COMMONWEALTH OF KENTUCKY v. KEVIN F. BLACK
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002492-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 90-CR-01993
KEVIN F. BLACK
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
The Commonwealth of Kentucky (the State)
appeals from an order of the Jefferson Circuit Court entered
September 22, 1998, which ordered that the criminal record of
Kevin F. Black (Black) be expunged.
We reverse and remand.
In November 1990, Black was indicted on one count of
theft by failure to make required disposition of property over
$100 under KRS 514.040.
Although the current version of KRS
514.070 provides that theft by failure to make required
disposition of property over $100 is a Class A misdemeanor, (to
be a felony the amount now must be in excess of $300) at the time
of Black’s indictment it was a Class D felony.
Black entered a
guilty plea to the charge against him and was sentenced to five
years’ imprisonment.
His sentence was ultimately probated for
five years along with the requirement that he make restitution
(in the amount of $6,510.00) to the victim of his crime by order
of the Jefferson Circuit Court entered July 1, 1991.
During the first two years of his probation, Black only
made six of the required restitution payments and was ultimately
brought back before the Jefferson Circuit Court for a hearing on
a motion to revoke probation.
Following a hearing, the Court
increased the amount of Black’s monthly restitution payments, and
the issue of whether to revoke probation was held open pending
Black’s compliance with his duty to pay restitution.
On July 21, 1998, Black filed a pro se motion to
expunge his record with the trial court.
In his motion and
affidavit, Black alleged that he had made full restitution in
compliance with the judgment entered against him.
Although the
State has never challenged Black’s allegation that he had made
payment in full, aside from Black’s affidavit, there was no
evidence that full restitution had in fact been made.
The
Commonwealth responded to Black’s motion by arguing that pursuant
to KRS 431.076 and KRS 431.078, expungement is proper only where
the movant has been convicted of a misdemeanor, or where the
movant has either been acquitted of the criminal charges against
him or had pending criminal charges dismissed with prejudice.
On
September 22, 1998, the trial court entered an order expunging
Black’s record upon his payment of a $25.00 fee.
entered without the benefit of a hearing.
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The order was
This appeal followed.
Pursuant to KRS 431.076, a person who has been
acquitted of a criminal offense or a person who has had criminal
charges against him dismissed with prejudice may petition for
expungement of criminal record.
Obviously, Black is not entitled
to expungement under this section.
Under KRS 431.078, a person who has been convicted of a
misdemeanor may petition the court for expungement of his
misdemeanor record.
KRS 431.078(1).
It is obvious that Black is
not entitled to expungement under this section either as he was
convicted of a felony as opposed to a misdemeanor.
Although KRS
514.070 was amended subsequent to Black’s sentencing to make
failure to make required disposition of property over $100 a
misdemeanor, that amendment does not automatically change Black’s
conviction to a misdemeanor as opposed to a felony.
Besides being a felony and thus not covered by KRS
431.078, other grounds exist for reversing the trial court’s
order of expungement.
KRS 431.079(3) requires that upon receipt
of a motion to expunge, the trial court:
shall set a date for a hearing and shall
notify the county attorney; the victim of the
crime, if there was an identified victim; and
any other person whom the person filing the
petition has reason to believe may have
relevant information related to the
expungement of the record.
KRS 431.078(3).
The trial court may not order expungement
unless:
if at the hearing, the court finds that:
(a) The offense was not a sex
offense or an offense committed
against a child;
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(b) The person had no previous
felony conviction;
(c) The person had not been
convicted of any other misdemeanor
or violation offense in the five
(5) years prior to the conviction
sought to be expunged;
(d) The person had not since the
time of the conviction sought to be
expunged been convicted of a
felony, a misdemeanor, or a
violation;
(e) No proceeding concerning a
felony, misdemeanor, or violation
is pending or being instituted
against him; and
(f) The offense was an offense
against the Commonwealth of
Kentucky.
KRS 431.078(4).
Here, there was no hearing prior to entry of the
order granting expungement, and no findings entered as required
by KRS 431.078(4).
Therefore, the trial court erred in ordering
Black’s record expunged.
Having considered the parties’ arguments on appeal, the
order of the Jefferson Circuit Court is reversed and remanded
with instructions to enter an order consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David M. Lewis
Special Assistant
Attorney General
Louisville, KY
Kevin F. Black
Charlestown, IN
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