NORMAN SCOTT SHARP v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 31, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
97-CA-3151-MR
NORMAN SCOTT SHARP
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 90-CR-00075
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * *
BEFORE:
HUDDLESTON, JOHNSON, and MILLER, JUDGES.
MILLER, JUDGE.
Norman Sharp (Sharp) appeals pro se from an order
of the Shelby Circuit Court entered on November 18, 1997, denying
his motion for jail-time credit brought pursuant to Ky. Rev.
Stat. (KRS) 532.120.
We affirm.
In August 1990, the Shelby County Grand Jury indicted
Sharp on two felony counts of first-degree rape, one felony count
of first-degree sodomy, and two felony counts of sexual abuse
involving his two young stepdaughters.
In September 1991, a jury
found Sharp guilty on all five counts and recommended consecutive
sentences totaling eighty-five (85) years.
After the trial court
issued a final judgment sentencing him consistent with the jury's
recommendation, Sharp appealed.
At that time, Sharp was released
from custody on a $50,000.00 cash bond pending appeal.
On March 14, 1992, Sharp was arrested in Franklin
County on a charge of rape, and placed in the Franklin County
Detention Center.
On March 16, 1992, the Shelby Circuit Court
issued a detainer warrant of arrest for Sharp for violating the
conditions of his appeal bond, and the detainer was served on the
Franklin County Detention Center.
On March 18, 1993, the Kentucky Supreme Court rendered
a published opinion reversing Sharp's conviction in Shelby County
and remanding for a new trial.
849 S.W.2d 542 (1993).
See Sharp v. Commonwealth, Ky.,
While awaiting retrial in Shelby County,
Sharp pleaded guilty to third-degree rape in Franklin County and
was sentenced to serve five years in prison.
On March 6, 1995,
Sharp pleaded guilty in Shelby County to two counts of firstdegree sexual abuse pursuant to a plea agreement.1
According to
the plea agreement, the Commonwealth agreed to dismiss the two
counts of first-degree rape and first-degree sodomy, and
recommend sentences of five years on each of the two sexual abuse
counts to run consecutively with each other for a total of ten
years.
These sentences were to run consecutively with the five-
year sentence out of Franklin County.
1
The Commonwealth also
Sharp states that he also pled guilty to one count of
unemployment insurance fraud and received a five-year sentence
based on an indictment out of Anderson County.
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recommended that the ten-year sentence be probated with a
condition that Sharp enroll in and complete the Sexual Offenders
Treatment Program offered by the Department of Corrections.
On
April 6, 1995, the trial court sentenced Sharp consistent with
the Commonwealth's recommendation by suspending the ten-year
sentence and placing Sharp on probation for a period of five
years.
The trial court gave Sharp no days credit for jail-time
toward service of the sentence.
The detainer issued earlier was
released based on the judgment of probation.
In September 1997, Sharp filed a motion for jail-time
credit in Shelby Circuit Court seeking credit for the time he
spent in custody prior to the final judgment of conviction.
In
October 1997, Sharp supplemented his motion with an additional
memorandum.
motion.
On November 18, 1997, the trial court denied the
This appeal followed.
Sharp contends that he is entitled to receive jail-time
credit on his ten-year sentence for the period of time he was
incarcerated from March 1993, when his appeal bond was revoked,
until April 1995, when final judgment was entered.2
Sharp relies
on KRS 197.041, which provides as follows:
If a defendant is confined in the
penitentiary during the pendency of an appeal
and, on reversal, is again convicted, he
shall be given credit for the period so
confined in determining his date of
eligibility for parole and his date of
release by expiration of sentence.
2
days.
Sharp calculates this period as three years and twelve
The correct calculation is actually just over two years.
-3-
The trial court denied the motion because "the sentence
on the guilty plea was probated by the Court's order entered
April 6, 1995, therefore jail time credit not being an issue."
The problem with Sharp's argument is that he has never been
sentenced to imprisonment on the Shelby County judgment.
remains on probation at this time on this conviction.
532.120(3) states:
He
KRS
"Time spent in custody prior to the
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 (emphasis added)."
Jail-time credit is relevant
only to a period of incarceration on a sentence.
Because the
ten-year term of imprisonment was suspended and Sharp was placed
on probation, any credit for jail-time is not relevant.
request for jail-time credit is premature.
Sharp's
Consequently, the
trial court did not err in denying the motion.
In addition, the record suggests that Sharp was
incarcerated during this period on the charges from Franklin
County.
Under KRS 532.120(3), a defendant is entitled to credit
for jail-time spent "as a result of the charge that culminated in
the sentence."
See Handley v. Commonwealth, Ky. App., 653 S.W.2d
165, 166 (1983).
KRS 532.120(4) allows credit for time spent in
jail on a sentence for which a detainer was lodged only "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 Franklin County charges resulted in a
-4-
conviction, so the time spent during the period for which Sharp
now seeks credit was counted toward service of his Franklin
County conviction.
In addition to the premature status of the request,
based on the current record, Sharp has not established
entitlement to the jail-time credit he seeks.
Sharp's allegation
that the trial court's failure to give him jail-time credit on
the Shelby County conviction delayed the date on which the
Franklin County sentence commenced is not supported by the
record.
For the above-stated reasons, we affirm the order of
the Shelby Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Norman Scott Sharp, Pro Se
LaGrange, Kentucky
A. B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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