ERNEST CARTWRIGHT v. DAVID VANCE
Annotate this Case
Download PDF
RENDERED:
August 22, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
97-CA-0445-MR
ERNEST CARTWRIGHT
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL LONG, JUDGE
ACTION NO. 96-CI-0259
v.
DAVID VANCE
APPELLEE
OPINION REVERSING
AND REMANDING
* * * * * * * * * * *
BEFORE:
WILHOIT, Chief Judge; ABRAMSON and DYCHE, Judges.
WILHOIT, CHIEF JUDGE:
This is an appeal from a Morgan Circuit
Court order denying the appellant's motion to reopen.
On December 21, 1995, the appellant and another inmate
engaged in an altercation which resulted in injuries to the
inmate.
The Department of Corrections conducted an investigation
of the incident and found that the appellant was guilty of
assault resulting in the serious injury of another inmate.
The
appellant was then sentenced to 180 days' disciplinary
segregation, 720 days' forfeiture of non-restorable good-time
credit, and $535 restitution for medical expenses.
The
appellant's appeal to the warden was denied.
The appellant filed a petition for declaratory judgment
in Morgan Circuit Court seeking to have his punishment modified
or be granted a new hearing on the grounds that his due process
rights were violated.
The appellee filed a motion to hold the
case in abeyance on November 21, 1996.
The appellee's motion was
granted, and the Department of Corrections agreed to vacate the
original sentence and hold another hearing on the disciplinary
charge against the appellant.
On January 9, 1997, the appellant
was found guilty of the lesser offense of physical action
resulting in an injury to another inmate and was sentenced to 45
days' disciplinary segregation.
The appellant chose not to
appeal this sentence to the warden.
On January 15, 1997, the appellant filed a motion in
the circuit court requesting that the previously forfeited goodtime credit be re-credited and the restitution be returned
because his new sentence did not include these penalties.
The
appellee responded with a motion to dismiss, which motion was
granted by the circuit court.
The court held that the issues
presented by the appellant were moot and no actual controversy
was stated.
On January 17, 1997, one day after the circuit court
dismissed the case, the warden "remanded" the decision of the
disciplinary committee to it for a determination on the issue of
restitution.
On January 23, the committee reinstated the $535
restitution for medical expenses that had been imposed
originally.
The appellant filed a motion to reopen in the
circuit court.
The circuit court thereafter denied all of
appellant's pending motions.
This appeal followed.
2
The appellant makes two arguments in support of his
claim that his due process rights were violated.
First, he
contends that there is insufficient factual support in the record
to justify imposing $535 restitution for the medical expenses of
the injured inmate.
Second, he asserts that the warden lacked
the authority under 501 KAR 6:020 and Corrections Policy and
Procedure 15.6 to remand the case for a determination on
restitution.
This court will not review the merits of
appellant's claim at this time.
The current appeal is from the
circuit court's denial of the appellant's motion to reopen.1
Therefore, the only issue before the court is whether the circuit
court erred in refusing to reopen the final judgment dismissing
the case.
The appellant contends that this case should be
reopened because subsequent action by the warden shows that a
controversy between the parties does exist and the issues raised
by appellant are not moot.
The appellant has not specified
whether his motion to reopen is pursuant to CR 59.05 or CR 60.02.
We believe the motion should properly be viewed as a motion
pursuant to CR 60.02.2
1
The circuit court’s order of February 12, 1997, does not
specify which motions are denied. However, it appears that the
court was denying the appellant’s motion to reopen and did not
address the merits of his claim.
2
A motion to alter, amend, or vacate a judgment under CR
59.05 must be served within ten days of the final judgment. The
appellant's motion to reopen was not filed within ten days of the
final judgment and, therefore, could be summarily denied if
viewed as a CR 59.05 motion. However, there is no evidence in
the record to support viewing this motion as a CR 59.05 motion.
3
At the time the action for a declaration of rights was
dismissed, the parties believed that the action was moot because
the only punishment to be given the appellant was 45 days in
segregation.
The court was so notified by counsel for the
Department of Corrections.
It now appears that the parties were
proceeding under a mutual mistake as to the factual predicate for
dismissing the action.
The appellant's motion was made within a
reasonable time of the entry of the order of dismissal.
Under
the circumstances, we believe the trial court abused its
discretion in not vacating the order of dismissal and reopening
the case.
The circuit order of February 12, 1997, denying all
pending motions is reversed in so far as the order was a denial
of appellant's motion to reopen.
Upon remand, the circuit court
should make a determination on the appellant's claim that his due
process rights were violated when restitution was reinstated
against him.
ALL CONCUR.
BRIEF FOR APPELLANT:
No brief for appellee
Ernest Cartwright, Pro Se
Eddyville, KY
Furthermore, neither the appellee nor the circuit court have
viewed appellant's motion as such.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
