RENDERED:
JANUARY 5, 2001; 10:00 a.m. NOT TO BE PUBLISHED
C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1999-CA-002993-MR
LEE PAGE BURNETT
APPELLANT
v.
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE R. JEFFREY HINES, JUDGE ACTION NO. 98-CR-00110
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE: Lee Page Burnett has appealed from an order entered by the McCracken Circuit Court on November 22, 1999, that modified his original five-year prison sentence by sentencing him to an additional period of three years conditional discharge. Since the Commonwealth in its brief agrees that Purvis v.
Commonwealth,1 requires reversal of the sentence, we reverse and remand.2 Burnett was indicted on June 26, 1998, on four counts of sexual abuse in the first degree.3 On August 25, 1998,
Burnett accepted the Commonwealth’s offer of a five-year prison sentence and pled guilty. On October 16, 1998, the trial court
entered its final judgment and sentenced Burnett to prison for five years. Burnett was also ordered to complete the sex
offender treatment program through the Department of Corrections. In an order entered on November 22, 1999, the trial court further sentenced Burnett “to an additional period of three (3) years conditional discharge upon completion of his incarceration or parole.” This appeal followed. Citing Purvis, supra, Burnett claims in his brief that “[t]he additional three year conditional discharge imposed by KRS 543.043 is an ex post facto law. Thus, the statute is In its brief, the
unconstitutional as applied to Appellant.”
Commonwealth states that “[b]ecause the appellant’s argument is legally correct under Purvis on the facts shown by the record and apparently exempt from preservation, the Commonwealth lacks any legitimate argument to support the circuit court’s order.
1
Ky., 14 S.W.3d 21 (2000).
In defense of the trial judge, we note that the sentencing order was entered on November 22, 1999, and Purvis was not rendered until March 23, 2000.
3
2
Kentucky Revised Statutes (KRS) 510.110. -2-
Therefore, the Commonwealth agrees that reversal of the order of November 22, 1999, is required.” Accordingly, the order entered by the McCracken Circuit Court on November 22, 1999, is reversed and this matter is remanded for further proceedings consistent with this Opinion. ALL CONCUR. BRIEF FOR APPELLANT: Elizabeth Shaw Richmond, KY BRIEF FOR APPELLEE: A.B. Chandler, III Attorney General Ian G. Sonego Assistant Attorney General Frankfort, KY
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