ROBERT MARTIN v. COMMONWEALTH OF KENTUCKY

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RENDERED: August 2, 1996; 2:00 p.m. NOT TO BE PUBLISHED NO. 95-CA-0819-MR ROBERT MARTIN APPELLANT APPEAL FROM LAUREL CIRCUIT COURT HONORABLE RODERICK MESSER, JUDGE ACTION NO. 94-CR-083 v. COMMONWEALTH OF KENTUCKY APPELLEE OPINION REVERSING AND REMANDING * * * * * * * BEFORE: DYCHE, JOHNSON and KNOPF, Judges. KNOPF, JUDGE: This is an appeal of a conviction in Laurel Circuit Court for driving under the influence, fourth offense, pursuant to KRS 189A.010. Based upon recent decisions by the Supreme Court of Kentucky, we reverse and remand for a new trial. The appellant, Robert Martin, was indicted on the charge of driving under the influence (DUI), fourth offense. Prior to trial, the appellant moved to exclude any reference to his prior convictions during the Commonwealth's case-in-chief. The trial court overruled the motion. Following a jury trial, the appellant was convicted on the charge. This appeal follows. The Supreme Court of Kentucky recently addressed this issue in three (3) cases: Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996); O'Bryan v. Commonwealth, Ky., 920 S.W.2d 529 (1996); and Dedic v. Commonwealth, Ky., 920 S.W.2d 878 (1996). The Supreme Court noted that the elements for the offense of driving under the influence are wholly contained in KRS 189A.010(1). On the other hand, the penalties are deliniated in subsection (4), with the severity of punishment increasing with the number of prior violations of subsection (1). Ramsey, 920 S.W.2d at 528. The Supreme Court held that evidence of prior convictions are not essential to the Commonwealth's case-in-chief in the prosecution of a DUI charge and introduction of the prior convictions is unduely prejudicial to the defendant. Consequently, the prior DUI convictions shall not be introduced during the guilt phase of a DUI trial, but are only admissible during the penalty phase. Id. at 529. As a result of these decisions, the appellant's conviction for DUI, fourth offense, must be reversed and remanded for a new trial. At a subsequent trial of this action, if the jury reaches a guilty verdict, the circuit court has authority to conduct a penalty phase pursuant to KRS 532.055, in which the prior convictions may be introduced and the appropriate sentence determined, following proper instructions to the jury. Id. at 528. Accordingly, the conviction for driving under the influence, fourth offense, is reversed, and this action is remanded for a new trial. -2- ALL CONCUR. -3- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: David S. Hoskins Higgason & Hoskins Corbin, Ky. Chris Gorman Attorney General Vickie L. Wise Assistant Attorney General Frankfort, Ky. -4-

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