RODNEY DANIEL v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 9, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1084-MR
RODNEY DANIEL
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE JAMES A. KNIGHT, SPECIAL JUDGE
ACTION NO. 93-CR-46
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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DYCHE, GUIDUGLI, and MILLER, Judges.
MILLER, JUDGE:
Rodney Daniel brings this appeal from an April 9,
1996, order of the Perry Circuit Court.
We affirm.
In January 1994, appellant entered a plea of guilty to
various criminal offenses and, subsequently, was placed upon
probation for same.
A stipulation of appellant's probation was
that he possess no firearms.
On October 30, 1995, appellant's
probation officer discovered several .22 caliber rifle slugs on
appellant's kitchen counter.
Thereafter, the probation officer
found a .22 caliber rifle under appellant's wife's bed.
On
December 20, 1995, a parole violation warrant was issued for
appellant.
1, 1996.
Notice of a preliminary hearing was filed on February
On March 13, 1996, the Commonwealth filed a motion to
revoke probation.
A revocation hearing was held on March 15,
1996, and an order of revocation was entered April 9, 1996.
This
appeal followed.
Appellant contends that the circuit court committed
reversible error by not dismissing the revocation proceedings
pursuant to Ky. Rev. Stat. (KRS) 533.040(3).
Specifically, he
contends that the proceedings should be dismissed as violative of
the ninety-day requirement set forth in that statute.
We believe
dispositive the case of Sutherland v. Commonwealth, Ky., 910
S.W.2d 235 (1995), wherein the Court ruled that the ninety-day
period specified in KRS 533.040(3) is not a statute of limitations for probation revocation.
Moreover, we are unable to
observe any resulting prejudice to appellant because of the delay
in the revocation hearing.
As such, we are of the opinion that
the circuit court did not commit reversible error by denying
appellant's motion to dismiss the revocation proceedings.
Appellant next asserts that the evidence was insufficient to support a revocation.
We disagree.
Appellant's proba-
tion officer testified that she observed .22 caliber rifle slugs
on appellant's kitchen counter and, subsequently, found a .22
caliber rifle in the residence.
She testified that appellant
told her exactly where the firearm was located.
-2-
Upon the forego-
ing, we think there exists substantive evidence upon which to
conclude that appellant was in possession of a firearm.
Finally, appellant maintains he was denied due process
of law inasmuch as the circuit court failed to make written
findings in its order revoking probation.
As appellant failed to
make a motion pursuant to Ky. R. Civ. P. 52.04, we believe the
court's failure to make written findings has been waived.
Ky. R.
Crim. P. 13.04; cf. Blankenship v. Commonwealth, Ky. App., 554
S.W.2d 898 (1977).
For the foregoing reasons, the order of the circuit
court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Paula Fitzgerald
Louisville, KY
A. B. Chandler III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, KY
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