JOSEPH CASE v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 20, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001633-MR
JOSEPH CASE
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JULIA ADAMS, JUDGE
ACTION NO. 98-CR-00042
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON AND GUIDUGLI, JUDGES.
EMBERTON, JUDGE: Joseph Case entered a guilty plea to one count
of possession of a controlled substance conditioned upon his
right to appeal the trial court’s denial of pretrial diversion as
provided for in Kentucky Revised Statutes (KRS) 533.250-262.
We
affirm.
In August 1998, Case was indicted by the Madison County
Grand Jury on one count of first-degree possession of a
controlled substance.
After entering a plea of not guilty at his
September 3rd arraignment, Case subsequently filed a motion in
October 1998, for pretrial diversion pursuant to a new section of
KRS Chapter 533 which became effective on July 15, 1998.
The
Commonwealth opposed the motion, citing Case’s record of having
four previous driving infractions and of previously having been
in possession of a weapon while intoxicated.
The trial court
denied the motion for diversion because of its belief that
assignment of a criminal defendant to a pretrial diversion
program over the objection of the Commonwealth constitutes an
impermissible infringement upon the Commonwealth’s prosecutorial
function and violates Section 81 of the Kentucky Constitution.
The trial court also noted in its order that the Madison Circuit
Court had not yet submitted its pretrial diversion plan to the
Kentucky Supreme Court for approval as required by KRS
533.250(1), prior to December 1, 1999.
Although Case argues in this appeal that the trial
court erred in concluding that it could not refer a defendant to
pretrial diversion over the objection of the Commonwealth and in
determining that the statute impermissibly infringes upon the
prosecutorial function, we are convinced that the trial court
properly denied diversion because, at the time of Case’s motion,
there was no program in place to which he could have been
referred.
KRS 533.262 provides in pertinent part:
(1) The pretrial diversion program authorized
by KRS 533.250 to 533.260 shall be the sole
program utilized in the Circuit Courts of the
Commonwealth.
(2) As of July 15, 1998, the only other
pretrial diversion programs utilized by the
Commonwealth shall be those authorized by the
Kentucky Supreme Court and providing for the
pretrial diversion of misdemeanants.
Programs existing as of July 15, 1998, may
continue for the purpose of supervising
persons granted pretrial diversion prior to
July 15, 1998, however no new persons shall
-2-
be admitted to these programs.
added).
(Emphasis
It thus appears that the circuit court would have been
without authority to order diversion even if the Commonwealth had
not opposed the motion and its concerns about the statute’s
constitutionality did not exist.
Appellant simply had the
misfortune of falling into a time period when pretrial diversion
was not authorized for new defendants in Madison County.
Although the trial court’s denial of probation was
primarily predicated upon an entirely different basis than the
rationale underpinning this decision, we must affirm the decision
if it is legally correct for any reason.1
Being of the opinion
that Case’s entitlement to diversion was proscribed by the plain
language of the statute under which he sought relief, we need not
address the constitutional concerns of the trial court.2
The judgment of the Madison Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
1
Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 31 (1998).
2
Cf., Commonwealth v. Halsell, Ky., 934 S.W.2d 552, 554-55
(1996), in which the Supreme Court reiterated the long-standing
principle that, where possible, statutes should be interpreted
and harmonized so as to give effect to the legislative mandate.
-3-
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