BUTLER (LAKINDA SHAREE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 5, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001484-DG
LAKINDA SHAREE BUTLER
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-XX-00006
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
THOMPSON, JUDGE: Lakinda Sharee Butler appeals the Fayette Circuit Court’s
order affirming the Fayette District Court’s judgment of conviction. For the
reasons stated herein, we affirm.
On January 5, 2007, Butler was charged with possession of marijuana
and first-degree possession of a controlled substance. On January 29, 2007, Butler
entered a guilty plea to possession of marijuana wherein she received a twelvemonth sentence, which was probated for two years.
Before sentencing, the trial court inquired as to where Butler lived.
Butler replied that she lived in Memphis, Tennessee. The trial court then imposed
several probation conditions on Butler, including banishing her from Fayette
County except to pay fines. After the trial court expressly informed her regarding
these conditions, Butler acknowledged that her attorney discussed this with her and
that she had agreed to these terms.
Less than a year later, Butler accompanied a friend to a preliminary
hearing in Fayette County to demonstrate her support for her friend. She was then
arrested for violating her probation and, subsequently, ordered to serve her twelvemonth sentence. After unsuccessfully appealing to the Fayette Circuit Court, this
Court accepted discretionary review.
Butler contends that the trial court violated her constitutional rights by
banishing her from Fayette County. Citing federal and state case law, she contends
that the United States Constitution guarantees its citizens the right to travel freely
within the borders of the United States. Thus, she contends that her banishment
violated her constitutional right of free travel.
The judicial granting of probation has long been recognized as a
privilege rather than a right. Brown v. Commonwealth, 564 S.W.2d 21, 23
(Ky.App. 1977). “One may retain his status as a probationer only as long as the
trial court is satisfied that he has not violated the terms or conditions of the
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probation.” Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.App. 1986).
However, Kentucky courts have no authority to impose banishment on a person as
condition of probation as an alternative to imprisonment. Weigand v.
Commonwealth, 397 S.W.2d 780, 781 (Ky. 1966).
Despite the fact that a convicted criminal may be subjected to an
improper condition of probation, the judgment of conviction is separable and, thus,
survives the void probation order. Weigand, 397 S.W.2d at 781. Under such
circumstances, “[t]he probation itself being a nullity there is nothing left for [an]
appellant to do but serve [her sentence].” Id. To prevent this occurrence, a person
must challenge the improper condition at the time it is imposed. Id.
In this case, Butler accepted the benefit of an invalid probation order
but violated the order and was sent to county jail. Although Butler now contends
that her constitutional right to freely travel within the United States was violated by
the probation condition, she was required to make this argument at the time the
condition was imposed. Id. Rather, she accepted the void probation with the
benefit of avoiding jail and, subsequently, violated it. Therefore, Butler’s service
of her twelve-month sentence is not a violation of her constitutional rights.
For the foregoing reasons, the order of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
John Lindsay Tackett
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
Gene A. Dauer
Special Assistant Attorney General
Frankfort, Kentucky
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