*1 Eugene DEVORE, Appellant, Garnett Kentucky,
COMMONWEALTH of Advocate, Farley, Public Emory Jack Advocate, McDaniel, Asst. Public Rodney Supreme Court of Frankfort, appellant. Beshear, Gen., R. Penny L. Atty. Steven Warren, Gen., Frankfort, Atty. Asst. appellee.
STEPHENS, Justice. Chief The issue address on this we length set out in KRS parole (or other forms when he early probation) release or aegis mits felonies under at from least indicted, tried and prior felony, one degree count one felony; “C” one count of burglary, class theft, felony; a class “D” three receiving stolen knowingly prop- counts of felony, a class “D” and one count erty; “D” trespass, criminal class He to a total of 35 was sentenced years imprisonment. sentencing phase
At the bifurcated trial, of five counts appellant was convicted offender, fif- His enhanced to sentence was each count. years imprisonment teen that each sentence The trial court ordered consecutively, ad- be served sentences were to judged year with a five term served separate charge Therefore, ap- property. eighty years. time is total pellant’s right. He a matter of appeals as grounds six for reversal carefully exam- We have of his conviction. only and find that ined all of them in this opinion. merits discussion said, to, we have That as one relates KRS 532.- length of his sentence. as follows: 110(l)(c) states *2 multiple imprison- "When sentences of That statute was enacted imposed ment are on a defendant for Assembly in 1974. The issue in the present crime, more than one including a brought case is into focus the fact that crime previous for which a sentence of the General also enacted probation or discharge 532.110(3), which is as KRS follows: revoked, multiple been such sentences impris- When a defendant is sentenced to concurrently shall run or consecutively as onment for a crime committed while on the court shall determine at the time of parole in this state [which was] sentence, except that: such imprisonment any peri- term of (c) reimprisonment od of that the board of minate terms shall not exceed in maxi- parole may require the defendant mum extended term upon serve the revocation of his parole which would be authorized 532.- by KRS shall run concurrently, unless the court 080 for the highest class crime for (Em- orders them to run consecutively. is imposed. sentences added.) phasis The effect of this statute is that when the precise Further focus on issue on the multiple sentences are on a defend- brought about the General crime, ant for more than one that such enactment, Assembly’s 533.- KRS permitted sentences while to run concur- 060(2). rently exceed, or consecutively, may not a of a person When convicted total time of imprisonment, the maximum felony and committed to a correctional time authorized statute ... and released on ... facility plea guilty and is convicted or enters a case, tences imposed. are In the to a committed appellant’s “highest class” of crime was ... such shall not be a degree burglary, or conditional probation, The maximum of sentence therefore discharge period of confinement 532.080(6)(b). 20 for that shall not run plain that terms of (Emphasis add- the statute and the mandate of Tabor v. ed.) Commonwealth, Ky., (1981), 133 question arises as to require us to remand the case to the trial imprisonment limit or on total cap placed court a and direct that maximum sentence is modified time years of 20 agree. entered. We do not that, a 533.060(2) so when Tabor, felon a while on commits robbery in the second and of the maximum the sentence exceed may persistent felon, He received committed. highest felony time for the twenty year enhanced sentence. The trial 532.110(3) and court ordered that the twenty year impact persistent contemporaneously on the enacted felony offender conviction and the other enact- prior, entirely sep- with a with KRS later, is to years arate sentence on a of- ed fender, those felons degree, conviction. We authorize directed, viewed the conviction and in the who commit felonies results, commits event of another trial with similar defendant board the two sentences be served concur- crime while on time may We the terms of direct that additional rently. literally applied event, time shall 532.110(l)(c), served, in such recognizing legisla- unless the put cap years concurrently, tive intent on the total crime) shall (in of the second imprisonment given in cases of court the case conviction. order the sentences Justice, dissenting. This of the statute modifies section limit, or on the sentence maxi- cap, placed majority opinion disagree (l)(c) 532.- mum set out in Section First, I dissent reasons. this case for two 533.060(2) over- that KRS from the view 533.060(2), the respect
With to KRS mandates that 532.110(l)(c), and rides KRS addresses the various offenses the sentences for *3 subse of the felons who commit problem on mitted the felonies while on when such a quent Second, the con- my view occurs, (according things circumstance theft and for both viction of the defendant statute) (1) to the occur: The defendant not which was property, (for subsequent felony) shall not the was dou- majority opinion, discussed or probation for jeopardy. ble discharge, length and of count indictment In a the persons (again, the sentence for subse offenses, separate has been convicted run con quent felony conviction) shall not enhanced as a with each sentence By with ob currently offender, and each sentence inference, vious the 532.110(l)(c) provides consecutively. KRS (for prison said that the sentence the circumstances: that in such conviction) run consecutive shall be indetermi- of consecutive The General has rather clear “The ly. stiff not exceed in maximum ly provide penal shown its intention to nate terms shall paroled ties for convicted and felons who extended term which the commit subsequent parole. felonies while for 532.080 would be authorized is, course, very special privilege Parole highest the given prisoners who have evidenced to is of the sentences board, the their conduct and their is a the most serious offense In this case verbiage, their to have their sen reliability “longest extended felony, and comply tence served out of and to after en- be authorized” term which would whatever condition the board at twenty (20) years. is as a PFO hancement tach. The felt Assembly obviously eighty sentenced to Appellant trust parolees who violate this the commission of a shall be forced provisions majority holds that penalties. being eligible to suffer Viz—not are overridden etc., 532.110(l)(e) having not their KRS Chapter is part concurrently. sentences served Discharge.” provi that the maximum “Probation Conditional argue To sentence 533.060 provisions applicable sion of the fact that sentences enacted, this stat are directed to subsequently purposeful singling ute is not correct. The shall not simply new offenses felons for the for which past offenses us to interpretation set out in KRS mandates reasonable A sentence,” (KRS provision rule that other phrase “with not other sentence” 533.060(2)) “any is that within the terms those individuals who fall of the portion the unserved means probation for which for the should be revoked. judgment We therefore affirm trial court. “with phrase has taken majority beyond it and extended sentence” any other GANT, and WINTER- STEPHENSON where statutory framework context and JJ., SHEIMER, concur. were a reasonable If there it is found. ambiguity contrary, such to the AKER, JJ., argument dissent. in sentencing statute should be resolved in more than an effort to avoid technicalities favor of the defendant. that otherwise exist in use of the word “receiving” explanation. without KRS 532.110 was amended and reenacted permit carving It was not intended to mul- retaining the same single tiple offenses out of criminal act. quiring concurrent as to multi- occurs, a theft there is every case where ple previ- convictions for new offenses as retaining. I find the con- some element ously existed. It is difficult to maintain legislature clusion that intended the that the says statute does not mean what it thief for both offenses to prosecuted to be in these It says aggre- circumstances. “the carving I believe that unreasonable. gate of consecutive indeterminate terms offenses is not offense as described into two shall not exceed in maximum intended, and is a mul- what the longest extended term which would be au- criminal trans- tiple conviction for a thorized 532.080 I would limit to the fact class of crime action. for which *4 tences is In this case it means situation in that case. the aggregate
minate sentences twenty shall not exceed AKER, J., joins in this dissent. (20) years.
Appellant was convicted of both theft of pie safe and dishes and
receiving the same property. We have af- v.
firmed Sutton following the conviction
Commonwealth, (1981). Ky., 623
Sutton holds that legislative change the offense of re-
terminology describing
ceiving property permits stolen one who property
steals to be convicted of both theft BAILEY, George E. Sutton knowingly receiving. states: applies “KRS who ‘receives, retains disposes of movable REEVES, Motley W. another
property knowing it has been stolen.’ it covers the thief Literally, Supreme Court who retains or he has disposes property 19, 1984. stolen himself.” Sutton states further: (Sutton)
“The facts of illustrate the wis- construing
dom of so the law. Sutton apprehended County
was in Edmonson property items of he had various hold
stolen three other counties. To
that he could be prosecuted only in a
other three counties would result
great deal of incon- unnecessary expense,
venience and waste of time to reach the
same end.” result-oriented, was difficulty case shows the approach. interpret
such an the action of broadening to in-
describing receiving property “retaining” nothing
clude the word