TIMOTHY WAYNE HARMON v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 11, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000015-MR
TIMOTHY WAYNE HARMON
v.
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 96-CR-00104
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
REVERSING AND REMANDING
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BEFORE: DYCHE, GUIDUGLI, AND MILLER, JUDGES.
PER CURIAM.
Appellant, Timothy Wayne Harmon (Harmon), appeals
his conviction of first-degree wanton endangerment, Kentucky
Revised Statute (KRS) 508.060, as a matter of right.
Harmon’s
sole issue on appeal is that the trial court erred in denying his
motion to withdraw his plea agreement after the trial court
rejected the agreement.
The Commonwealth conceded in a motion to
reverse and remand that Harmon should have been permitted to
withdraw his guilty plea.
Having considered the record and
applicable case law, we reverse and remand.
Harmon was indicted for two counts of first-degree
wanton endangerment, pled guilty, and entered into a plea
agreement with the Commonwealth for five (5) years on each count
to be concurrently served, with credit for time already served,
and the balance of the five (5) years to be probated.
The trial court rejected the plea agreement at the
sentencing hearing, refusing to probate the balance of the time.
Harmon immediately moved the trial court to withdraw the plea,
but the trial court denied the motion.
RCr 8.10 provides:
If the court rejects the plea agreement, the
court shall, on the record, inform the
parties of this fact, advise the defendant
personally in open court or, on a showing of
good cause, in camera, that the court is not
bound by the plea agreement, afford the
defendant the opportunity to then withdraw
his plea, and advise the defendant that if he
persists in his guilty plea the disposition
of the case may be less favorable to the
defendant than that contemplated by the plea
agreement.
A court must permit a defendant to withdraw his guilty plea if
the court has not elected to follow it. Haight v. Commonwealth,
Ky., 938 S.W.2d 243, 251 (1996); Kennedy v. Commonwealth, Ky.
App., 962 S.W.2d 880, 882 (1997).
The record reflects that the trial court did not permit
Harmon the opportunity to withdraw his guilty plea after
rejecting the plea agreement entered into by Harmon and the
Commonwealth.
This was error.
For the foregoing reasons, we reverse the judgment of
the Casey Circuit Court and remand this case with directions that
Harmon be permitted to withdraw his guilty plea and proceed to
trial on the original charges if he so chooses.
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Having considered the Commonwealth’s motion to reverse
and remand, this Court ORDERS that the motion be DENIED AS MOOT.
The appellant also filed a motion to dismiss because he was
granted shock probation pursuant to KRS 439.265.
In view of the
foregoing opinion, appellant’s motion is ORDERED DENIED.
ALL CONCUR.
ENTERED:
June 11, 1999
/s/ John D. Miller
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
No brief for appellee.
Tim Berry Falls
Campbellsville, Kentucky
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