deemed Appellee sel for the court that he advised had nally provided discharged, no warrаnt is- spoken Appellee Appellee and “asked if him, against pending sued the court is One, you things, please. would do two not probation and ... been revoked. has not two, jail; put him in if back and ... he could added). (Emphasis argues Appelleе that paying recommence ... we [restitution] foregoing statutory provision renders years.” By probation could extend his purported pro- of his extension of the 22, 1989, grant- dated March court order invalid, deprived bation and the trial that peri- ed Appellee’s request and extended the jurisdiction court of his to revoke years od an additional five from 1992, years in after on some seven the date 17,1989. March originally which sentenced. The he was limit responds that the time Commonwealth 4, 1992, May аgain On the Commonwealth probationary periods by KRS on established Appellee’s probation to filed a motion revoke sen- is a waivable bar hearing pay for failure to A restitution. was tencing authority not court’s and a divesti- 21, August on In a cоnducted Final subject jurisdiction, fur- ture of matter and 26,1992, Judgment August the court entered ther, affirmatively time limit was that 7, Appellee’s May probation. On revoked Appellee is es- waived and he therefore 1993,Appellee pro pursuant se filed motiоn extending order topped attacking the to in argued RCr 11.42 which he that his jurisdiction Appellee’s to court lost revoke 1990, agree the trial court did May after the We that sentence, subject jurisdiction citing not lack matter to revoke original date of the KRS Subject juris Appellee’s probation. matter 533.020 and (1977). authority deter Ky., The court de- diction to court’s to 549 S.W.2d 515 refers (as 1993, 1, opposed “this July on mine “this kind of case” to Appellee’s nied motion and case”). O’Nan, Ky., he Duncan v. appеaled. definition, According interpreted preclude if it a know- to that served is year the trial did not matter voluntary court lose and waiver of the five jurisdiction at the termination of five exchange limitation defendant following Appellee’s sеntence. Rath- avoiding of his and revocation er, question the is whether the trial court lost Where, case, in imprisonment. as this the type jurisdiction, jurisdiction another of over period beyond extended the of is case, particular expirаtion at the of the five year period request five at the of year period. particular over a Jurisdiction the defendant in order to avoid a more se- authority case refers a court’s to deter- violating vere sanction for the terms (as specific opposed mine a case to the class statutory interpretation of probation, a which subject of cases of which the court has mat- would disallow such an extension would be jurisdiction). juris- may ter A court retain сontrary rather to the defendant’s interests particular by operation diction over a case of short, protective than of them. In an inter- statute, by operation rule or and also of its pretation that an would allow extension оf judgment, provided precluded own it ‍‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌‌‌​​‌​‌​​​‌‍is not probationary period knowingly and volun- by any doing statute so. tarily from requested is more in defendant harmony underlying purpose with the of the action, present In the the trial court interpretation statute than аn that would not (during original period Appellee’s pro the of allow it. bation) in period during effect extended the jurisdiction which retained over the case This conclusion does not conflict the with Appellee’s period proba whеn it ordered of principle subject jurisdiction that matter can- years. tion to question be extended five The not be created waiver or consent. As then becomes whether the trial court was above, jurisdiction noted at issue here is statute, i.e., precluded by 533.020(4), KRS jurisdiction particular over a case. As the statute, doing According from so. to the Appeals in former Court of stated Collins v. period thereof, “with extensions (1955): Duff, Ky., 283 S.W.2d 179 (5) years shall not exceed five upon convic propоsition A related is that where court felony_” tion of jurisdiction general has of the mat- In order to determine whether the statute ter, jurisdiction particular a lack of of the precludes juris- a trial retaining court from case, dependent upon as existence particular diction beyond over case facts, particular may be waived. instances, in all helpful is to consider Id. at 182. underlying purpose of the statute. This This conclusion also does not conflict with purpose discussed that in Green Green, supra, or both of which Ky., 400 S.W.2d 206 Appellee. Curtsinger, are relied In There, purpose the Court observed that the unilaterally attempted the trial court to ex- year probationary of the five pro- limit is to beyond period tеnd the being tect the convicted defendant from sub- years. suggestion opinion There is no in that jected probationary to a status indefinite voluntarily sought that the defendant duration, analogizing uncertainty of the Green, In extension. the trial court had dеfendant’s status to “the sword of Damo- unilaterally delayed ruling on a motion for limiting language cles.” But for the of KRS new trial for almost five after the 533.020(4), theoretically a trial court could verdict was rendered. The former Court of probation, extend thе of a defendant’s delay Appeals held that such a was unreason- otherwise, “off the record” or its discre- at able and therefore ordered that the defen- tion. As the Court of in this matter discharged custody. dant from noted, restricting the wisdom the timе suggestion at no 209. There is period in can which the court hold the “sword voluntarily sought that the defendant ‍‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌‌‌​​‌​‌​​​‌‍Green probationer of Damocles” over the head of a delay. argued. need not be (to However, purpose Moving estop оf the statute next to the issue of defendant) protect pel, agree the convicted is not we with the Commonwealth that (1983) (Winter Ky., precluded attacking from the trial 657 S.W.2d Griffin is J., jurisdiction sheimer, result, dissenting). to revoke his court’s As there jurisdiction Even if the trial court lacked compliance should be strict with the statuto particular case because of KRS ry provisions. 533.020(4), estopped challeng- Griffin is scheme, Kentucky’s statutory Under jurisdiction. of that the court’s exercise felony clearly term of for a is yеar voluntarily requested the five Griffin probation], [of limited. “Such probationary period, and extension of his he (5) thereof, extensions shall not exceed five accepted then the benefits of the court’s 533.020(4) years_” (emphasis KRS add (ie., granting request he avoided in- ed). Although grants a court KRS carceration). Ap- As the former Court of power period if the limited to extend the “[wjhere noted, jurisdic- peals the court has years, initial term is less than five under no matter, tion of the statements made shоuld an extension continue circumstances jurisdic- purpose giving for the of the court five-year past unambiguous maximum on, tion, they after have been acted cannot 533.020(4). pro contained in KRS Once party mak- withdrawn or contradicted batiоnary expires, has no a trial court taking away ing purpose them for the such matter; the defendant discretion in the Duncan, jurisdiction.” at 631 finally discharged.” KRS “shall be deemed (citation omitted). added). (emphasis Damocles, Appellee Unlike wаs not forced pur- my opinion, In it matters not that a tyrant king a sword to sit beneath through an act of the ported extension comes Rather, suspended by single Appel- hair. defendant, judge, agreement or bargain lee struck with the Commonwealth indeed, parties; creating proba- the statute court, knowingly voluntarily and the trial and Any exten- tion makes no such distinction. placing himself under the “sword” of an ex- leg- five-year limit contravenes past sion exchange avoiding tended in the policy probation, on contained islative violating more the terms severe sanction Commentary to KRS 533.040: Appellee If of his sentence. is to be work, generally it any mythology, If is to will compared figure to of Greek Icarus, who, period of relatively sо within a short perhaps escap- do should be after time, long of 5 imprisonment wings before the maximum crafted of feathers, sun, permitted purpose No for felonies.... waxed flew too close to the his melted, by permitting wings would seem to be served and he fell into the sea. pile periods of courts to on consecutive reasons, foregoing the decision of For the thereby and the term to extend is reversed. the Court 15, years_ Working Pa- or even on Re- pers the National Commission STEPHENS, C.J., COOPER, аnd Criminal Laws 1311 WINTERSHEIMER, JJ., form of and GRAVES concur. proba- any I fail to see distinction between a tionary for more than period that continues STUMBO, J., separate with a dissents sentencing and years due to consecutive LAMBERT, J., joins. opinion in which past probationary period that stretches Johnstone, J., sitting. not waiver, estoppel, agreement or due to effect, parties. Both have same BY DISSENTING OPINION extending probation indefinite- STUMBO JUSTICE statutory ly, unambiguous limit. despite an Respectfully, I dissent. While this case majority in instant ease estoppel, Although the questions raises novel of waiver and heavily protecting aim of reasoning of relies on the noble I believe that the fundamental interests, ignores prac- In the defendant’s remains sound. of the situation that arises power grant probation is not inher- tical realities “[t]he terms of his by the when a defendant violates the ent in the courts but is conferred forward, when- point From this Haymon v. legislature.” ever a defendant commits a viola-

tion, the Commonwealth will “offеr” ‍‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌‌‌​​‌​‌​​​‌‍to either probation, perhaps

extend his with additional

terms, prison. or him to send No defendant mind, right

in his when faced with this Hob- choice, imprisonment.

son’s would choose

By allowing a defendant to limit waive the 533.020,

contained KRS we have effective-

ly five-year written the limit out of the stat-

ute. concerns,

Citing jurisdic these and other

tions with similar schemes have probation beyond

invalidated extensions of

statutorily prescribed time limit even when

granted with the defendant’s consent or See, request. ‍‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌‌‌​​‌​‌​​​‌‍e.g., defendant’s United (9th Rodriguez,

States v. 682 F.2d 827 Cir. State, (Fla.

1982); Carter v. 516 So.2d 331 State,

Dist.Ct.App.1987); Hoage v. 479 (Ind.Ct.App.1985);

N.E.2d 1362 v. State 441,

Grimsley, Kan.App.2d 808 P.2d 1387

(1991); State, 540, Kupfer v. 287 Md. (1980); Duncan, Or.App.

A.2d 907 State v.

101, 514 P.2d 1367 Unlike those deci

sions, majority the result reached

today much invites of the mischief that the

statutory designed prevent. limit is If a five-year

defendant violates the terms of a

probationary then, period, pursuant to the scheme, proper remedy is in

carceration, not an extension. See KRS

533.020(3). judgment I would affirm the Appeals.

the Court of

LAMBERT, J., joins. BOWLING, Appellant,

Ronnie L.

COMMONWEALTH of

Appellee.

No. 92-SC-1035-MR.

Supreme Kentucky. Court of 24,

April 1997.

Rehearing Denied June

Case Details

Case Name: Commonwealth v. Griffin

Court Name: Kentucky Supreme Court

Date Published: Mar 27, 1997

Citation: 942 S.W.2d 289

Docket Number: 94-SC-476-DG

Court Abbreviation: Ky.