CARL GREEN v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: DECEMBER 3, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-000198-MR
CARL GREEN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS WINE, SPECIAL JUDGE
INDICTMENT NO. 78-CR-000859
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and SCHRODER, Judges.
HUDDLESTON, Judge:
Carl Green appeals from a Jefferson Circuit
Court order that denied his Kentucky Rule of Criminal Procedure
(RCr) 11.42 motion to vacate his sentence.
whether
Green’s
RCr
11.42
motion
was
The sole issue is
timely
filed
under
RCr
11.42(10).
The jury convicted Green of wanton murder, burglary in
the first degree and rape in the first degree.
Green also pled
guilty to three counts of burglary in the first degree, one count
of criminal attempt to commit murder, three counts of robbery in
the first degree and two counts of rape in the second degree.
On
March 10, 1980, Green was sentenced to serve concurrent terms for
the crimes, with the maximum sentence being life imprisonment for
wanton murder.
On that same day, Green waived his right to a
direct appeal of his convictions.
Green filed his RCr 11.42 motion with the Jefferson
Circuit Court on June 18, 1998.
hearing,
the
circuit
court
Without holding an evidentiary
denied
his
motion.
This
appeal
followed.
RCr 11.42(10), upon which the circuit court relied,
provides that:
Any motion under this rule [RCr 11.42] shall be
filed within three years after the judgment becomes
final, unless the motion alleges and the movant proves
either:
(a)
that
the
facts
upon
which
the
claim
is
predicated were unknown to the movant and could not have
been ascertained by the exercise of due diligence; or
(b)
that
the
fundamental
constitutional
right
asserted was not established within the period provided
for herein and has been held to apply retroactively.
If the judgment becomes final before the effective
date of this rule, the time for filing the motion shall
commence upon the effective date of this rule. If the
motion qualifies under one of the foregoing exceptions to
the three year time limit, the motion shall be filed
within three years after the event establishing the
exception
occurred.
Nothing
-2-
in
this
section
shall
preclude the Commonwealth from relying upon the defense
of laches to bar a motion upon the ground of unreasonable
delay
in
filing
when
the
delay
has
prejudiced
the
Commonwealth's opportunity to present relevant evidence
to contradict or impeach the movant's evidence.
Rcr 11.42(10) became effective on October 1, 1994, and all RCr
11.42 motions challenging final judgments entered prior to that
date must have been filed by October 1, 1997.
Green failed to timely file a RCr 11.42 motion.
Because
the judgment of conviction was entered on March 10, 1980, he was
required to file his RCr 11.42 motion by October 1, 1997.
Green
has failed to adequately plead that his motion is governed by
either of the two exceptions to the time limitation for filing a
RCr 11.42 motion.
Therefore, the circuit court did not have
jurisdiction to consider his motion.
Accordingly, we affirm the order denying Green’s RCr
11.42 motion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl Green, pro se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
