RUBEN HICKS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-001665-MR
RUBEN HICKS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 94-CR-00764
COMMONWEALTH OF KENTUCKY
AND:
No.
APPELLEE
1997-CA-001943-MR
RUBEN HICKS
APPELLANT
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 91-CR-00159
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
EMBERTON, GARDNER and SCHRODER, Judges.
EMBERTON, JUDGE.
Ruben B. Hicks appeals, pro se, from an order
of the Fayette Circuit Court entered on July 23, 1997, revoking
his probation and sentencing him to four years in the state
penitentiary to run consecutively with any other felony
sentences.
Hicks contends his probation was revoked in violation
of Ky. Rev. Stat. (KRS) 533.040(3).
He argues that the circuit
court should have corrected his sentence upon revocation of
probation to run concurrently with subsequent convictions because
his probation was revoked more than ninety days after the grounds
for revocation came to the attention of the Department of
Corrections.
After reviewing the record and considering the
arguments of the parties, we affirm.
On March 15, 1991, Hicks pled guilty to a charge of
possession of a controlled substance, for which the court imposed
a sentence of probation.
On September 19, 1995, an affidavit to
revoke Hicks’ probation was filed in Fayette Circuit Court.
The
basis for the affidavit was Hicks’ violation of the terms of his
probation by receiving a new conviction.
A bench warrant for
Hicks’ arrest was issued on September 25, 1995, and was
subsequently served on appellant on September 26, 1995, resulting
in a detainer being placed on Hicks.
A probation revocation hearing was set for September
29, 1995.
However, as a result of requests for continuances by
appellant’s counsel, and later by appellant himself, the hearing
was not held until July 18, 1997.
On July 23, 1997, an order was
entered revoking Hicks’ probation and ordering consecutive
sentences to be served in the state penitentiary.
The sole issue to be addressed on appeal is whether the
revocation violated the ninety-day requirement in KRS 533.040(3),
which states:
A sentence of probation or conditional
discharge shall run concurrently with any
federal or state jail, prison, or parole term
for another offense to which the defendant is
or becomes subject during the period, unless
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the sentence of probation or conditional
discharge is revoked. The revocation shall
take prior to parole under or expiration of
the sentence of imprisonment or within ninety
(90) days after the grounds for revocation
come to the attention of the Department of
Corrections, whichever occurs first.
Generally a revocation of probation that occurs outside
the ninety-day period is to be run concurrently with any other
offense.
Sutherland v. Commonwealth, Ky., 910 S.W.2d 235, 237
(1995).
Hicks contends the court’s revocation of probation did
not meet the ninety-day requirement and as a consequence his
sentences should run concurrently.
It has been held by this court that a defendant has a
right to a hearing within ninety days of having a detainer placed
on him.
Myers v. Commonwealth, Ky. App., 836 S.W.2d 431, 433-434
(1992), overruled on other grounds by Sutherland v. Commonwealth,
910 S.W.2d 235 (1995).
As applied to the case now before this
court, the ninety-day time requirement would have taken effect at
the time Hicks was placed on detainer.
Therefore, Mr. Hicks is
correct in asserting September 26, 1995, as the date from which
the ninety-day limit should run.
However, his conclusion that
the sentences should run concurrently is incorrect.
The ninety-day limitation in KRS 533.040(3) is intended
to require the Department of Corrections to push for revocation
proceedings in a speedy manner.
Sutherland at 237.
However, the
right to a revocation hearing within ninety days can be waived by
the defendant.
Myers at 434.
In the case at bar, a revocation
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hearing was originally set for September 29, 1995, three days
following Mr. Hicks’ detainer.
On that date, Hicks’ attorney, in
the presence of Hicks, requested a continuance for the probation
revocation hearing.
At that time, the court set a new hearing
for September 27, 1996.
Similar requests continued to be made by
appellant’s counsel and later by appellant himself.
The effect of each request by Hicks was a waiver of his
right to a hearing within ninety days of his detainer.
Therefore, any delay in the revocation hearing was not a
violation of KRS 533.040(3), and it was proper for the court to
order consecutive sentences.
The other issues asserted by the appellant have not
been appropriately raised for us to address at this time.
For the foregoing reasons, we affirm the order of the
Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ruben B. Hicks, Pro Se
West Liberty, Kentucky
A. B. Chandler III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, Kentucky
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