RICHARD LEE JOHNSON v. COMMONWEALTH OF KENTUCKY, DEPARTMENT OF CORRECTIONS
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RENDERED:
October 5, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000912-MR
RICHARD LEE JOHNSON
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 99-CI-01472
v.
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE:
Richard Lee Johnson (Johnson) brings this appeal
from a March 14, 2000, order of the Franklin Circuit Court.
We
affirm.
On May 6, 1977, Johnson was sentenced to six years'
imprisonment on federal criminal charges.
probated.
His sentence was
On July 23, 1979, Johnson's probation was revoked.
was paroled on the federal charges July 23, 1980.
He
On January 7,
1983, Johnson pled guilty to state charges, and was sentenced to
twenty-eight years to run concurrently with his federal sentence.
On May 6, 1983, Johnson's federal sentence expired.
Johnson was credited with one year, three months and
twenty-nine days against his state sentence for time served on
the federal charge.
The credit of one year is for the period
from July 23, 1979, when his probation was revoked until July 23,
1980, when he was paroled on the federal charges.
The CREDIT of
three months and twenty-nine days is for the time between January
7, 1983 when he pled guilty to state charges until his federal
sentence expired May 6, 1983.
On December 28, 1999, Johnson filed a petition for a
writ of mandamus in the Franklin Circuit Court.
Cf. Lemon v.
Corrections Cabinet, Ky. App., 712 S.W.2d 370 (1986).
14, 2000, Johnson's writ was denied.
On March
Johnson's motion for
reconsideration was denied by the Franklin Circuit Court March
30, 2000.
This appeal followed.
Johnson maintains the circuit court erred in denying
his petition for a writ of mandamus.
Therein, he sought to order
the Department of Corrections to recalculate his credit for
federal jail time served.
Specifically, Johnson contends he
should have been credited for time spent during his federal
sentence on probation and parole as well as time actually
confined.
Johnson admits that probation and parole are not
considered custody under the current version of Kentucky Revised
Statutes (KRS) 532.115, which reads in part:
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
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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.
He points out, however, that at the time of his state conviction
an earlier version of KRS 532.115 was in effect, which read:
The court, in sentencing a person convicted
of a felony, shall be authorized to run such
sentence concurrent with any federal sentence
received by that same defendant for a federal
crime. The time spent in federal custody
under such concurrent sentencing shall count
as time spent in state custody.
We observe the statute does not expressly mandate
probation and parole to be considered custody for the purpose of
calculation of concurrent sentencing.
Johnson directs us to no
case law or other authority that so indicates.
As such, we are
of the opinion that probation and parole did not constitute
custody for the purpose of calculating concurrent sentences.
Upon the whole, we perceive no error by the Franklin Circuit
Court.
For the foregoing reasons, the judgment of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
John Anthony Palombi
Frankfort, Kentucky
John T. Damron
Frankfort, Kentucky
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