COMMONWEALTH OF KENTUCKY AND JAMES SHAKE, JUDGE JEFFERSON CIRCUIT COURT V. STEPHEN STEPHENSON
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RENDERED: AUGUST 22,2002
TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
AND
JAMES SHAKE, JUDGE
JEFFERSON CIRCUIT COURT
V.
APPELLANT
APPEAL FROM THE COURT OF APPEALS
2001 -CA-061 2-OA
JEFFERSON CIRCUIT COURT NO. 99-CR-02175
APPELLEE
STEPHEN STEPHENSON
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REMANDING
I. INTRODUCTION
In September of 1999, the Jefferson County Grand Jury returned an indictment
against Appellee, Stephen Stephenson (hereinafter “Stephenson”), charging him with
three (3) offenses: (1) First Degree Fleeing or Evading Police’ (a Class D felony); (2)
Fourth Offense Operating A Motor Vehicle Under the Influence of Intoxicants
2
(hereinafter “Fourth Offense DUI”) (a Class D felony); and (3) First-Offense Operating a
Motor Vehicle While License is Revoked or Suspended for Driving Under the Influence
‘KRS 520.095.
*KRS 189A.010.
(a Class B misdemeanor).3 Stephenson brought an original proceeding in the Court of
Appeals under CR 76.36 seeking a writ prohibiting “the Honorable James Shake, Judge
and the Commonwealth of Kentucky from proceeding with any further prosecution of
the Petitioner for the [indicted] charges . . . .‘I In May 2001, the Court of Appeals
entered an order granting Stephenson partial relief and prohibiting the trial court “from
trying [Stephenson] on the charge of Driving Under the Influence” but denying “relief as
it relates to the other charges pending against petitioner.” The Commonwealth
appealed to this Court. After a review of the briefs and the record before us, we
reverse the court below and remand this case to the Court of Appeals for entry of an
order denying Stephenson’s petition for a writ of prohibition.
II. FACTUAL AND PROCEDURAL BACKGROUND
The indictment against Stephenson arose from actions allegedly committed by
Stephenson on April 17, 1999. The pertinent facts as alleged by the Commonwealth are
that: (1) police observed Stephenson driving at a high rate of speed in Jefferson
County, Kentucky; (2) Stephenson refused to yield when the police engaged their lights
and siren and requested that he stop his vehicle; (3) Stephenson fled into Floyd
County, Indiana where Stephenson’s vehicle was stopped by a combination of New
Albany and Jefferson County police officers; and (4) Stephenson appeared to be under
the influence of alcohol - a suspicion confirmed by a preliminary breath test (PBT).
The New Albany officers arrested Stephenson and charged him with violations of
Indiana law. Because this case comes to us as an appeal from an original action in the
Court of Appeals, the nature of the charges brought against Stephenson by the State of
3KRS 189A.090.
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Indiana is not entirely clear.
In fact, the only “evidence” in the record before us
concerning Stephenson’s prosecution in Indiana is a document attached as an exhibit
to his petition in the Court of Appeals. The exhibit, titled “Plea Agreement,” reflects the
agreement reached between Stephenson and the State of Indiana in Floyd County
Court Cause No. 22501-9904-DF-533 regarding the terms of his guilty plea to the
charge of “Owl ‘D’ Felony.“4
The plea agreement, which was signed on April 23, 1999
by the prosecuting attorney, Stephenson’s counsel, and the Judge of the Floyd County
Court, reflects that:
/
Defendant to be assessed a fine of $ , p l u s C o u r t
costs of $125.00, IF THE OFFENSE INVOLVED THE USE
OF A MOTOR VEHICLE A .50 CHARGE WILL BE ADDED
TO THE COURT COSTS. Fine is due by -90 days -.
Defendant to be sentenced to -1095- days in the
days of said sentence to be
FCJIIDOC , -730
suspended, -[illegible, but strangely enough, not 365]- to
serve, with good time credit for - 6 - days already served.
IF PLEA IS TO DRIVING WHILE INTOXICATED OR
OPERATING AT A .lO, Defendant must pay $200.00 cash
into the Clerk of the Floyd County Court. Defendant to be
placed on probation for - 2 months/(year). With the
following terms and conditions: Defendant to serve 3 months
actual and 3 months inpatient treatment, to be monitored
through probation.
Other terms of probation indicated on the Plea Agreement were indicated by check
marks next to “Supervised;” ” Complete the Court’s Substance Abuse Program and pay
fee;” “Perform - 4 0 - hours of Community Service and pay fee;” “Good Behavior - no
criminal arrest.” The agreement also provided that “Dismiss Count II, Count III and
Count [illegible]. See Sister Mary for monitoring of Community Service, AA meetings
4We assume, on the basis of this limited record, that Stephenson was convicted
in Indiana of an earlier version of Operation of Vehicle While Intoxicated in violation of
IND. CODE ANN. § g-30-5-2 (2001) subject to the subsequent offense enhancement
provisions of an earlier version of IND. CODE ANN. 5 g-30-5-3 (2001).
-3-
and vocational guidance.5 State does not object to transfer of probation to Ky upon
proof of acceptance.” The plea agreement also provided that Stephenson’s license
was to be suspended for a period of two (2) years.
The parties agree that, pursuant to this plea agreement, Stephenson served
three (3) months in the Floyd County, Indiana jail and then three (3) more months in
inpatient treatment at the Talbott House in Louisville, Kentucky under the supervision of
Kentucky probation authorities.‘j The Kentucky Transportation Cabinet suspended
Stephenson’s Kentucky driver’s license in the wake of Stephenson’s Indiana drunk
driving conviction.
The Commonwealth of Kentucky also filed criminal charges - including a
charge of Driving Under the Influence in violation of KRS 189A.010 - against
Stephenson.
In August 1999, with the agreement of the prosecuting attorney from the
Office of the Jefferson County Attorney, the Jefferson District Court dismissed the
charges and noted on the docket sheet “Duplicate Charges Prosecuted in New Albany.”
The Office of the Jefferson County Commonwealth’s Attorney then sought a direct
indictment against Stephenson from the Jefferson County Grand Jury, and, in
September 1999, the grand jury returned the three (3) count indictment described
above.
Stephenson asked the Jefferson Circuit Court to dismiss the indictment on the
grounds that his prosecution in Jefferson County for the indicted charges was barred by
5However, a separately initialed and dated notation on the document reflects that
“All parties agree to waive reporting to Alternative Sentencing. AA & Corn. Serv. to be
monitored by probation.”
7t is not clear from the record before us whether Stephenson’s inpatient stay was
monitored by Probation and Parole employees working for the Kentucky Department of
Corrections.
-4-
principles of double jeopardy because: (1) the State of Indiana had previously
prosecuted him for the same conduct; (2) Kentucky had previously punished him for the
same conduct by assisting with the Indiana prosecution, supervising his probation, and
suspending his driving privileges, and (3) the Jefferson District Court’s dismissal of the
charges operated as a final adjudication that barred his subsequent indictment and
prosecution. The trial court denied Stephenson’s motion to dismiss, and Stephenson
sought relief in the Court of Appeals. On May 9, 2001, the Court of Appeals entered an
order granting Stephenson partial relief:
Having considered petitioner’s petition for writ of
prohibition, the response of the real party in interest, and
being otherwise sufficiently advised, this Court ORDERS
that this petition be, and it is hereby, GRANTED to the
extent that Respondent is PROHIBITED only from trying
appellant [sic] on the charge of Driving Under the Influence.
This Court DENIES relief as it relates to the other charges
pending against petitioner.
From this order, the Commonwealth appeals to this Court.
III. ANALYSIS
A. WRITS OF PROHIBITION
Extraordinary relief in the form of a writ of prohibition is normally available only
upon a showing that the petitioner has no adequate remedy by appeal and: (1) the
lower court is proceeding or about to proceed outside of its jurisdiction; or (2) the lower
court is about to act incorrectly, although within its jurisdiction, and great injustice and
irreparable injury will result from the trial court’s imminent erroneous actions.7
However,
in cases where the petitioner claims that the trial court is permitting a prosecution to
proceed that is barred by principles of double jeopardy, we have held that the court
7Kentucky
Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 251 (2001).
-5
considering the petition may, in its discretion, grant relief even though the defendant
may have an adequate remedy by appeal.’ Here, we perceive no abuse of discretion
by the Court of Appeals in its decision to review the merits of Stephenson’s petition.
However, upon our review of the questions of law’ relevant to this appeal - i.e.,
whether constitutional or statutory double jeopardy protections or principles of collateral
estoppel or res judicata prevent the Commonwealth from prosecuting Stephenson for
DUI, we find that the Court of Appeals erred when it granted Stephenson relief.
In
Parts III(B)-(D) below, we address Stephenson’s arguments to the Court of Appeals,
and conclude that none of his asserted bases support the relief granted.
B. FORMER INDIANA PROSECUTION
Stephenson argued to the Court of Appeals that the Commonwealth could not
prosecute him under the Jefferson County indictment because he has already been
convicted, and punished, for the same conduct by the State of Indiana. We consider
this argument in connection with the constitutional and statutory double jeopardy
protections, and conclude that Stephenson’s Indiana DUI conviction does not constitute
a double jeopardy bar to his prosecution in Kentucky because Stephenson’s initial
premise is incorrect -the Commonwealth does not seek to punish Stephenson for the
same conduct for which Indiana punished him.
Count Two of the indictment returned by the Jefferson County Grand Jury reads:
‘St. Clair v. Roark, Ky., 10 S.W.3d 482, 485 (2000) (“The court in which the
petition is filed may, in its discretion, address the merits of the issue within the context
of the petition for the writ, or may decline to do so on grounds that there is an adequate
remedy by appeal. Neither approach is mandatory . . . . ‘I).
9& Kentuckv Labor Cabinet v. Graham, supra note 7 at 251 (“As the issues on
this appeal are to be decided as a matter of law, our review of the Court of Appeals
decision is not confined to an abuse of discretion inquiry.“).
-6-
That on or about the 1 7th day of April, 1999, in Jefferson
County, Kentucky, the above named defendant, Stephen
Stephenson, committed the offense of Operating a Motor
Vehicle Under the Influence of Intoxicants Fourth Offense by
operating a motor vehicle in the Commonwealth of Kentucky
while
(a)
the alcohol concentration in his blood or breath is
0.10 or more based on the definition of alcohol
concentration in KRS 189A.005;
I
PbP
under the influence of alcohol;
EP
under the influence of any substance or combination
of substances which impairs one’s driving ability;
under the combined influence of alcohol and any
other substance which impairs one’s driving ability,
after having committed that offense three times within the
previous five years. (Emphasis added)
pdp
KRS 189A.010 states that “[a] person shall not operate or be in physical control of a
motor vehicle anywhere in this state”” while under the influence of alcohol and/or other
impairing substances as further defined in the statute. Thus, here, the Commonwealth
only seeks to prosecute Stephenson for his criminal conduct within the Commonwealth
of Kentucky.
In any event, however, the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution offers Stephenson no refuge. As the United States
Supreme Court held in Heath v. Alabama,” the United States Constitution does not
prohibit successive prosecutions for the same conduct by two (2) or more states or
jurisdictions because each jurisdiction, as an independent sovereign, has the power to
enforce its own criminal laws:
‘OKRS 189A.010(
1) (emphasis added).
“474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).
-7-
The dual sovereignty doctrine, as originally articulated and
consistently applied by this Court, compels the conclusion
that successive prosecutions by two States for the same
conduct are not barred by the Double Jeopardy Clause.
The dual sovereignty doctrine is founded on the commonlaw conception of crimes as an offense against the
sovereignty of the government. When a defendant in a
single act violates the “peace and dignity” of two sovereigns
by breaking the laws of each, he has committed two distinct
“offences.” As the Court explained in Moore v. Illinois, “[a]n
offence, in its legal signification, means the transgression of
a law.” Consequently, when the same act transgresses the
laws of two sovereigns, “it cannot be truly averred that the
offender has been twice punished for the same offense; but
only that by one act he has committed two offenses, for
each of which he is justly punishable.“”
The Commonwealth argues that Heath is dispositive of the issue at bar. We
agree with the Commonwealth to the extent that we find that the dual sovereignty
doctrine disposes of Stephenson’s constitutional double jeopardy claims involving his
former prosecution in Indiana. In order to fully address Stephenson’s double jeopardy
claim, however, we must consider Stephenson’s argument regarding the applicability of
Kentucky’s statutory double jeopardy protections. KRS 505.050, which suspends the
dual sovereignty doctrine as it relates to subsequent Kentucky prosecutions for a
certain class of offenses by applying Kentucky’s other statutory double jeopardy
provisions “to conduct that violates the criminal laws of two different jurisdictions, i.e.,
this state and the United States or this state and a sister state,“13 provides:
When conduct constitutes an offense within the concurrent
jurisdiction of this state and of the United States or another
state, a prosecution in such other jurisdiction is a bar to a
subsequent prosecution in this state under the following
circumstances:
“ld. at 474 U.S. 88, 88 L.Ed.2d 394.
13Kentucky
Penal Code Commentary to KRS 505.050 (Banks/Baldwin 1974).
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(1)
(2)
The former prosecution resulted in an acquittal, a
conviction which has not subsequently been set
aside, or a determination that there was insufficient
evidence to warrant a conviction, and the subsequent
prosecution is for an offense involving the same
conduct unless:
(a)
Each prosecution requires proof of a
fact not required in the other
prosecution; or
The offense involved in the subsequent
(b)
prosecution was not consummated
when the former prosecution began; or
The former prosecution was terminated in a final
order or judgment which has not subsequently been
set aside and which required a determination
inconsistent with any fact necessary to a conviction in
the subsequent prosecution.‘4
In Hash v. Commonwealth,15
the Court of Appeals addressed the applicability of
KRS 505.050 to a factually similar case where an intoxicated driver committed crimes in
both Kentucky and in Tennessee:
In the early morning hours of January 19, 1992, the
appellant, Charles Hash, was operating his vehicle
inappropriately in Knox County, Kentucky. Hash, who was
driving under the influence of alcohol, nearly struck two
Kentucky State Police vehicles and a chase ensued
southbound on l-75. After Hash entered Tennessee, he
continued to exhibit improper driving etiquette by operating
his vehicle in a southerly direction in the northbound lane of
l-75 at high rates of speed. Hash was ultimately
apprehended by Tennessee troopers and charged with
several crimes including the following: felony reckless
endangerment, driving under the influence, failure to yield to
emergency equipment, speeding (110 m.p.h. in a 65 m.p.h
zone), improper turn and driving on the wrong side of the
road. He pled guilty to the reckless endangerment and the
DUI charges, and received a sentence of 11 months, 29
days on each, to be served consecutively.
On June 12, 1992, Hash was indicted on several crimes
including two counts of wanton endangerment (KRS
lJKRS 505.050.
“Ky.App., 883 S.W.2d 892 (1994).
-9-
508.060), driving under the influence (KRS 189A.010),
reckless driving (KRS 189.290) and resisting arrest (KRS
530.090). All the charges were dismissed with the exception
of the two counts of wanton endangerment. Hash tried to
convince the trial court that the Commonwealth was barred
from prosecuting him on these two charges by the
protections offered under the constitutional prohibition
against double jeopardy. Being unsuccessful in this regard,
Hash entered a plea of guilty on November 19, 1992,
conditioned on his right to appeal the trial court’s denial of
his motion to dismiss. . . .
In his appeal Hash argues that his prosecution in Kentucky
for the same conduct for which he was convicted in
Tennessee violates KRS 505.050.‘6
The Court of Appeals concluded that KRS 505.050 “ha[d] no applicability to the instant
case”” because Kentucky had punished Hash for criminal conduct he committed within
the Commonwealth of Kentucky and Tennessee had punished Hash for criminal
conduct he committed in that jurisdiction:
[TJhere is no . . . evidence that Hash was prosecuted in
the state of Tennessee for his conduct in Kentucky; and if he
was, the Tennessee court lacked jurisdiction over the
offenses. See KRS 500.060. The two crimes of wanton
endangerment in Kentucky were completed in Kentucky
against two Kentucky victims before Hash ever entered
Tennessee.
161d. at 893. While Stephenson believes that Hash supports his double jeopardy
argument and emphasizes the fact that, in Hash, the Commonwealth dismissed the DUI
charge, we find no subtext in Hash suggesting that the prosecution was required to
dismiss the DUI charge. Simply put, we decline Stephenson’s invitation to assume that
“did not” equates with “could not.” Instead, we recognize that prosecutors have the
discretion to decide whether to proceed with the prosecution of a charge. In Hash, the
Commonweath may have chosen to forgo the DUI prosecution because of the length of
the sentence Hash received for his DUI in Tennessee, because it did not believe that it
could meet its burden of proof, or because of some other consideration. In any event,
we find such speculation without purpose because, regardless of the basis for the
prosecution’s decision in Hash, the dismissal was not required.
-lO-
As far as we can tell from the documents relied upon by
the appellant, he pled guilty to two crimes in Tennessee for
criminal conduct that took place solely in Tennessee.”
Similarly, in the case sub judice, Indiana has punished Stephenson for the crime
he committed by driving drunk within Indiana, and the Commonwealth seeks to punish
Stephenson for the criminal conduct he allegedly committed, and completed, in
Kentucky by driving under the influence in this jurisdiction. And, conceptually, this case
is no different than if Stephenson had stolen a car in Kentucky and driven that car to
Indiana, and committed a robbery in the State of Indiana. The fact that he committed
the same or a similar criminal offense in.both states during one trip behind the wheel is
inconsequential - Indiana did not seek to punish Stephenson for his criminal conduct
within the territorial jurisdiction of Kentucky and Kentucky does not seek to punish
Stephenson for his criminal conduct within the territorial jurisdiction of Indiana.
Accordingly, the indictment at issue does not involve conduct that “constitutes an
offense within the concurrent jurisdiction of this state and . . . another state.“‘g
“Concurrent jurisdiction” is “jjlurisdiction exercised simultaneously by more than one
court over the same subject matter and within the same territory. . . . ‘12’ For instance,
in Benton v. Crittenden,21
the investigating authorities alleged that the defendant forced
his way into the victims’ vehicle, forced the driver to drive the vehicle around Franklin
‘*m at 893-894.
19KRS 505.050.
20B~~~‘~ LAW DICTIONARY 885 (7’h ed. 1999) (emphasis added).
21Ky., 14 S.W.3d 1 (2000).
-II-
and Shelby Counties, and then shot and killed the driver.** For this same conduct all of which was committed in the Commonwealth of Kentucky, Benton was indicted by
a federal grand jury with “carjacking” under federal law, and, after he was acquitted in
federal court, indicted by a Franklin County Grand Jury for murder, kidnapping, and
robbery under Kentucky law.23 While the most common “concurrent jurisdiction”
situations involve conduct that constitutes a crime under both state and federal law e.g., controlled substances and firearms offenses - states may also, under some
circumstances, exercise concurrent jurisdiction over criminal conduct occurring outside
their borders in another state.24
The fact that Kentucky and Indiana both provide
criminal sanctions for those who drive drunk within their own state borders, however,
does not involve an issue of concurrent jurisdiction.
Thus, like the Court of Appeals
panel in Hash, we hold that “KRS 505.050 has [no] application in this case that we can
surmise.“25
As such, the fact of Stephenson’s former DUI prosecution in Indiana
provides no basis for the relief granted by the Court of Appeals.
C. FORMER “PUNISHMENT” BY THE COMMONWEALTH OF KENTUCKY
Stephenson also argued to the Court of Appeals that double jeopardy principles
prohibit his conviction for the indicted offenses because he has already been punished
for the same conduct by the Commonwealth of Kentucky through the Commonwealth’s
assistance to the Indiana authorities in their prosecution of him, supervision of his
probation, and suspension of his driving privileges. We find Stephenson’s contentions
221d. at 2.
231d.
24See KRS 500.060.
25Hash v. Commonwealth, supra note 15 at 894.
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in this regard wholly without merit.
Stephenson cites no authority, and we have found
none, to support his assertions that a police officer’s assistance to a sister state’s
prosecution and/or the Commonwealth’s agreement to supervise a sentence of
probation entered in another jurisdiction constitute punishment that would bar further
prosecution. Further, this Court has specifically rejected the argument that a driver’s
license suspension implicates double jeopardy.26
These allegations thus provide no
support for the relief granted by the Court of Appeals.
D. RES JUDICATA AND THE JEFFERSON DISTRICT COURT DISMISSAL
Stephenson argues that this Court should affirm the Court of Appeals because
the Jefferson District Court’s dismissal of the felony DUI charge acts as a bar to the
Commonwealth’s further prosecution. Stephenson observes that “[t]he Order from the
Court of Appeals partially granting the Writ of Prohibition did not indicate on what
grounds the Court was partially granting the writ,” and submits that the Court of Appeals
granted him partial relief because it found that the Jefferson District Court’s dismissal of
the charges against Stephenson had preclusive effect.
We find Stephenson’s effort to
cloak himself in the ambiguity created by the failure of the Court of Appeals to set forth
the grounds for its order disingenuous. We cannot imagine any rational basis upon
which the Court of Appeals could have concluded that the Jefferson District Court’s
dismissal barred the subsequent felony DUI prosecution, but not subsequent
prosecutions for the other charges dismissed by the Jefferson District Court.
we address Stephenson’s argument nevertheless and find it unpersuasive.
26Hourigan v. Commonwealth, Ky., 962 S.W.2d 860, 862-3 (1998).
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However,
KRS 505.030 outlines statutory double jeopardy protections “in the narrowest
sense, i.e., when a defendant is faced with two prosecutions involving only one criminal
statute and one set of facts.“27
In addition to outlining the fundamental double jeopardy
principles - e.g. that a subsequent prosecution is prohibited when a former
prosecution for the same conduct and offense resulted in a conviction or acquittal or an
“on the merits” determination that the evidence was insufficient to support a conviction
- KRS 505.030 provides:
When a prosecution is for a violation of the same statutory
provision and is based upon the same facts as a former
prosecution, it is barred by the former prosecution under the
following circumstances:
(3,’
The former prosecution was terminated by a final
order or judgment, which has not subsequently been
set aside, and which required a determination
inconsistent with any fact or legal proposition
necessary to a conviction in the subsequent
prosecution . . . .28
The Commentary to KRS 505.030 explains that the “or legal proposition” language in
subsection (3) includes a situation where a court dismisses a charge after finding that
the prosecution was barred by former jeopardy:
Subsection (3) prohibits a subsequent prosecution for the
same offense on the basis of the same facts if: the first
prosecution terminated with a final order or judgment; that
order or judgment, at the time of the second prosecution,
has not been set aside; and the order or judgment required
a determination of fact or law inconsistent with a subsequent
conviction for the same offense. At the outset, it should be
mentioned that this claim of former jeopardy . . . does not
require a presentation of evidence in the former prosecution
. . . [and] is not dependent upon an “attachment of
jeopardy.” The source of this subsection is the case of
27Kentucky
Penal Code Commentary to KRS 505.030 (Banks/Baldwin 1974).
**KRS 505.030.
-14-
United States v. Oppenheimer, 242 US 85, 37 SCt 68,
61 LEd 161 (1916). In that case, an initial indictment against
the defendant had been dismissed because of the statute of
limitations. He was subsequently reindicted for the same
offense. His defense was former jeopardy. The government
urged that his defense was nothing more than a claim of res
judicata which did not apply to criminal cases. The Supreme
Court rejected this position, ruled that the doctrine of res
judicata does apply to criminal cases, and held the former
prosecution a bar to the subsequent one. The matters
intended for coverage by this subsection were indicated in
the Model Penal Code:
Illustrative of the pre-trial determinations
which will bar a subsequent prosecution for the
same offense are: a determination that the
statute of limitations has run; a determination
that the defendant has been previously
convicted or acquitted of the offense; a
determination that the defendant has been
pardoned for the offense; and a determination
that the defendant has been granted immunity
by law from prosecution for the offense. Model
Penal Code § 1.09, Comment at 50 (Tent.
Draft No. 5, 1956) (citations omitted).2g
This Court has held that a final order dismissing a criminal charge or indictment
may bar subsequent prosecutions. In Commonwealth v. Hicks,30 the Kenton District
Court dismissed a misdemeanor DUI charge in an order that read, “[t]he
Commonwealth’s motion to continue is overruled and the defense motion to dismiss is
sustained.” The Commonwealth refiled the charges, and the defendant unsuccessfully
argued to the trial court that its former ruling barred the subsequent prosecution.
Hicks
sought a writ of prohibition from the Kenton Circuit Court, and this Court considered the
matter on discretionary review. We held that “a judgment or order of dismissal, except
on the grounds noted in the Rule [CR 41.02(3)], must be construed as being with
29Kentucky Penal Code Commentary to KRS 505.030 (Banks/Baldwin 1974)
(emphasis added).
30Ky., 869 S.W.2d 35, 38 (1994).
-15
prejudice unless it says otherwise”3’ and thus “results in an adjudication on the
merits.“32 Because the Commonwealth had not sought amendment of or appealed from
the order of dismissal, we held that the dismissal barred subsequent prosecution:
The order of dismissal contained no indication that it was
intended to be without prejudice. Forthrightly, it denied a
continuance and sustained the motion to dismiss. It said no
more. As such, the order of dismissal was with prejudice
and if the Commonwealth was to have relief, a timely
amendment of the order of dismissal or an appeal from that
order was required. Upon its failure to take steps to obtain
such relief, the order of dismissal became final and
subsequent litigation was thereby barred.33
In Commonwealth v. Taber,34 we applied our holding in Hicks and found that the Scott
Circuit Court’s previous order dismissing Taber’s nine-count indictment barred Taber’s
subsequent conviction under a new indictment for the same offenses.35
Here, the Jefferson District Court’s notation on the docket sheet and case jacket
read: “DM/SPC Duplicate Charges Prosecuted in New Albany.“36
The parties inform us
3’1d. at 38.
34Ky., 941 S.W.2d 463 (1997).
351d. at 464.
36We observe that the Jefferson Circuit Court found Hicks inapplicable because it
interpreted the Jefferson District Court’s notation as to the duplicate charges in New
Albany as an indication that “the dismissal in question was one for lack of jurisdiction”
and therefore not a final adjudication on the merits. See CR 41.02(3). While we find
this interpretation of the trial court’s dismissal plausible, we do not believe it resolves
the issues presented here. First, we find the notation at best ambiguous - particularly
in light of Stephenson’s articulation of the context in which the prosecution agreed to
recommend dismissal. Second, Hicks places the onus of ensuring that the dismissal
reflects its true nature on the “one who wishes to preserve the viability of a dismissed
claim.” Hicks v. Commonwealth, supra note 30 at 38.
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that, in the shorthand employed in the Jefferson District Court, “DM” indicates
“dismissed” - as distinguished from “DWOP,” which represents “dismissed without
prejudice” - and “SPC” signifies “stipulation of probable cause.” Although the Office of
the Jefferson County Attorney, after speaking with the police officer involved in the
case, did bring a timely motion to reinstate the charges, the Commonwealth eventually
withdrew this motion, and thereafter the Jefferson District Court’s disposition became
final. Stephenson thus argues that, in accordance with Hicks, his subsequent
indictment and prosecution in Jefferson Circuit Court were improper. We disagree and
find KRS 505.030 inapplicable.
KRS 505.060 provides:
A prosecution is not barred, as provided in KRS 505.030,
505.040 and 505.050 if the former prosecution:
i2)’
Was before a court which lacked jurisdiction over the
defendant or the offense.37
The distinguishing factor between Hicks and Taber and the case at bar is that, while the
Kenton District Court had the jurisdiction to dismiss finally a misdemeanor DUI charge
and the Scott Circuit Court had the jurisdiction to dismiss finally a felony indictment, the
Jefferson District Court did not have the jurisdiction to make a final adjudication as to
Stephenson’s felony3’
charges.
37KRS 505.060 (emphasis added).
38Although Stephenson currently stands indicted for First-Offense Operating a
Motor Vehicle While License is Revoked or Suspended for Driving Under the Influence
(a Class B misdemeanor), see KRS 189A.O90(2)(a),
the charge at the time the case
was before the Jefferson District Court was a Third-Offense, felony violation of the
same statute. See KRS 189A.O90(2)(c).
Thus, each of the three (3) offenses for
which Stephenson is currently indicted was originally charged as a felony offense in
Jefferson District Court.
-17-
The Judicial Article of the Kentucky Constitution states that “[tjhe district court
shall be a court of limited jurisdiction and shall exercise original jurisdiction as may be
provided by the General Assembly.“3g
Although the General Assembly has granted the
district courts limited jurisdiction in criminal matters,4o district courts cannot make final
dispositions as to felony offenses.41
Instead, jurisdiction for final adjudications in felony
39K~. CONST . § 113(6).
‘OKRS 24A. 110:
c-u
(2)
(3)
(4)
The District Court shall have exclusive jurisdiction to
make final disposition of all criminal matters, including
violations of county, urban-county, or city ordinances
or codes, except:
Offenses denominated by statute as
(a>
felonies or capital offenses; and
Offenses punishable by death or
03
imprisonment in the penitentiary.
The District Court has exclusive jurisdiction to make a
final disposition of any charge or a public offense
denominated as a misdemeanor or violation, except
where the charge is joined with an indictment for a
felony, and all violations of county, urban-county, or
city ordinances and, prior to trial, to commit the
defendant to jail or hold him to bail or other form of
pretrial release.
The District Court has, concurrent with Circuit Court,
jurisdiction to examine any charge of a public offense
denominated as a felony or capital offense or which
may be punished by death or imprisonment in the
penitentiary and to commit the defendant to jail or
hold him to bail or other form of pretrial release.
The District Court may, upon motion and for good
cause shown, reduce a charge of a felony to a
misdemeanor in accordance with the Rules of
Criminal Procedure.
(Emphasis added).
4’ld; Wauah v. Commonwealth, Ky.App., 605 S.W.2d 43, 45 (1980) (“KRS
24A.110 gives no jurisdiction for final disposition of felony cases to the district courts.
Such is reserved to the circuit courts.“).
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cases is reserved for the circuit courts, which, under the Kentucky Constitution “shall
have original jurisdiction of all justiciable causes not vested in some other co~t-t.“~~ This
Court has recognized that, when misdemeanor offenses are combined with felony
offenses, the circuit and district court’s respective jurisdictions as to the misdemeanor
offenses “are not set out with crystal clarity.“43
However, no such ambiguity exists
concerning district courts’ jurisdiction as to felony offenses because “[fjinal disposition
of felony cases is expressly excepted from district court jurisdiction.“44
While a district
court that finds good cause to amend a charge to a misdemeanor offense may exercise
jurisdiction to make a final adjudication as to that amended, misdemeanor offense,45
the
Jefferson District Court in this case made no such finding or disposition, and instead
merely dismissed the felony offenses. Instead, as to each of Stephenson’s felony
offenses, “the district court could act only as an examining co~r-t”~~ by conducting a
preliminary hearing to determine whether probable cause existed to detain the
defendant - and even if the district court found probable cause lacking, the
Commonwealth could still proceed with the prosecution by direct indictment.47
We find
42K~. CONST . § 112(5).
43Keller v. Commonwealth, Ky., 594 S.W.2d 589, 590 (1980).
44Commonwealth
v. Hamblem, Ky.App., 628 S.W.2d 345, 346 (1981). Cf.
Commonwealth v. Arnette, Ky., 701 S.W.2d 407, 408 (1985) (“Obviously the district
court has no trial jurisdiction over a felony offense.“).
45KRS 24A.110(4); Commonwealth v. Karnes, Ky., 657 S.W.2d 583 (1983);
Commonwealth v. Hamblem, supra note 44.
46Keller v. Commonwealth, supra note 43 at 592. See also KRS 24A.l lO(3); RCr
3.07; Wauah v. Commonwealth, supra note 41 at 45.
47See Kentucky Penal Code Commentary to KRS 505.030 (Banks/Baldwin 1974)
(“It should be mentioned that a dismissal of a charge in a preliminary hearing, although
(continued...)
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that the Jefferson District Court lacked the jurisdiction to finally adjudicate Stephenson’s
felony DUI offense, and the Jefferson District Court’s dismissal of that offense thus
provides no basis for the issuance of a writ prohibiting Stephenson’s prosecution for
felony DUI.
IV. CONCLUSION
For the above reasons, we reverse the court below and remand this matter to the
Court of Appeals for entry of an order denying Stephenson’s petition for a writ of
prohibition.
All concur.
“( . ..continued)
made after hearing evidence, cannot form the basis for a claim of former jeopardy.“);
Locke v. Commonwealth, Ky., 503 S.W.2d 729, 731 (1974) (“[A] detention hearing
which is a preliminary hearing in nature, at which the defendant’s liberty is not placed in
jeopardy, can not be asserted in a later proceeding as constituting former jeopardy.“).
-2o-
COUNSEL FOR REAL PARTY IN INTEREST:
A. B. Chandler, Ill
Attorney General
Claudia Ann Smith
514 West Liberty Street
Louisville, Kentucky 40202
APPELLANT:
Hon. James M. Shake, Judge
Jefferson Circuit Court
Hall of Justice
600 West Jefferson
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Kenneth J. Bader
544 Baxter Avenue, Suite 200
Loiusville, Kentucky 40204-I 154
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