BOBBY CURTIS V. KENTUCKY DEPARTMENT OF CORRECTIONS
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RENDERED:
November 19, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001986-MR
BOBBY CURTIS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 03-CI-02063
V.
KENTUCKY DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
Inmate Bobby Gene Curtis appeals from a circuit
court order that denied his petition for declaratory judgment
seeking a declaration of rights that he is entitled to have time
spent while on parole credited to his final discharge date under
a special provision contained in 2003 Ky. Acts, Ch. 156,
Part IX, item 36(a).
Because Curtis is not entitled to parole
credit under this provision, we affirm.
Curtis was paroled in November 2001.
to custody after ten months and five days.
He was returned
His parole was
finally revoked in September 2002 for a violation of the
conditions of parole.
After his return to custody, Curtis filed a petition
for declaratory judgment in the circuit court.1
In the petition,
Curtis alleged that he is entitled to have the period of time he
was on out on parole credited toward his final discharge date.
The circuit court denied the petition.
This appeal followed.
In support of his argument, Curtis relies upon a
special provision contained in 2003 Ky. Acts, Ch. 156, Part IX,
item 36(a),2 a budget bill, which provides as follows:
Probation and Parole Credit:
Notwithstanding KRS 439.344,[3] the period of
time spent on parole shall count as a part
of the prisoner’s remaining unexpired
1
Kentucky Revised Statutes (KRS) 418.040.
2
The act originated as House Bill 269.
3
KRS 439.344 provides as follows: “The period of time spent on
parole shall not count as a part of the prisoner's maximum sentence
except in determining parolee's eligibility for a final discharge
from parole as set out in KRS 439.354.” KRS 439.354 provides as
follows: “When any paroled prisoner has performed the obligations
of his parole during his period of active parole supervision the
board may, at the termination of such period to be determined by the
board, issue a final discharge from parole to the prisoner. Unless
ordered earlier by the board, a final discharge shall be issued when
the prisoner has been out of prison on parole a sufficient period of
time to have been eligible for discharge from prison by maximum
expiration of sentence had he not been paroled, provided before this
date he had not absconded from parole supervision or that a warrant
for parole violation had not been issued by the board.”
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sentence, when it is used to determine a
parolee’s eligibility for a final discharge
from parole as set out in KRS 439.354, or
when a parolee is returned as a parole
violator for a violation other than a new
felony conviction.4
The Governor vetoed a portion of the bill on March 20,
2003.
And the balance of the bill became law March 23, 2003,
without the Governor’s signature.
The General Assembly overrode
the Governor’s vetoes on March 25, 2003.5
The act accordingly
went into effect approximately six months after Curtis’s parole
was revoked.6
KRS 446.110, the statute relied upon by the circuit
court in denying Curtis’s petition, provides as follows:
No new law shall be construed to repeal a
former law as to any offense committed
against a former law, nor as to any act
done, or penalty, forfeiture or punishment
4
See 2003 Ky. Acts, Vol. II, p. 1876.
5
The veto and veto overrides did not affect the provisions of the
bill at issue in the case. See 2003 Ky. Acts, Vol. II, p. 1912.
6
In his brief, Curtis states, without citation, “[a]llegedly the Bill
was to become effective April 1st[,] 2003, and be in effect until
June 30th[,] 2004. The Bill is to allegedly apply to inmates that
have their parole revoked after April 1st[,] 2003.” While the
language of the bill does not corroborate this, it is apparent that
the provision was not intended to permanently amend existing parole
credit provisions. The provision does not conform with the
requirements of KRS 446.145(1) for amending an existing section of a
statute by indicating the material proposed to be deleted by
brackets and by striking through the material, nor with the
requirements of KRS 446.145(2) by indicating new material by
underlining. Cf. Com. Educ. & Humanities Cabinet Dept. of Educ. v.
Gobert, Ky.App., 979 S.W.2d 922, 927 (1998) (A budget is required to
be enacted as a bill and, as such, has the power to amend or repeal
existing statutes). The section has also not been codified into the
probation and parole provisions of the Kentucky Revised Statutes.
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incurred, or any right accrued or claim
arising under the former law, or in any way
whatever to affect any such offense or act
so committed or done, or any penalty,
forfeiture or punishment so incurred, or any
right accrued or claim arising before the
new law takes effect, except that the
proceedings thereafter had shall conform, so
far as practicable, to the laws in force at
the time of such proceedings. If any
penalty, forfeiture or punishment is
mitigated by any provision of the new law,
such provision may, by the consent of the
party affected, be applied to any judgment
pronounced after the new law takes effect.
We agree with the circuit court that application of
KRS 446.110 prevents retroactive application of the provision to
Curtis.
Further, it is a principle of statutory construction
that retroactive effect or retrospective application of an act
will not be given or made unless the intent that it should be is
clearly expressed or necessarily implied.7
No statute shall be
construed to be retroactive, unless expressly so declared.8
It
follows that the credit rules in effect at the time Curtis was
on parole and at the time his parole was revoked are applicable
to the time he spent on parole, rather than the provisions of
2003 Ky. Acts, Ch. 156, Part IX, item 36(a).
Curtis raises for the first time in this appeal
various constitutional challenges, including equal protection,
7
Taylor v. Asher, Ky., 317 S.W.2d 895, 897 (1958).
8
KRS 446.080(3).
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which, he claims, compels the application of the new parole
rules to his situation.
However, as Curtis did not raise these
issues in the circuit court, we will not address these issues on
the merits.9
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby Gene Curtis, Pro se
Blackburn Correctional Complex
Lexington, Kentucky
(No brief filed)
9
Chambers v. City of Newport, Ky.App., 101 S.W.3d 904, 906 (2002).
Further, Curtis failed to comply with KRS 418.075 by notifying the
Attorney General of his challenge to the constitutionality of the
provision.
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