FREDDIE HAYES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 3, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-000756-MR
FREDDIE HAYES
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 1968-CR-07983
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Freddie Hayes appeals, pro se, from the denial
of his post-conviction motion to vacate the sentences imposed
following his conviction for Rape in the First Degree and Armed
Robbery. Hayes is serving a life sentence and a ten-year sentence.
He filed a motion under Ky. R. Crim. Proc. (RCr) 11.42 seeking to
vacate his sentences on the ground that the trial judge failed to
sign the judgment imposing them as required by RCr 11.04(3).
Hayes was convicted in 1970. His conviction was affirmed
by the former Court of Appeals1 on March 26, 1971.
Thereafter,
Hayes filed a RCr 11.42 motion seeking to set aside his conviction
1
Now the Supreme Court.
on the ground that the trial court lacked jurisdiction to try him,
and
because
counsel.
he
allegedly
received
ineffective
assistance
of
His RCr 11.42 motion was denied, and on July 3, 1992,
this Court affirmed that decision in a published opinion, Hayes v.
Commonwealth, Ky. App., 837 S.W.2d 902 (1992).
On June 17, 1998, Hayes filed a Ky. R. Civ. Proc. (CR)
60.03 motion to vacate his conviction alleging, as he does in the
present RCr 11.42 motion, that the trial judge failed to sign the
judgment.
On July 29, 1998, the trial court denied his motion.
In
an opinion rendered on August 13, 1999, this Court in appeal number
1998-CA-002034-MR, affirmed the denial of Hayes’s CR 60.03 motion,
holding that inasmuch as the trial judge had signed an order book
containing the judgment, that act was sufficient to comply with RCr
11.42(3).
The issue raised in this appeal is precisely the same
issue
as
that
raised
in
appeal
number
1998-CA-002034-MR.
Furthermore, Hayes’s present RCr 11.42 motion is a successive
motion and it was subject to dismissal on that ground.
RCr
11.42(3) provides that a post-judgment motion to vacate a sentence
“shall state all grounds for holding the sentence invalid of which
the movant has knowledge.
Final disposition of the motion shall
conclude all issues that could reasonably have been presented in
the same proceeding.”
See Shepherd v. Commonwealth, Ky., 477
S.W.2d 798 (1972); Crochrell v. Warren, Ky., 383 S.W.2d 377 (1964).
The order denying Hayes’s RCr 11.42 motion is affirmed.
ALL CONCUR.
-2-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Freddie Hayes, pro se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
-3-
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