COMMONWEALTH OF KENTUCKY V. JAMES BAILEY
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AMENDED: APRIL
1999-SC-1004-D
COMMONWEALTH OF KENTUCKY
APPEAL FROM THE CHRISTIAN
HONORABLE EDWIN M. WHITE, JUDGE
98-CR-165
V.
JAMES BAILEY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REMANDING
I. ISSUE
After a jury found Appellee guilty of a felony offense, the trial court granted him a
new trial. The Commonwealth appealed from the trial court’s new trial order and asked
the Court of Appeals to reinstate the jury’s verdict. The Court of Appeals held that the
Commonwealth could not obtain the relief it requested because the Commonwealth
could appeal from a new trial order only for the purpose of certifying the law.
Accordingly, the Court of Appeals declined to review the circuit court’s order and
dismissed the Commonwealth’s appeal. Is the Commonwealth’s appeal from an order
granting a new trial limited to a certification of the law? Because we find that, in the
context of an appeal by the Commonwealth from an order granting a new trial, KRS
22A.020(4) authorizes the Court of Appeals to reverse the trial court’s ruling and to
reinstate the trial verdict, we hold that the Commonwealth is not limited to seeking
certification of the law when a trial court grants a motion for a new trial.
II. FACTS
A Christian Circuit Court jury found Appellee, a deputy county clerk, guilty of
Tampering With Public Records, a violation of KRS 519.060, and recommended the
minimum sentence of one (1) year. At trial, the Commonwealth introduced evidence
suggesting that Appellee had deliberately under-reported monies collected by the
county clerk’s office from the public and diverted this money to a co-defendant who was
tried separately. Before his formal sentencing, Appellee filed a motion for a judgment
notwithstanding the verdict (or “JNOV,” an abbreviated form of the Latin “judgment non
obstante veredicto”)’ or, in the alternative, for a new trial.* In an order ruling favorably
‘RCr 10.24:
Not later than five (5) days after the return of a verdict
finding a defendant guilty of one or more offenses, or after
the discharge of the jury following their having not returned a
verdict, a defendant who has moved for a directed verdict of
acquittal at the close of all the evidence may move to have
the verdict set aside and a judgment of acquittal entered, or
for a judgment of acquittal. Likewise, if a defendant has
been found guilty under any instruction to which at the close
of all the evidence such defendant objected upon the ground
that the evidence was not sufficient to support a verdict of
guilty under that instruction, that defendant may move that to
that extent the verdict be set aside and a judgment of
acquittal entered. A motion for a new trial may be joined
with this motion.
*RCr 10.02:
(1)
Upon motion of a defendant, the court may grant a
new trial for any cause which prevented the
defendant from having a fair trial, or if required in the
interest of justice. If trial was by the court without a
(continued...)
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I
’
upon Appellee’s motion, the trial court expressed its concern that the jury’s verdict had
been influenced by irrelevant testimony concerning other office practices in the county
clerk’s office, and thus ordered: “A judgment n.o.v. is granted and a new trial ordered
which will deal only with whether or not KRS 519.060 was violated as it regards how the
money was handled and receipted going out of the box.”
The Commonwealth appealed to the Court of Appeals from this order.
The
Court of Appeals characterized the trial court’s order as one granting a new trial rather
than a JNOV, held that the Commonwealth could not appeal from such an order except
for purposes of certifying the law, and, inasmuch as the Commonwealth did not raise
any issue for certification, dismissed the Commonwealth’s appeal. The Commonwealth
sought, and this Court granted, discretionary review to consider issues relating to the
right of appeal provided for by KRS 22A.020(4).
III. CHARACTERIZATION OF TRIAL COURT’S ORDER
We agree with the Court of Appeals that the trial court’s order granted a new trial
pursuant to RCr 10.02 rather than a JNOV pursuant to RCr 10.24. Although certain
language in the order purports to grant a JNOV, we find the language that orders a new
trial dispositive as to the trial court’s clear intent. A JNOV would constitute an acquittal
“L ..continued)
(2)
jury, the court may vacate the judgment, take
additional testimony and direct the entry of a new
judgment.
Not later than ten (10) days after return of the verdict,
the court on its own initiative may order a new trial for
any reason for which it might have granted a new trial
on motion of a defendant, and in the order shall
specify the grounds therefor.
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of the charge3 that would leave nothing to be decided at a subsequent trial under the
indictment. In other words, to grant both a JNOV and a new trial is a conflict in the use
of the terms because a trial court could grant one orthe other, but not both because “[a]
motion for JNOV raises the single question: whether the evidence is sufficient to sustain
a conviction .r’4 However, “RCr 10.02 permits a trial court to grant a new trial for any
cause which prevented the defendant from having a fair trial, or if required in the
interest of justice.“’ Under RCr 10.02, therefore, absent a cause that does not appear
from the record of the trial, “the trial judge’s authority would not differ from that of this
court in reviewing the case on appeal . . . .‘I6 Stated otherwise, a motion for a new trial
is generally directed towards alleged errors committed during the course of the trial,
while a motion for JNOV is directed towards the sufficiency of the evidence. In the case
sub iudice, the trial court’s order reflects the court’s belief that certain evidence admitted
at Appellee’s trial affected the fairness of the proceedings, but the court clearly did not
determine that the evidence presented was insufficient to support the jury’s guilty
verdict.’ We agree with the Court of Appeals that the trial court did not intend to acquit
3RCr 10.24.
4Leslie Abramson, 9 Kentucky Practice, Criminal Practice and Procedure (3rd
ed.), § 32.10 (West Group 1997).
5Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576 (1997).
‘Jackson v. Commonwealth, Ky., 445 S.W.2d 835, 838 (1969).
71n fact, the trial court’s order acknowledges that factual issues appropriate for
jury resolution remain concerning Appellee’s dispersal of collected funds:
If the only evidence . . . had dealt with how money was
placed in the box and ‘accounted’ for, then this Court would
have directed a verdict of acquittal and conversely no
conviction could be had for making a false entry or really no
(continued.. .)
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Appellee of the offense by granting a JNOV, but rather granted him a new trial at which
a jury could again deliberate the evidence.
IV. APPEALS FROM AN ORDER GRANTING A NEW TRIAL
While the Kentucky Constitution prohibits the Commonwealth from appealing a
judgment of acquittal in a criminal case,8 this Court has held (in the context of the
Commonwealth’s appeal from an order granting a JNOV) that the Constitution “does
not prevent an appeal by the Commonwealth when a jury has returned a verdict of
guilty which has been set aside by a ruling of law to a postverdict motion.“g
The same
logic supports the conclusion that no constitutional prohibition prevents the
Commonwealth from appealing an order granting a new trial. However, because new
‘(...continued)
entry at the time the money was received. If the Defendant
has violated KRS 519.060, it must be based upon what
happened to the money once placed in the box. . . .The
question left for the iurv concerning the tampering statute is
whether or not the way the money was dispersed constitutes
making a false entry pursuant to the statute.
(emphasis added).
8K~. CONST . 5 115:
In all cases, civil and criminal, there shall be allowed as a
matter of right at least one appeal to another court, except
that the Commonwealth may not appeal from a judgment of
acauittal in a criminal case. other than for the purpose of
securina a certification of law. . . . Procedural rules shall
provide for expeditious and inexpensive appeals. Appeals
shall be upon the record and not by trial de novo.
(emphasis added).
‘Commonwealth v. Brindley, Ky., 724 S.W.2d 214, 216 (1986).
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trial orders have been characterized not as final orders,” but as interlocutory orders,
the state - in the absence of a statute or rule - generally cannot bring a direct
appeal” from an order setting aside a jury’s verdict and granting a new trial in a criminal
case.”
The Judicial AmendmentI
authorized the General Assembly to prescribe the
appellate jurisdiction of the newly-created Court of Appeals:
The Court of Appeals shall have appellate jurisdiction only,
except that it may be authorized by rules of the Supreme
Court to review directly decisions of administrative agencies
of the Commonwealth, and it may issue all writs necessary
in aid of its appellate jurisdiction, or the complete
determination of any cause within its appellate jurisdiction. In
“Black’s Law Dictionary 1123 (7’h ed. 1999) (“An order that is dispositive of the
entire case.“); 4 Am.Jur.2d, Appellate Review § 87 (“The classic definition of a final
decision, for the purpose of determining appealability, is a decision which terminates
the litigation on the merits and leaves nothing for the court to do but execute the
judgment.“); Keffer v. Keffer, 307 Ky. 831, 212 S.W.2d 314, 315 (1948) (“A final order
means one where the last say has been said, while an interlocutory order means one
that is ‘speaking between’ and that is therefore preceding the last say of the trial court
on the subject matter at hand.“); Faulkner v. Faulkner, 270 Ky. 693, 1 IO S.W.2d 465,
470 (1937) (“[Wle have repeatedly held that final judgments are ‘such as at once put an
end to the action by declaring that the plaintiff has either entitled himself or has not to
recover the remedy he sues for’; also that a final order, from which an appeal may be
prosecuted, is (as again defined) one which ‘either terminates the action itself, decides
some matter litigated by the parties, or operates to divest some right in such manner as
to put it out of the power of the court making the order, after the expiration of the term,
to place the parties in their original position.“’ (citations omitted)).
“We use the term “direct appeal” in contrast to a proceeding for extraordinary
relief in the form of a petition for a writ of prohibition or writ of mandamus, whereby
review of an interlocutory order, ruling, or decision of a trial court is sought by filing an
original action in the Court of Appeals pursuant to CR 76.36.
‘*4 Am.Jur.2d, Appellate Review §§ 184, 223.
13Ky. Const. §§ 109-124 (ratified by the voters at the regular election in
November, 1975 and effective January 1, 1976).
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all other cases, it shall exercise apoellate iurisdiction as
provided bv law.14
And, as part of the legislative package implementing the recently-adopted Judicial
Amendment, the legislature enacted KRS 22A.020(4)15
and authorized the
Commonwealth to file an interlocutory appealI from “an adverse decision or ruling” of
the circuit court:
An appeal may be taken to the Court of Appeals by the
state in criminal cases from an adverse decision or ruling of
the Circuit Court, but only under the following conditions:
Such appeal shall not suspend the proceedings in the
(a)
case.
Such appeal shall be taken in the manner provided by
(b)
the Rules of Criminal Procedure and the Rules of the
Supreme Court, except that the record on appeal
shall be transmitted by the clerk of the Circuit Court to
the Attorney General; and if the Attorney General is
satisfied that review by the Court of Appeals is
important to the correct and uniform administration of
the law, he may deliver the record to the clerk of the
Court of Appeals within the time prescribed by the
above-mentioned rules.
When an appeal is taken pursuant to this subsection,
w
the Court of Appeals, if the record so warrants, may
14Ky. Const. § 11 l(2) (effective January 1, 1976) (emphasis added). Even prior
to the adoption of the Judicial Amendment, the legislature prescribed the jurisdiction of
the then Court of Appeals, this Court’s predecessor:
The Court of Appeals shall have appellate jurisdiction only,
which shall be coextensive with the State, under such
restrictions and regulations not repugnant to this
Constitution, as may from time to time be prescribed by law.
Ky. Const. § 110 (repealed January 1 ,I 976 with the effective
date of the Judicial Amendment).
151976 Ky. Acts, ch. 70 § 3(4) (codified as KRS 22A.020(4)); Id. § 9 (“Whereas
the new constitutional provisions relating to courts became effective January 1, 1976,
an emergency is declared to exist, and this Act shall become effective upon its passage
and approval by the Governor.“).
‘@An appeal that occurs before the trial court’s final ruling on the entire case.”
Black’s Law Dictionary 94 (7th ed. 1999).
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reverse the decision of the Circuit Court and order a
new trial in any case in which a new trial would not
constitute double jeopardy or otherwise violate any
constitutional rights of the defendant.
Subsections (a) and (b) of KRS 22A.020(4) are analogous to sections 335 and
337 of Kentucky’s former Code of Practice in Criminal Cases:
An appeal shall only be taken on a final judgment, except
on behalf of the Commonwealth. An appeal by the
Commonwealth from a decision of the circuit court shall not
suspend the proceedings in the case. The decision of the
Court of appeals shall be obligatory on the circuit courts, as
being the correct exposition of the law.17
If an appeal on behalf of the Commonwealth be desired,
the Commonwealth’s attorney shall pray the appeal . . ,
whereupon the clerk shall immediately make a transcript of
the record and transmit the same to the attorney-general, or
deliver the transcript to the Commonwealth’s attorney, to be
transmitted by him. If the attorney-general, on inspecting the
record, be satisfied that error has been committed to the
prejudice of the Commonwealth, upon which it is important
to the correct and uniform administration of the criminal law
that the Court of Appeals should decide, he may, by lodging
the transcript in the clerk’s office of the Court of Appeals,
within sixty days after the decision, take the appeal.‘8
In construing those sections, this Court’s predecessor stated, “Sections 335 and 337,
when construed together, appear to authorize this court to review any ruling of the court
below in felony cases, whether it be final or not, and without reference to whether the
judgment be upon a verdict of a jury or whether it be a bar to another prosecution for
the same offense.“lg
We agree with our predecessor, and in construing KRS
17Code of Practice in Criminal Cases (1877) (repealed 1963) § 335.
181d. § 337.
‘gCommonwealth v. Cain, 77 Ky. 525, 14 Bush 525, 531 (1879); Commonwealth
v. Matthews, 89 Ky. 287, 12 S.W. 333 (1889); Commonwealth v. Neal, 223 Ky. 665, 4
S.W.2d 685, 686 (1928) (“The Criminal Code authorizes an appeal by the
(continued...)
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22A.O20(4)(a)&(b), we find that the General Assembly has authorized the
Commonwealth to appeal a circuit court order granting a new trial in a criminal case
regardless of whether or not the order is a final order.*’
The question remaining before us, however, is whether the Commonwealth may
appeal a new trial order in a criminal case for the purpose of seeking reinstatement of a
trial verdict of guilty or whether the Commonwealth may bring such an appeal only for
the limited purpose of certifying the law. Previously, in Commonwealth v. Littrell,*’ this
Court - after reviewing the creation and evolution of the Commonwealth’s right of
appeal in criminal cases** and recognizing the importance of providing the
commonwealth from any decision of the circuit court for the purpose of having the law
certified.“).
“We recognize, however, that a new trial order in a criminal case is different
from a new trial order in a civil case. Unlike a civil case, the review of a new trial order in
a criminal case may not be effectively deferred until after another trial. If the defendant
is acquitted upon retrial, the criminal proceedings against the defendant are concluded
and the doctrine of double jeopardy would bar the Commonwealth from seeking review
of the new trial order except for the purpose of certifying the law. See KRS
505.030(1)(a). This Court has defined an appealable order as “one which ‘operates to
divest some right in such a manner as to put it out of the power of the court making the
order . to place the parties in their original condition.“’ Murtv Bros. Sales Inc. v.
Preston, Ky., 716 S.W.2d 239, 241 (1986) (citation omitted). If a defendant is acquitted
upon retrial, double jeopardy principles prevent the trial court from placing the
Commonwealth back in the position it had secured with a guilty verdict. Therefore,
considering the effect of an order granting a defendant a new trial in a criminal case, it
may properly be classified as a final order as to the Commonwealth. But, we need not
reach that issue in this case since the legislature by virtue of KRS 22A.020(4) has
authorized the Commonwealth to appeal a new trial order in a criminal case. Finally, we
would note that 18 U.S.C. § 3731 affords the government a right of appeal from an
order of a district court granting a new trial after verdict or judgment in a federal
prosecution.
*‘KY., 677 S.W.2d 881, 885 (1984).
**“No review of criminal cases as of right existed at common law. The right to
appeal a criminal conviction is not inherent in the Federal Constitution. . . . In short, the
(continued...)
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Commonwealth with a means of seeking review of a new trial order23 - held that the
Commonwealth’s attorney could seek review of a new trial order only for the purpose of
certification:
[T]he rule which we here enunciate . is that a review will
lie, in proper cases, from the granting of a new trial in a
criminal case, but only for the purpose of certifying the law.
Obviously, once the law is so certified, it becomes the law of
**(...continued)
right to appeal a criminal conviction exists solely by virtue of statute [or a state’s
constitution].” 4 Am.Jur.2d, Appellate Review § 222.
23Commonwealth
v. Littrell, supra note 21 at 866:
With trials becoming ever longer and ever more expensive,
it equally incumbent uoon the prosecutina officers of the
Commonwealth in proper cases to try to prevent lona and
expensive delavs in final dispositions of criminal cases
because of erroneous granting of new trials. The public has
a large stake in the fair and impartial administration of our
criminal justice system and a timelv appeal from an abused
discretion may be the onlv remedy available to them.
(emphasis added). The wisdom of allowing the Commonwealth to appeal from
interlocutory orders has been recognized in this jurisdiction for more than a century.
See Commonwealth v. Matthews, Ky., 89 Ky. 287, 12 S.W. 333, 333-334 (1889):
If a defendant be tried and acquitted, he cannot, of course,
be again tried, although his release may free a guilty man,
and be the result of erroneous decisions of legal questions
by the trial court. The injury to the state and the public is
then beyond cure as to that particular case. Owing to this
fact, doubtless, the legislature saw proper to give to the
commonwealth the right to an appeal from a decision of the
trial court, although not final in character. It gives no
advantage to the state over the accused. He is amply
protected, as we have already seen, by the right to appeal
from a final judgment. It is, indeed, only fair to the public,
and proper for its protection, because otherwise the guilty
might escape by an acquittal resulting from legal errors. .
The legislature doubtless supposed, and with reason, that
the same questions would arise upon a future trial, and that
it was necessary to a fair administration of justice to allow
the state to at once correct any error by an appeal.
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the Commonwealth and, in particular, the law of the case
being reviewed.24
However, in an attempt to fashion a procedure affording the Commonwealth complete
relief - ’I.e., reinstatement of the jury’s verdict - the Littrell Court suggested a
procedural step for Commonwealth’s Attorneys to follow in future cases25 where an
appellate court determines that the trial court abused its discretion in granting a new
trial:
[I]t then becomes incumbent on the Commonwealth’s
Attorney, in the trial court, to make such motions and take
such steps as are necessary to bring the matter to the trial
court’s attention for proper reconsideration.26
We do not believe that this procedure is necessary, and we overrule Littrell to the extent
it limits the Commonwealth’s appeal of a new trial order to a certification of the law.
24Commonwealth
v. Littrell, supra note 21 at 885.
25This was the second appeal in Littrell. In the first appeal, the Court of Appeals
in a “Not To Be Published” opinion set aside the trial court’s order granting a new trial
and directed the trial court to proceed with the sentencing hearing. This Court granted
discretionary review and in a “Not To Be Published” opinion reversed the Court of
Appeals’ decision stating, “[tlhere is no appeal from an interlocutory decree granting a
new trial, thus the Court of Appeals did not have jurisdiction.” The case was then
remanded to the trial court for the previously granted new trial. “A new trial was held
and the newly discovered evidence to which the Commonwealth had objected and upon
which its appeal to the Court of Appeals had been predicated was admitted in evidence
and a verdict of acquittal followed. [Littrell’s] acquittal, however jaded the evidence or
the procedure, serve[d] as a complete and final bar as to any further proceeding against
him.” Id. at 882-883. For this reason, the procedure suggested by the Court in Littrell
was of no benefit to the Commonwealth in that case.
‘“ld. at 886. This procedural step was properly attributed to a subtle suggestion
in Commonwealth v. Wilson, 215 Ky. 743, 286 S.W. 1065, 1066 (1926) (“Although we
may not reverse the ruling of the lower court granting the new trial, since it is not a final
order, yet we may declare the foregoing to be a correct exposition of the law, which
should be binding on the circuit court on the proper steps being taken by the
commonwealth to secure that end.” (citation omitted)).
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KRS 22A.O20(4)‘s
immediate statutory predecessor, KRS 21.140, was originally
enacted in 1962 upon the repeal of the Code of Practice in Criminal Cases.27 In 1974,
the General Assembly amended KRS 21 .140,28 and, until its repeal in 1976,*’ that
provision read as follows:
(3)
(4)
An appeal may be taken to the Court of Appeals by
the state from an adverse decision or ruling of the
circuit judge and such an appeal shall not suspend
the proceedings in the case. An appeal by the state
shall be taken in the manner provided by the Rules of
Criminal Procedure, except that the record on appeal
shall be transmitted by the clerk of the circuit court to
the Attorney General. If the Attorney General is
satisfied, after inspecting the record, that error has
been committed to the prejudice of the state, upon
which it is important to the correct and uniform
administration of the law that the Court of Appeals
should decide, he may deliver the record to the Clerk
of the Court of Appeals within the time prescribed by
the Rules of Criminal Procedure.
When an appeal is taken pursuant to subsection (3),
the Court of Appeals, if the record so warrants. mav
reverse the decision of the circuit court and order a
new trial in any case in which a new trial would not
constitute double jeopardy or otherwise violate any
constitutional rights of the defendant.30
27KRS 21 .I40 was first enacted in 1962 upon the repeal of the Criminal Code
and the simultaneous adoption of the Kentucky Rules of Criminal Procedure and
subsection (3) provided: “An appeal may be taken to the Court of Appeals by the
Commonwealth from an adverse decision or ruling of the circuit judge and such an
appeal shall not suspend the proceedings in the case.” 1962 Ky. Acts, ch. 234, §§ 1,
61(2), 63. The statute was amended in 1964 but only to add language, which is almost
identical to the language used now in KRS 22A.O20(4)(b),
regarding the approval of the
Attorney General for an appeal by the Commonwealth. 1964 Ky. Acts, ch. 72, § l(3).
*’ 1974 Ky. Acts, ch. 406, § 297(4).
*‘KRS 21.140, in its entirety, was repealed as part of the legislative package
enacted to implement the Judicial Amendment. 1976 Ky. Acts ch. 67 @ 14, 15.
3o1974 Ky. Acts, ch. 406, § 297(3)&(4) (emphasis added).
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KRS 22A.020(4) is therefore almost identical to subsections (3) and (4) of KRS 21.140.
Our predecessor Court twice interpreted the provisions of KRS 21.140 to authorize the
Commonwealth to bring an interlocutory appeal from a trial court’s ruling not merely for
certification of the law, but to obtain relief from the ruling.
In Commonwealth v. Devine,31 the trial court granted the defendant a directed
verdict based on the insufficiency of the evidence, and the Commonwealth appealed.
This Court’s predecessor construed KRS 21.140(3) and held:
KRS 21.140(3), which provides that the
Commonwealth may in criminal cases appeal to this court
from adverse rulings and decisions of circuit courts, was
enacted incident to adoption of the Rules of Criminal
Procedure, effective January 1, 1963. It replaces the
substantive law formerly contained in Crim.Code 55 335,
347, and 352. As pointed out in the introductory General
Comment to Section XII (Appeals) of the Rules of Criminal
Procedure, in the separation and rearrangement of
substantive and procedural matters as between the statutes
and the rules, provisions regarded as attempts to define
double jeopardy were eliminated. As we understand it,
therefore, KRS 21.140(3) was intended to allow the
Commonwealth an appeal not only for a certification of the
law, but also for a reversal in any case in which a new trial
would not constitute double jeopardy.“’
As such, the Court clearly expressed its opinion that the legislature had - even before
the 1974 Amendments - authorized the Court of Appeals to grant the Commonwealth
substantive relief upon appeal.33
31Ky., 396 S.W.2d 60 (1965)
321d. at 61.
33We note that, under the prior Code, the Commonwealth could obtain reversal
of even a jury’s not guilty verdict in a misdemeanor case punishable only by a fine.
Code of Practice in Criminal Cases, supra note 17 at § 352; Commonwealth v.
Williams, 230 Ky. 71, 18 S.W.2d 881, 882 (1929) (“In misdemeanor cases punishable
by fine alone the commonwealth may appeal from a judgment of acquittal, and, upon
(continued...)
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In Commonwealth v. Lewis,34 the Court again addressed the Commonwealth’s
right of appeal under KRS 21.140. In Lewis, the defendants successfully moved the
trial court to dismiss a felony theft indictment on the grounds that the property had
actually been stolen in Virginia instead of Kentucky. The Commonwealth appealed and
the Supreme Court, after determining that double jeopardy would not prevent a retrial,
indicated that the 1974 amendment to KRS 21 .I40 - which added the provision
specifically authorizing the Court of Appeals to reverse the circuit court- was
“immaterial,” reiterated its prior holding in Devine, and reversed the dismissal:
Whether KRS 21.140(3) as it existed before amendment
by the 1974 General Assembly governs the
Commonwealth’s right of appeal in this case is immaterial. It
was held in Commonwealth v. Devine, Ky., 396 S.W.2d 60,
61 (1965) that “KRS 21.140(3) was intended to allow the
Commonwealth an appeal not only for a certification of the
law, but also for a reversal in any case in which a new trial
would not constitute double jeopardy.”
The judgment is reversed for further proceedings
consistent with this opinion.35
After reviewing Devine and Lewis, we conclude that, like its statutory
predecessor, KRS 22A.020(4) authorizes the Court of Appeals to grant the
Commonwealth substantive relief. In the case sub judice, KRS 22A.020(4) authorizes
the Court of Appeals to reverse the trial court’s new trial order and reinstate the
judgment entered on the jury’s verdict if the Court of Appeals determines that the trial
court abused its discretion in ordering a new trial.
reversal thereof, have a new trial notwithstanding the former verdict and judgment of
acquittal.“).
34Ky., 548 S.W.2d 509 (1977).
351d. at 510.
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We assume that the holdings of Devine and Lewis were not brought to the
attention of the Littrell Court since the opinion mentions neither case. While KRS
22A.020(4) was set forth in the opinion, the Court did not discuss subsection (c) or
otherwise suggest why that subsection did not authorize the intermediate appellate
court to reverse a new trial order and reinstate a trial verdict. All of the cases relied
upon by the Littrell Court in support of its holding were decided prior to the 1962
enactment of KRS 21 .140(3)36 - which this Court previously held in Devine and Lewis
was intended to allow the Commonwealth to appeal for a reversal of a trial court’s
adverse ruling.
As Justice Palmore recognized in Devine, and repeated in Lewis, KRS
21.140(3), “was intended to allow the Commonwealth an appeal not only for a
certification of the law, but also for a reversal in any case in which a new trial would not
constitute double jeopardy.“37
The 1974 amendment to KRS 21.140(3) and the
subsequent enactment of KRS 22A.020(4) removed any potential uncertainty by clearly
authorizing an appeal by the Commonwealth to the Court of Appeals for the purpose of
seeking a reversal of a trial court’s “decision or ruling” unless such a reversal would
“constitute double jeopardy or otherwise violate any constitutional rights of the
defendant.“38
As the relief requested by the Commonwealth would not implicate the
constitutional protections against double jeopardy because the Commonwealth seeks
reinstafement of the jury’s verdict, we hold that the appellate procedure provided by
36The Court did cite Eaton v. Commonwealth,Ky., 562 S.W.2d 637 (1978), a post
KRS 21.140(3) case, but only as support for the importance of an appeal from an
erroneously grant of a new trial. Commonwealth v. Littrell, supra note 21 at 886.
37Supra note 34.
38KRS 22A.O20(4)(c).
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KRS 22A.020(4) does not contemplate merely certification of the law, but rather
authorizes the Court of Appeals to grant substantive relief.
It has been suggested that an original proceeding seeking extraordinary relief in
the nature of a writ of prohibition or mandamus would be a more satisfactory method of
handling the appeal of an interlocutory order by the Commonwealth.3g We respectfully
disagree for several reasons. First, regardless of any policy arguments to the contrary,
the General Assembly has expressly authorized the appeal of such matters to the Court
of Appeals subject to certain restrictions set forth in the statute.40 Thus, the
Commonwealth has an adequate remedy by appeal from an order granting a new trial,
and extraordinary relief would not be appropriate. Second, in contrast to the record
available for review on appeal, the record available to appellate courts in original
actions is typically extremely abbreviated and often does not provide the information
necessary for a thorough review of the issues presented. Finally, the briefing time for
an original action is by necessity shorter than that provided for an appeal,41 and this
may lead to a less than complete discussion of the dispositive issues in the case. For
these reasons, in the context of an appeal from an order granting a new trial, we find
3gCommonwealth
v. Evans, Ky.App., 645 S.W.2d 350, 353 (1982) (Wilhoit, J.,
concurring in part and dissenting in part) (“I believe, however, that a proceeding in the
nature of prohibition would be a more satisfactory method of handling this kind of
situation.“).
40KRS 22A.O20(4)(a)
case.“); KRS 22A.O20(4)(b).
4’CR 76.36(2)
petition).
(“Such appeal shall not suspend the proceedings in the
(allowing Respondent ten (10) days to file a response to the
-16-
the KRS 22A.020(4) appellate procedure preferrable to the extraordinary relief available
only through a proceeding for a writ.42
IV. APPELLATE REVIEW OF KRS 22A.020(4) APPEALS
A. THE PROPER COURT
We observe that the prior version of CR 76.37 in effect at the time Littrell was
appealed43 did not provide for a request for certification of the law by the
Commonwealth.44
This may explain why the Littrell Court enunciated a rule that
allowed an appeal to the Court of Appeals for the purpose of certifvinq the law
regardless of whether the appeal was from a judgment of acquittal or a trial court’s
42We recognize, however, that because a KRS 22A.020(4) appeal will not stay
trial court proceedings after jeopardy attaches, see Part IV(B), infra, the Commonwealth
may need to seek extraordinary relief from some trial court rulings.
43While Littrell was rendered on October 4, 1984, the case number, 83-SC-95
TRG, assigned by the Supreme Court Clerk’s Office shows that the appeal was filed in
1983 and, consequently, before the effective date of CR 76.37(10).
44Before the 1983 amendment, effective January 1, 1984, CR 76.37 provided in
pertinent part:
(1) Power to answer.
If there are involved in any proceeding before the
Supreme Court of the United States, any Court of Appeals of
the United States, any District Court of the United States,
the highest appellate court of any other state, or the District
of Columbia, questions of law of this state which may be
determinative of the cause then pending before the
originating court and as to which it appears to the party or
the originating court that there is no controlling precedent in
the decisions of the Supreme Court and the Court of
Appeals of this state, the Kentucky Supreme Court may
answer those questions of law when certified to it by the
originating court, or after judgment in the District Court upon
petition of any party to the proceeding.
The Commonwealth was not authorized by rule to request certification until after the
amendment. Thompson v. Commonwealth, Ky., 652 S.W.2d 78 (1983).
-17-
ruling or decision. CR 76.37, however, was amended, effective January 1, 1984, to
allow the Commonwealth, pursuant to Section 115 of the Kentucky Constitution, to
initiate a request for a certification of the law “in the Supreme C~urt,“~~ but only after “a
judgment of acquittal.“46
Accordingly, a request by the Commonwealth for a certification
of the law after a judgment of acquittal in circuit or district court will be filed with, and if
granted, would proceed in, this Court4’ With the exception of appeals from circuit court
rulings directly affecting the imposition of the death penalty in capital cases - which
45After amendment, CR 76.37 provided additionally:
(10) Certification of law bv the Commonwealth.
A request by the Commonwealth of Kentucky pursuant to
Section 115 of the Constitution of Kentucky for a certification
of law shall be initiated in the Supreme Court. ([Almended
July 8, effective January 1, 1984).
46Commonwealth
v. Howard, Ky. App., 665 S.W.2d 320, 323 (1984) ( “We
construe the appellee’s argument to be off-base because a certification of law, while
reserved by the Supreme Court under the Thompson decision to be ab initio, its own
jurisdiction, it is nevertheless only appropriate where a final judgment has been
rendered.“).
47CR 76.37( 10) now reads as follows:
(10) Certification of law by the Commonwealth.
A request by the Commonwealth of Kentucky pursuant to
Section 115 of the Constitution of Kentucky for a certification
of law shall be initiated in the Supreme Court. The request
shall be initiated within thirty (30) days of a final order
adverse to the Commonwealth. The Commonwealth shall
initiate the certification procedure by motion requesting the
Supreme Court to accept the question(s) for review. The
motion shall contain the same elements as provided in this
Rule, section (3), for a certification order. The motion shall
be served and response permitted in conformity with the
rules applicable to motion practice in the Supreme Court. If
the motion is sustained, thereafter the case shall proceed in
the same manner as any other appeal.
-18-
are reviewed in this Court as a matter of policy48 - appeals by the Commonwealth
pursuant to KRS 22A.020(4) should be brought in the Court of Appeals.4g
B. STAY OF TRIAL COURT PROCEEDINGS
Generally, an appeal divests the trial court of jurisdiction to proceed further in the
underlying case.5o An interlocutory appeal, however, generally only deprives the trial
court of the authority to act further in the matter that is subject of the appeal, and the
trial court is not divested of the authority to act in matters unrelated to the appeal.5’
Notably, KRS 22A.020(4) expressly provides that an appeal pursuant thereto ‘shall not
suspend the proceedings in the case.“52 Does this then mean that the trial court may
proceed with the new trial during the appeal? We think not.
48a Commonwealth v. Rvan, Ky., 5 S.W.3d 113, 115 (1999); Skaggs v.
Commonwealth, Ky, 803 S.W.2d 573 (1990).
4gCommonwealth
v. Howard, supra note 46.
“Commonwealth v. Blincoe, Ky.App., 33 S.W.3d 533, 535 (2000) (“The general
rule is that the taking of an appeal divests the trial court of jurisdiction to proceed
further.“); Commonwealth v. Hayes, Ky., 734 S.W.2d 467 (1987); Leslie Abramson, 9
Kentucky Practice, Criminal Practice and Procedure (3rd ed.) § 32.60 (West Group
1997) (“A trial court has no jurisdiction over matters that have been appealed until the
finality date of the appellate decision”); 5 Am.Jur.2d, Appellate Review § 422 (“The
general rule that the taking of an appeal divests the trial court of jurisdiction to proceed
further in the case applies to criminal cases.“).
5’Garnett v. Oliver, 242 Ky. 25, 45 S.W.2d 815, 816 (1931) (lilt is settled that if
the appeal from the particular order or judgment does not bring the entire cause into the
appellate court, but only sufficient of the record to present the issue as to the propriety
of the particular order or judgment, further proceedings in the conduct of the cause may
properly be had in the lower court. . . [T]he case is often regarded as pending in the
court of original jurisdiction for the purposes of proceedings . . . .I’ (citations omitted)); 5
Am.Jur.2d, Appellate Review $j 432 (“The taking of an interlocutory appeal generally
deprives the trial court of the authority to act regarding the matter that is the subject of
the appeal. The court is not, however, barred from acting in matters unrelated to the
appeal.“).
52KRS 22A.O20(4)(a).
-19-
The proceedings referred to in KRS 22A.O20(4)(a) are “proceedings after the
attachment of jeopardy.“53
Consequently, once the proceedings commence and
jeopardy attaches, the proceedings will not be suspended while the Commonwealth
seeks review of rulings made during the course of the trial.
Staying the trial or retrial
while pre-trial and post-trial rulings and decisions of the circuit court are reviewed on
appeal, however, will not run afoul of KRS 22A.O20(4)(a).
Thus, once a verdict is
received by the trial court, the proceedings referred to in the statute have ended, and
an appeal by the Commonwealth from a new trial order will stay the order. The new trial
will not commence until a final appellate decision is rendered thereon; otherwise, the
appeal may become moot before a decision is rendered in the appeal because, if the
new trial results in an acquittal, any further prosecution against the defendant is barred
by the doctrine of double jeopardy.54
V. CONCLUSION
In summary, KRS 22A.020(4) authorizes an appeal by the Commonwealth to the
Court of Appeals from a circuit court order granting a new trial to a defendant, and the
appeal suspends the effect of the order pending the finality of such review. If the Court
of Appeals concludes from a review of the record55 that the trial court abused its
53Eaton v. Commonwealth, supra note 36 at 639 (“[Tlhis court construes the term
‘proceedings’ as used in KRS 422,020(4)(a) as referring to proceedings after the
attachment of jeopardy.“).
541f a new trial results in an acquittal, any further prosecution against the
defendant would be barred by the doctrine of double jeopardy. KY. CONST. § 13 (“No
person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall
any man’s property be taken or applied to public use without the consent of his
representatives, and without just compensation being previously made to him.“); KRS
505.030(l)(a).
55See Jackson v. Commonwealth, supra note 6 at 838.
-2o-
discretion in granting a new trial, the order will be reversed and set aside, and the trial
court will be directed to reinstate the verdict or judgment and sentence the defendant.
We therefore remand this matter to the Court of Appeals for it to consider the merits of
the Commonwealth’s appeal.
Lambert, C. J.; Cooper, Graves, Johnstone and Wintersheimer, JJ., concur.
Stumbo, J., dissents.
COUNSEL FOR APPELLANT:
A. 6. Chandler, III
Attorney General
Dennis W. Shepherd
Office of Attorney General
Criminal Appellant Division
1024 Capital Center Drive
Frankfort, Kentucky 40601
Jay A. Wethington
613 Frederica Street
Owensboro, Kentucky 42301
COUNSEL FOR APPELLEE:
Ben S. Fletcher, Ill
Fletcher, Cotthoff & Willen
700 South Main Street
PO Box 1107
Hopkinsville, Kentucky 42241-1107
-21-
I
’
RENDERED: MARCH 21,2002
TO BE PUBLISHED
1999-SC-1004-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM THE CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M. WHITE, JUDGE
98-CR-165
V.
APPELLEE
JAMES BAILEY
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent. I disagree with the majority’s holding that the
Commonwealth is not limited to seeking certification of the law when a trial court grants
a motion for a new trial.
This Court has held that the Commonwealth may seek review from a trial court’s
granting of a new trial in a criminal case, but only for the purpose of certifying the law.
Commonwealth v. Littrell, Ky., 677 S.W.2d 881, 885 (1984). When that rule is applied
to the present case, it is clear that the Commonwealth was not attempting to have any
issue of law certified by the Court of Appeals. The Court of Appeals recognized this
and applied the proper rule that was handed down by this Court approximately 18 years
ago. However, the Court today has seen fit to overrule Littrell at least with respect to
limiting the Commonwealth’s ability to appeal new trial orders to a certification of the
law. In support of this holding, the majority relies on Commonwealth v. Devine, Ky.,
396 S.W.2d 60 (1965) and Commonwealth v. Lewis, Ky., 548 S.W.2d 509 (1977).
Those cases, however, can be distinguished from Littrell and the present case.
I
n
Devine, the Commonwealth was seeking a new trial as a result of the trial court’s grant
of a directed verdict in favor of the defendant. In Lewis, the Commonwealth was
seeking a new trial as a result of the trial court’s dismissal of a felony theft indictment.
In both Littrell and the present case, the Commonwealth is seeking to reverse the trial
court’s grant of a new trial. The majority rely on the language in Devine that provides
that the Commonwealth is allowed “an appeal not only for a certification of the law, but
also for a reversal in any case in which a new trial would not constitute double
jeopardy.” Devine, 396 S.W.2d at 61. The majority’s reliance on Devine and Lewis is
not persuasive. Here the Commonwealth is not seeking a new trial, rather it seeks to
prevent a new trial from occurring. Devine provides for appeal by the Commonwealth
on certification of the law or a reversal in which a new trial would not put the defendant
twice in jeopardy. This is a significant factual difference given the Commonwealth on
the one hand wants a new trial when it does not get a ruling in its favor as opposed to
when it does get one. I would not construe Devine and Lewis to have any significant
impact on Littrell or the present case. The majority assumes that the holding of Devine
and Lewis were never brought to the attention of the Littrell Court given neither case is
mentioned in the opinion. I find it more plausible that Devine and Lewis were not
mentioned in the Littrell opinion because the Court found them to be of no
consequence to that case. Littrell is specific in its rule that the Commonwealth may
only appeal the granting of a new trial in a criminal case for the sole purpose of
certifying the law. Devine and Lewis do not concern a court granting a new trial, and
are not controlling over either Littrell or the present case.
-2-
The majority also holds that the Court of Appeals can uphold the jury’s verdict if it
is determined that the trial court abused its discretion in ordering a new trial.
Overturning the Littrell decision is not needed in order to allow an appeal for a trial
court’s grant of a new trial, if it is based on the trial judge’s abuse of discretion. “Only
what appears to be a clear abuse of that discretion should be approved for appellate
t i s S.W.2d
n
review by the Attorney General.” ILittrell, 677 e v i dat e886. t
t h a t
t h e
Commonwealth may still bring an appeal for the granting of a new trial if there is clear
abuse of discretion by the trial court.
In addition, the majority’s holding will be detrimental to the authority of trial courts
throughout the Commonwealth. As it is mentioned in Littrell, the “granting of a new trial
largely rests within the sound discretion of the trial judge.” Littrell, 677 S.W.2d at 886.
No one is better equipped to determine what has and has not occurred properly during
trial than the trial judge herself. I fear the majority has struck a blow to the province of
the trial court. If the Commonwealth is able to appeal anytime it receives an
unfavorable ruling for any reason, then the Commonwealth will always appeal. In the
present case, the trial court below expressed concern that the jury’s verdict of guilty
had been wrongfully influenced by irrelevant testimony regarding other office practices
in the county clerk’s office. If the trial court was concerned that any granting of a new
trial it might make would always be appealed by the Commonwealth, then the trial court
might be hesitant to grant a motion for a new trial when it would in fact be proper. Also,
the possibility of continuous appeals by the Commonwealth will do nothing more than
cause further delay in our already over-crowded judicial system.
I see no reason to overturn Littrell. The majority today has simply made it easier
for the Commonwealth to appeal anytime it receives an unfavorable decision. Trial
-3-
judges will also suffer from the majority’s holding in that they will lose much-needed
judicial discretion out of concern of having their decisions reversed by a higher court.
For all of the above reasons, I would affirm the decision of the Court of Appeals and
uphold the trial court’s grant of a new trial.
-4-
1999-SC-1004-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM THE CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M. WHITE, JUDGE
98-CR-165
V.
JAMES BAILEY
APPELLEE
ORDER
The Opinion of the Court By Justice Keller, rendered March 21, 2002, shall be
amended on page 4, footnote number 3, and on page 15, footnote number 36, as
attached hereto. Said modification does not affect the holding.
ENTERED: April 29 (2002.
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