TIPTON (EARL D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 13, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002131-MR
EARL D. TIPTON
v.
APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 95-CR-00012
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
ACREE, JUDGE: The appellant, Earl D. Tipton, seeks reversal of the Powell
Circuit Court order denying relief for alleged malfeasance by the prosecutor. The
appellant has appealed his conviction via two direct appeals, Kentucky Rule(s) of
Civil Procedure (CR) 60.02, and Kentucky Rule(s) of Criminal Procedure (RCr)
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute(s)
21.580.
11.42. Tipton has exhausted his remedies and is not permitted to collaterally attack
the judgment against him. Therefore, we affirm.
In January 1997, Tipton was convicted of three counts of rape, one
count of kidnapping, and one count of sodomy. He took a direct appeal to the
Supreme Court of Kentucky which affirmed his conviction, but remanded to the
circuit court for a new sentencing trial. The retrial of the sentencing phase
occurred on April 11, 2000; he was sentenced to twenty years on each count to run
consecutively for 100 years. Tipton took a second direct appeal to the Supreme
Court and that sentence was affirmed on November 21, 2002.
In January of 2003, Tipton filed a pro se motion for relief under RCr
11.42. The motion was denied and Tipton appealed the decision to the Kentucky
Court of Appeals which affirmed the decision of the circuit court.
On June 4, 2007, Tipton filed a pro se motion to dismiss the
indictment and judgment pursuant to CR 60.02. The motion included several of
the issues raised in this appeal. The circuit court denied his motion. On November
5, 2007, Tipton filed another CR 60.02 motion which also included issues repeated
in this appeal.
Tipton subsequently filed a motion labeled “Prosecutor Herald
committed Misfeasanceby [sic] misapplying the statutes used in this case.” It is
unclear under which rule Tipton is attempting to base his motion. Tipton also
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failed to attach a copy of the opinion from which he is appealing. It appears this
appeal is a result of the circuit court’s denial of the aforementioned motion because
Tipton asserted the same arguments in the motion that he now attempts to argue on
appeal. However, he is without recourse.
“The structure provided in Kentucky for attacking the final judgment
of a trial court in a criminal case is not haphazard and overlapping, but is organized
and complete.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). RCr
11.42
[p]rovides a vehicle to attack an erroneous judgment for
reasons which are not accessible by direct appeal. In
subsection (3) it provides that “the motion shall state all
grounds for holding the sentence invalid of which the
movant has knowledge. Final disposition of the motion
shall include all issues that could reasonably have been
presented in the same proceeding.”
Id. (quoting RCr 11.42). Relief under CR 60.02 is “for relief that is not available
by direct appeal and not available under RCr 11.42.” Id.
Tipton has already filed both an RCr 11.42 motion and a CR 60.02
motion. The arguments raised in this appeal could have been and should have been
raised previously and, in fact, were previously raised in prior motions. He simply
will not be permitted to have yet another bite at this apple. Gross v.
Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983) (citing Alvey v. Commonwealth,
648 S.W.2d 858 (Ky. 1983)). The decision of the circuit court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Earl D. Tipton, Pro se
Burgin, Kentucky
Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
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