JACK EMERSON POWELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 26, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1340-MR
JACK EMERSON POWELL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY MORRIS, JUDGE
ACTION NO. 95-CR-0874
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: GUIDUGLI, MILLER, and SCHRODER, Judges.
MILLER, JUDGE.
Jack Emerson Powell brings this appeal from a May
22, 1997 order of the Jefferson Circuit Court.
We affirm.
The facts are these: In May 1995, appellant entered a
plea of guilty to possession of cocaine and was sentenced to
three years’ imprisonment, which was probated for a period of
five years.
In March 1996, the Commonwealth filed a motion to
revoke/review probation.
not appear.
A hearing was set, but appellant did
A bench warrant was issued.
on unrelated charges in August 1996.
Appellant was arrested
Thereafter, a hearing was
conducted upon the Commonwealth’s March 1996 motion to revoke/
review probation. Appellant and the Commonwealth reached an
agreement imposing new conditions upon probation.
Appellant
would serve six months’ incarceration in the county jail and
participate in a mandatory drug treatment program.
On September
18, 1996, the circuit court entered an order, which stated, in
relevant part, as follows:
IT IS ORDERED that the motion of the
Commonwealth to revoke is sustained.
The defendant is hereby ordered to serve
six (6) months in the County Jail with referral to the Lifeline program.
In January 1997, the Commonwealth filed a motion to
revoke appellant’s probation.
The basis of this motion stemmed
from the charges of August 1996.
On May 22, 1997, the circuit
court entered an order, which stated, in relevant part, as
follows:
IT IS ORDERED that the motion of the
Commonwealth to revoke is sustained.
The defendant is ordered remanded into
the custody of the Sheriff of Jefferson
County for delivery to the Department of
Corrections for the service of the sentence
of three (3) years in the penitentiary under
judgment entered herein on May 22, 1995.
This appeal followed.
Appellant contends that the May 1997 order revoking his
probation and sentencing him to three years’ imprisonment is
void.
Specifically, appellant asserts that the September 1996
order, by its terms, revoked his probation and sentenced him to
six months in jail.
Thus, the May 1997 order, which attempted to
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revoke his probation for a second time, is void and ineffectual.
We disagree.
We view the September 1996 order as ambiguous.
Upon
review of the record as a whole, we are of the opinion that the
September 1996 order merely modified the terms of his probation
and, in fact, did not revoke same.
764, 174 S.W.2d 431 (1943).
See Turner v. Ewald, 295 Ky.
We believe the circuit court’s
specific reference to sustaining the Commonwealth’s motion to
revoke was simply an inadvertence.
We are buttressed in our
conclusion by noting that the Commonwealth’s actual motion was
styled a “Motion to Revoke/Review.”
Furthermore, we believe such
was the intent of the parties at the time of entering into the
agreement which culminated in the September 1996 order.
In sum,
we do not believe the circuit court “revoked” appellant’s
probation twice.
Rather, we view the September 1996 order as
merely altering the conditions of appellant’s probation and the
May 1997 order as actually revoking probation.
As such, we are
of the opinion that the circuit court did not commit reversible
error.
For the foregoing reasons, the order of the circuit
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Deputy Appellate Defender
Louisville, KY
A. B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
Daniel T. Goyette
Jefferson District Public
Defender, Of Counsel
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