OTTO FRANK WILLHITE v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000524-MR
OTTO FRANK WILLHITE
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
INDICTMENT NO. 94-CR-00480
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DYCHE, AND MCANULTY, JUDGES.
DYCHE, JUDGE:
Otto Frank Willhite appeals from an order of the
Fayette Circuit Court which corrected his sentence of
imprisonment from one year to five years.
The order appealed
from was entered as a result of Willhite’s violation of an order
placing him on probation for three years in lieu of five years’
imprisonment.
Willhite claims that because the trial court entered an
order revoking his probation and sentencing him to one year in
prison on September 5, 1996, the order at issue herein, entered
September 23, 1996, was beyond the power of the trial court.
He
asserts, correctly, that the trial court loses control over its
judgments ten days following the entry thereof; and that a
petition for a writ of habeas corpus is the proper vehicle for
challenging an order such as the one under which Willhite is
incarcerated.
Commonwealth v. Marcum, Ky., 873 S.W.2d 207
(1994).
That appears to be exactly what Willhite did in his
action in the Morgan Circuit Court.
Unfortunately for him, that
court denied his relief, and that order is now final; he is
prohibited from again raising the issue by the doctrine of res
judicata.
same.
The litigants are the same, and the issues are the
The present action is barred.
Gregory v. Commonwealth,
Ky., 610 S.W.2d 598 (1980).
The order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Otto Frank Willhite, Pro Se
West Liberty, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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