MICHAEL LONNIE BURKE V. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-000709-MR
MICHAEL LONNIE BURKE
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NOS. 96-CR-000143 & 96-CR-000144
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, JUDGES.
HUDDLESTON, JUDGE.
Michael Burke appeals from a Kenton Circuit
Court order that denied his motion for additional jail-time credit
brought pursuant to Ky. Rev. Stat. (KRS) 532.120.
We affirm.
In April 1996, the Kenton County Grand Jury charged Burke
in
indictments
with
one
count
of
first-degree
stalking
(KRS
508.140), and with one count of possession of a handgun by a
convicted felon (KRS 527.040). Later that month, Burke pled guilty
in both cases pursuant to a plea agreement with the Commonwealth.
The Commonwealth moved to amend the Class C felony count of
possession of a handgun by a convicted felon to a Class D felony
count of possession of a firearm by a convicted felon, and it
recommended concurrent sentences for the two offenses. The circuit
court sentenced Burke to serve five years in prison on each of the
two offenses to run concurrently for a total of five years.
Nine
months later, Burke filed a motion for an additional ninety days'
jail credit pursuant to KRS 532.120 for the time he served in jail
on an earlier misdemeanor conviction.
The court summarily denied
the motion and this appeal followed.
Burke alleges that on October 31, 1995, he was arrested
in Boone County on a felony charge of first-degree wanton endangerment
and
several
shoplifting.
misdemeanors
involving
traffic
offenses
and
On November 1, 1995, a felony bench warrant was
issued by the Kenton District Court on a felony charge of possession of a firearm by a convicted felon allegedly committed on
August 28, 1995.
The Kenton County warrant apparently was served
as a detainer while Burke was in the Boone County Detention Center
awaiting resolution of the charges in Boone County. On November 9,
1995,
Burke
pled
guilty
to
the
shoplifting
offense
and
was
sentenced to thirty days in jail with nine days' credit time.
The
remaining charges were waived to the grand jury, which returned a
no
true
bill
on
the
felony
first-degree
wanton
endangerment
offense, a charge that was later amended to a misdemeanor charge of
second-degree wanton endangerment.
On December 28, 1995, Burke
pled guilty in Boone County District Court to resisting an order to
stop a motor vehicle and second-degree wanton endangerment. He was
sentenced to twelve months in jail, but nine months of the sentence
were suspended, and he received thirty days' credit time with the
2
remaining sixty days to be served.
On January 29, 1996, Burke was
released from custody in Boone County after having served the jail
sentences imposed.
Immediately following Burke's release in Boone
County, Kenton County police officers arrested Burke and lodged him
in the Kenton County jail.
On April 4, 1996, the Kenton County
Grand Jury indicted Burke for first-degree stalking committed in
April 1995, and for possession of a firearm by a convicted felon
committed in August 1995.
On February 20, 1997, Burke filed a motion for additional
jail credit seeking credit on his Kenton County felony convictions
for the ninety days he served in jail on his Boone County misdemeanor convictions.
Burke argues that under KRS 532.110, the
misdemeanor sentences must run concurrent with the felony sentences, and under KRS 532.120(3), the time spent in jail on the
misdemeanor should be credited toward the felony sentences.
We
disagree.
KRS 532.120(3) provides that:
Time spent in custody prior to commencement of a sentence
as a result of the charge that culminated in the sentence
shall be credited by the court imposing sentence toward
service of the maximum term of imprisonment.
If the
sentence is to an indeterminate term of imprisonment, the
time spent in custody prior to the commencement of the
sentence shall be considered for all purposes as time
served in prison.
3
The time Burke spent in jail between October 31, 1995, and
January 29, 1996 was related solely to the Boone County charges.
Burke was not taken into custody by the Kenton County officers
until January 29, 1995, after he had finished serving his sentence
on the misdemeanor offenses in Boone County.
He was not indicted
on the Kenton County offenses until April 4, 1996.
Burke received
credit on his Boone County sentence for the pre-conviction time he
spent in the Boone County Detention facility.
The time spent in
custody in Boone County clearly was not "as a result of the charge
that culminated in the sentence" in Kenton County.
See Handley v.
Commonwealth, Ky.App., 653 S.W.2d 165, 166 (1983).
Burke's argument that the time spent in the Boone County
jail should be credited toward the Kenton County sentence because
a detainer warrant for the Kenton County charge of possession of
firearm by a convicted felon was lodged while he was serving his
misdemeanor sentence in Boone County is unavailing. KRS 532.120(4)
provides:
If a person has been in custody due to a charge that
culminated in a dismissal, acquittal, or other disposition not amounting to a conviction, the amount of time
that would have been credited under subsection (3) of
this section if the defendant had been convicted of that
charge shall be credited as provided in subsection (3) of
this section against any sentence based on a charge for
which a warrant or commitment was lodged during the
pendency of that custody.
4
This provision indicates that a defendant may receive credit for
time spent in jail related to charge on which a warrant detainer is
lodged only if the original charges are disposed of without a
conviction, which prevents persons from receiving double credit.
Burke's misdemeanor convictions resulted in a conviction, so he was
not entitled to receive credit for time spent in Boone County on
the sentence in Kenton County related to the detainer warrant.
Burke was never detained in Boone County on the Kenton County
charges.
Burke's reliance on KRS 532.110 and Powell v. Payton,
Ky., 544 S.W.2d 1 (1976) is misplaced.
KRS 532.110(1)(a) provides
that multiple sentences for misdemeanor and felony offenses shall
run concurrently.
In the case at hand, Burke had finished serving
his misdemeanor sentence in Boone County before the Kenton County
officials ever took custody of him.
KRS 532.120 is more specific
and more readily applicable to this situation.
Similarly, in
Powell v. Payton, supra, the court held that KRS 532.110(1)(a)
could apply to sentences imposed in two different counties at
different times.
In Powell, however, the defendant had been
convicted of a felony and was serving his sentence at the time a
later misdemeanor conviction became final. Unlike the situation in
Powell,
Burke
was
never
subject
to
overlapping
sentences to be served at the same time.
or
multiple
As a result, the trial
court did not err by refusing to give Burke credit on his Kenton
County felony convictions for the time spent in jail on the Boone
County misdemeanor convictions.
5
For the foregoing reasons, we affirm the order denying
Burke's motion for additional jail credit.
ALL CONCUR.
6
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Lonnie Burke, Pro Se
LaGrange, Kentucky
A. B. Chandler III
Attorney General
Todd D. Ferguson
Asst. Attorney General
Frankfort, Kentucky
7
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