DEWEY GODBY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 26, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
96-CA-2636-MR
DEWEY GODBY
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE RAYMOND E. LAPE, JR., JUDGE
ACTION NO. 93-CR-45
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * *
BEFORE:
JOHNSON, KNOPF, and MILLER, JUDGES.
KNOPF, JUDGE.
This is an appeal from a denial of a motion to
alter, amend, or vacate judgment of conviction pursuant to RCr
11.42 and CR 60.02.
Finding no error, we affirm.
Dewey Godby (Godby) was found guilty by a jury of
driving under the influence (DUI), fourth offense.
sentenced to five (5) years and fined $5,000.00.
filed an appeal with this Court.
Godby was
Godby timely
On June 23, 1994, Godby entered
a document into the record styled "Proposal for Probation Terms."
The proposal stated in part:
Should the Defendant's Motion be sustained,
this defendant is obviously willing to
dismiss the appeal pending in this matter.
On July 14, 1994, the trial court granted shock probation.
On
July 18, 1994, Godby and the Commonwealth filed a joint motion to
dismiss appeal, 94-CA-212-MR.
On September 21, 1994, this Court
granted the joint motion to dismiss.
arrested for DUI in Indiana.
On March 3, 1995, Godby was
On March 27, 1995, the Commonwealth
filed a motion to revoke Godby's probation.
was revoked on April 15, 1996.
Godby's probation
On January 26, 1996, Godby filed
a pro se motion with this Court styled "Motion of Appellant that
Court Permit Untimely Appeal."
On March 27, 1996, this Court
denied the motion for belated appeal.
The order stated in part:
[t]he Court ORDERS the motion be DENIED as
movant has waived his right to the appeal
when he voluntarily dismissed his appeal.
On August, 27, 1996, Godby filed a RCr 11.42 and CR 60.02 motion
to set aside or correct judgment.
motion on September 10, 1996.
The trial court denied the
This appeal followed.
On appeal, Godby argues three (3) issues: 1) the trial
court abused its discretion and committed prejudicial error by
introduction of previous convictions during the guilt phase; 2)
the Commonwealth has failed to prove the essential elements of
the offense and has constitutionally shifted the burden of proof
by presumption; and 3) the trial court abused its discretion and
violated appellant's constitutional right to a fair trial, by
introduction of inadmissible prior DUI convictions that were not
properly authenticated.
brought on direct appeal.
All of these issues were required to be
See Gross v. Commonwealth, Ky., 648
S.W.2d 853, 857 (1983).
-2-
The only question remaining is whether the nature of
the agreement (Godby to dismiss his appeal in return for the
Commonwealth not opposing shock probation) somehow changes
Godby's position, allowing him to proceed.
These arguments were
rejected by this Court previously in 94-CA-212-MR, by denying the
motion for belated appeal.
We will not disturb that ruling now.
The order of the Grant Circuit Court is affirmed.
ALL CONCUR.
-3-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dewey Godby, Pro se
Roederer Correctional Complex
LaGrange, Ky.
A.B. Chandler III
Attorney General
Elizabeth A. Myerscough
Assistant Attorney General
Frankfort, Ky.
-4-
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