*1 Sprinkle, TIPTON James Ronald Kentucky, Appellee. of
COMMONWEALTH Appeals Kentucky. of
4,Oct. Opinion
Concurring Oct. Tipton, pro Ronald se. Rehearing As Modified Denial of Sprinkle, pro se. James' Atty. Gen., B. Breckinridge, John Joe Nagle, Atty. Gen., Asst. Frankfort, for appellee.
CULLEN, Commissioner. Appellants, who are confined in the. n penitentiary under of the Clark Court convicting Circuit them armed robbery, filed motion in the Clark Circuit , Court, under RCr 11.42 to ground the offense they of which did were convicted not occur Their motion was over- appealed ruled and from the overruling order. substance claim
for relief was was an insuffi there ciency proof at venue their trial. Waddill, Ky., In Sharp v. insufficiency proof of we held that venue is not for collateral of a does authorize of conviction
relief from
court.
In order
mere errors of the trial
abe
to be
there must
the rule
invoked
right, a lack
violation of
stat
of a
jurisdiction,
or such violation
void and there
ute
make the
Though
subject to collateral attack.
fore
more satis
new and
designed to furnish a
remedy
factory
form
grounds
any new
does not establish
exception
possible
remedy (with
imposition
excess
by law).
*2
(I
motion is
The basis of
tain conditions the
was frontal.
have
supported
not
could
am
extent in this view
one
some
copies
Accordingly,
by
published
the
in
the
collaterally
been
attacked.
the comment
supplements
properly overruled the motion.
which reads:
11.42
court
“RCr
provides
post-conviction
CR 60.02 and
re-
is affirmed.
The order
procedure
view
consistent with the trend of
Supreme
pronouncements.”)
U. S.
Court
MOREMEN, J., concurring in the result.
11.42,
pertinent part
A
of RCr
reads:
prisoner
custody
“A
in
under sen-
MOREMEN,
(concurring).
Judge
right
tence who claims a
to be released
by the
obtained
the result
I
with
concur
on the
that the
im-
sentence was
bill
bystander’s
opinion. The
majority
posed in violation of the Constitution
in
appellants
and the admission
evidence
or
or of
statutes of the Commonwealth
brief disclose
in their
the statement of facts
States,
the United
or that
County
Campbell
began» in
crime
ju-
imposing the sentence was without
County.
consummated
and was
so,
risdiction to do
or that the sentence
reenacted
(now
Under KRS
by
was in excess
is a doubt
where there
452.630)
KRS
subject
law or is otherwise
to collateral
county
the
court of
opinion
circuit
of the
attack, may
any
file a motion at
time in
found
indictment
in which the
imposed
the court which
the sentence
in that
offense was
whether the
vacate,
set aside or correct
the
county
court
in some other
county or
—the
same.”
was
the indictment
county in which
of the
may
It
be noted that
the motion to
(in the
jurisdiction
returned shall
will lie when the sentence is
Appellants
venue) of the offense.
sense of
imposed:
properly tried in Clark
1. In violation of the Constitution
the'interpretation
of the
I believe that
of the
statutes
Commonwealth or of
is incor-
meaning
and
the United States.
adoption-
correct,
then the
rect.
it is
If
of-
because it
gesture,
futile
'the rule was a
imposing
2. When the Court
inquiry
scope of
no broader remedial
fers
sentence
without
to do
was
corpus.
habeas
than did the ancient writ of
so.
first,
assumes,
that
majority opinion
3. When the
was in excess
at
an
is a collateral
action under RCr 11.42
by
authorized
law or is other-
understand
upon
first
tack
subj
wise
ect to collateral attack.
juris
general
a court of
“collaterally
ei
diction cannot be
attacked”
adoption
Before the
such de-
any
rendered it or
ther in the court which
might
fects
be reached and corrected
court,
is void- —
unless
writ of habeas
but
this
White,
tain Buchanan, v. Hoskins during trial. 904; 246, Wooten Ky. 223 S.W.2d 311 310, Buchanan, 223 S.W.2d Ky. 311 v. Furthermore, will writ are invalidating defects Smith the trial. in the record shown 5, 44, Buchanan, Ky. 163 S.W.2d 291 v. Buchanan, 813; Wolford v. A.L.R. al., Robert RAMEY et Even 512, Ky. 232 S.W.2d the denial RUTH, Appellee. Thomas if judgment void not render Kentucky. Appeals person and Buchanan, 291 Smith the offense. 28, Feb. 813.” 5, A.L.R. 44, 163 S.W.2d Davis, War- in Rice v. On den, Ky., 366 S.W.2d was revers- case and the
somewhat relaxed de- accused ground that the
ed on the counsel assistance
nied effective obtaining an effective
prevented him from record,
appeal. not shown This was it was In this case granted.
but relief in Ken- changing the rule are
“We corpus, so
tucky applicable the federal
that it will conform to Therefore, the extent
noted above. holdings are on this
our former are opinion they
in conflict with this
overruled.” apparently permits the use
The new rule irregularities” “extreme writ where
occur and such render the
ment void. But the limitation that present apparently be void still satisfy requirement col- old may only successfully
lateral be made
on a void
I reiterate that in cases of a direct attack void, required
it is not be
and believe RCr under conditions
specified permits a frontal attack.