COMMONWEALTH OF KENTUCKY v. AARON PRATT
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RENDERED: March 3, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001348-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE JOHN R. MORGAN, JUDGE
ACTION NO. 87-CR-00038
v.
AARON PRATT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND MILLER, JUDGES.
MILLER, JUDGE:
Commonwealth of Kentucky brings this appeal from
a May 11, 1998 Order of the Knott Circuit Court.
We affirm.
On November 19, 1987, appellee and another individual,
Robert Melton, were indicted for the class C felony of seconddegree burglary (Kentucky Revised Statutes 511.030).
On May 3,
1988, both defendants entered pleas of guilty and were sentenced
to one year imprisonment probated.
On April 15, 1998, appellee
filed a motion pursuant to Ky. R. Civ. P. (CR) 60.02 to clarify
sentence.
Therein, he maintained that he pled guilty to a
misdemeanor rather than a felony offense.
no objection to the motion.
The Commonwealth made
In a May 11, 1998 order, the circuit
court concluded that appellee had pled guilty to a Class A
misdemeanor.
On May 21, 1998, the Commonwealth filed a CR 59.05
motion to vacate, set aside or correct order.
The Commonwealth
alleged the circuit court committed error by granting appellee's
CR 60.02 motion.
On the same day, the Commonwealth filed a
notice of appeal to this court from the circuit court's May 11,
1998 order.
This Court abated the appeal pending the circuit
court's ruling upon the Commonwealth's motion to alter, amend or
vacate.
The circuit court eventually denied the Commonwealth's
motion on September 30, 1999.
The Commonwealth brings but a single issue on appeal -whether the circuit court erred by granting appellee's CR 60.02
motion.
We harbor grave concern as to whether such error has
been adequately preserved for appellate review.
The record
indicates the Commonwealth made no objection to appellee's CR
60.02 motion.
Rather, the Commonwealth's protest came only after
the circuit court entered its order in appellee's favor and in
the form of a motion to alter, amend or vacate.
To be properly
preserved for review, we think the Commonwealth should have
objected to appellee's CR 60.02 motion before entry of the order
granting same.
We shall, nevertheless, consider this appeal upon
its merits.
We perceive appellee's CR 60.02 motion as proceeding
under subsection (a) and (f).
We note the record is silent as to
whether appellee pled guilty to a Class C felony or a Class A
misdemeanor.
The transcript is also devoid of reference to
either during the guilty plea proceeding.
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In granting appellee's CR 60.02 motion, the court
stated:
[A]fter reviewing the tape of the guilty plea
in question, [the court] hereby finds that
the Defendant plead [sic] guilty to a Class A
misdemeanor in this action.
The circuit court's decision to grant appellee's CR 60.02 motion
will not be disturbed on appeal absent a clear showing of abuse
of discretion.
See Fortney v. Mahan, Ky., 302 S.W.2d 842 (1957),
and Schott v. Citizens Fidelity Bank & Trust Company, Ky. App.,
692 S.W.2d 810 (1985).
Based upon the ambiguous record, we
simply are unable to conclude that the circuit court abused its
discretion in granting appellee's CR 60.02 motion.
For the foregoing reasons, the Order of the Knott
Circuit Court is affirmed.
COMBS, JUDGE, CONCURS.
GUDGEL, CHIEF JUDGE, DISSENTS.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
A.B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Ned Pillersdorf
Prestonsburg, Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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