JOHN FRAVEL v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1997-CA-001967-MR
AND
1997-CA-003279-MR
JOHN FRAVEL
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
INDICTMENT NO. 93-CR-00600
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, JOHNSON, and KNOX, JUDGES.
KNOX, JUDGE:
John Fravel (Fravel) brings this appeal from two
Fayette Circuit Court orders denying his motion for credit on
time served and his motion for relief filed pursuant to Kentucky
Rule of Civil Procedure (CR) 60.02.
After review of the record,
we affirm.
In 1990, Fravel was convicted of larceny, fraud, and
passing forged checks in Orange County, Florida.
After being
released on parole in Florida, Fravel came to Kentucky.
Between
June 11-15, 1993, Fravel cashed four checks in Lexington,
Kentucky, that had been written on a closed bank account in
Florida.
In August 1993, the Fayette County Grand Jury indicted
Fravel on four felony counts of criminal possession of a forged
instrument in the second degree (KRS 516.060).
The Fayette
Circuit Court issued a warrant of arrest for Fravel on the felony
indictment.
After learning that Fravel was in prison in Florida,
the Fayette County Commonwealth’s Attorney filed a request for
temporary custody with the Florida prison authorities in August
1993 under the Interstate Agreement on Detainers (KRS 440.450 et
seq.).
Fravel was returned to Kentucky in October 1993 for trial
on the Fayette County indictment.
On January 14, 1994, Fravel
entered a guilty plea on the four counts of criminal possession
of a forged instrument pursuant to a plea agreement with the
Commonwealth.
Under the agreement, the Commonwealth recommended
a sentence of five years on each of the four counts with the
sentences on the first three counts running concurrently with
each other, but consecutively to the sentence on the fourth
count, for a total sentence of ten years.
On February 14, 1994,
the trial court sentenced Fravel to serve ten years consistent
with the Commonwealth’s recommendation and ordered the sentence
to run consecutively to “any other previous felony sentence the
defendant must serve.”
Consistent with the calculation prepared
by the Division of Probation and Parole in the Presentece
Investigation Report (PSI), the trial court awarded Fravel one
hundred and twenty-three (123) days presentence jail-time credit
on the ten-year felony sentence.
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See KRS 532.120.
Fravel then
was returned to Florida to continue serving his prison sentence
on the 1990 Florida conviction.
On June 7, 1994, Fravel completed serving the sentence
on his 1990 Florida felony conviction.
However, he was held in
the Broward County Jail in Florida based on a Kentucky detainer
filed by Fayette County and several other warrants from Florida
and New York.
On January 18, 1996, Fravel pled guilty in Broward
County, Florida, to uttering a forged instrument, forgery, and
grand theft in the third degree.
He was sentenced to serve five
years to run concurrent with the 1994 Kentucky sentence.
In
November 1996, Fravel was released on the 1996 Florida conviction
after receiving credit for the time spent in jail between June
1994 and January 1996.
On November 1, 1996, Fravel returned to
Kentucky to begin serving the ten-year sentence on the 1994
Kentucky conviction.
On June 25, 1997, Fravel filed a Motion for Credit on
Time Served seeking credit on his Kentucky sentence for the time
spent incarcerated in Florida following release on his 1990
Florida conviction.
The trial judge wrote a letter to the
Division of Probation and Parole requesting an investigation into
Fravel’s motion and his request for additional jail-time credit.
On July 11, 1997, Angela Tolley, the Probation and Parole Officer
who had prepared Fravel’s initial PSI report, responded by letter
to Fayette Circuit Court Judge John Adams.
She indicated that
Fravel had been detained in Florida in June 1994 on several
warrants, as well as, the Kentucky detainer.
She also stated
that Fravel had already received credit on the 1996 Florida
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sentence for the same period he was seeking credit on the
Kentucky sentence.
On July 24, 1997, Judge Adams denied the
motion stating Fravel was not entitled to credit beyond the one
hundred and twenty-three (123) days already awarded.
On July 29,
1997, Fravel filed a motion to reconsider, which the trial court
denied on July 31, 1997.
On August 7, 1997, Fravel filed an
appeal.
On November 3, 1997, Fravel filed a motion for a new
trial pursuant to CR 60.02(b), (c), (d), and (f), seeking a
hearing on his request for additional credit on his Kentucky
sentence.
On December 5, 1997, the Commonwealth’s Attorney filed
a response to the CR 60.02 motion.
On December 8, 1997, the
trial court denied the CR 60.02 motion, and Fravel filed an
appeal.
The current action represents a consolidation of the two
above-described appeals.
Fravel argues that he is entitled to credit on his tenyear sentence on the 1994 Kentucky conviction for the period that
he spent incarcerated in Florida between June 7, 1994, and
November 1, 1996.
He contends that the July 11, 1997, letter
from the Probation and Parole Officer contained inaccurate
information that unjustly prejudiced his request for additional
jail credit.
Fravel submitted several documents to the trial
court that he maintains demonstrate that he was held in jail in
Florida solely because of the Kentucky detainer following his
release on the 1990 Florida conviction.
The exact support for Fravel’s claim to additional
prison credit is somewhat ambiguous.
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First, he argues that the
final sentencing order of the Fayette Circuit Court states that
his Kentucky sentence was to run consecutively to any other
previous felony sentence.
Therefore, he asserts that because the
1996 Florida conviction was rendered subsequent to the Kentucky
conviction, the sentences for these two sentences should run
concurrently with each other.
Fravel also points out that the
final judgment on the 1996 Florida conviction specifically states
that that sentence would run concurrently with the Kentucky
sentence.
Unfortunately, Fravel’s argument runs counter to
Kentucky statutory law.
KRS 532.115 states:
The court in sentencing a person convicted of
a felony, shall be authorized to run the
sentence concurrent with any federal sentence
received by that defendant for a federal
crime and any sentence received by that
defendant in another state for a felony
offense. The time spent in federal custody
and the time spent in custody in another
state under the concurrent sentencing shall
count as time spent in state custody; but the
federal custody and custody in another state
shall not include time spent on probation or
parole or constraint incidental to release on
bail. If the court does not specify that its
sentence is to run concurrent with a specific
federal sentence or sentence of another
state, the sentence shall not run concurrent
with any federal sentence or sentence of
another state.
KRS 533.060(2) states:
When a person has been convicted of a felony
and is committed to a correctional detention
facility and released on parole or has been
released by the court on probation, shock
probation, or conditional discharge, and is
convicted or enters a plea of guilty to a
felony committed while on parole, probation,
shock probation, or conditional discharge,
the person shall not be eligible for
probation, shock probation, or conditional
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discharge and the period of confinement for
that felony shall not run concurrently with
any other sentence.
The final judgment of the Fayette Circuit Court does
not specify that it would run concurrently with the Florida
sentence, and therefore it must run consecutively to the Florida
sentence under KRS 532.115.
In addition, Fravel committed the
felonies underlying the Kentucky sentence while he was on parole
for the 1990 Florida felony conviction.
Thus, under KRS
533.060(2), the Kentucky sentence “shall not run concurrently
with any other sentence.”
This statute has been construed to
encompass sentences involving convictions in Kentucky and another
state.
See Rosenberg v. Defew, Ky. App., 862 S.W.2d 334 (1993).
The Fayette Circuit Court is not obligated to order the Kentucky
sentence to run concurrently merely because the Florida court
orders the Florida sentence to run concurrently with the Kentucky
sentence.
The Florida court gave Fravel credit on his 1996
Florida sentence for the period between June 1994 and November
1996, and it cannot control whether a Kentucky court will give a
defendant credit on a Kentucky conviction and sentence.
The record does not demonstrate that Fravel remained in
jail in Florida after June 1994 solely because of the Kentucky
detainer.
While several of the charges connected with the
warrants initially filed upon Fravel’s release in June 1994 were
ultimately dismissed, the felony charges supporting the 1996
Florida conviction were pending throughout this period.
The
documents submitted by Fravel do not demonstrate that he remained
in jail in Florida solely because of the Kentucky detainer.
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In conclusion, Fravel has not established that he was
entitled to any additional prison time on his Kentucky sentence
for the period he was incarcerated in Florida.
The trial court
awarded Fravel one hundred and twenty-three (123) days for jailtime credit for the time he spent in the Kentucky jail prior to
being sentenced in February 1994.1
Moreover, Fravel already has
received credit for the entire period he was incarcerated in
Florida on the 1996 Florida conviction.
Fravel has not shown why
he would be entitled to double credit in both Kentucky and
Florida for the same time period he was incarcerated in Florida.
As a result, the trial court did not err in denying the motion
for credit on time served and the CR 60.02 motion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Fravel, Pro Se
Lexington, Kentucky
A. B. Chandler III
Attorney General
Joseph R. Johnson
Assistant Attorney General
Frankfort, Kentucky
1
It is
presentence
serving the
See Houston
questionable whether
jail-time credit for
sentence on the 1990
v. Commonwealth, Ky.
Fravel was entitled to receive
this period because he was
Florida conviction at the time.
App., 641 S.W.2d 42 (1982).
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