JACTA EST ALEA v. GLEN E. HAEBERLIN, KENTUCKY STATE PENITENTIARY
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RENDERED: JULY 9, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002172-MR
JACTA EST ALEA
v.
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 03-CI-00113
GLEN E. HAEBERLIN,
KENTUCKY STATE PENITENTIARY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND KNOPF, JUDGES.
BUCKINGHAM, JUDGE: Jacta Est Alea appeals from an order of the
Lyon Circuit Court denying his motion for relief pursuant to CR1
60.02.
We affirm.
Jacta Est Alea is an inmate at the Kentucky State
Penitentiary in Lyon County, Kentucky.
segregation unit.
He is housed in the
On May 29, 2003, he filed a Motion for
Declaration of Rights in the Lyon Circuit Court claiming that
his constitutional rights were being violated due to prison
1
Kentucky Rules of Civil Procedure.
conditions.
On July 15, 2003, the court entered an order
dismissing the motion.
No appeal was taken.
On September 10, 2003, Jacta Est Alea filed a motion
pursuant to CR 60.02 requesting relief from the prior dismissal
order.
In support of the motion, he stated that the court
failed to direct the clerk to transmit copies of the order to
the prison officials and to the county attorney as required by
KRS2 454.405(3).
On September 19, 2003, the court entered an
order denying the motion.
This appeal followed.
Jacta Est Alea alleges two errors in his appeal.
First, he asserts that the judge failed to recuse himself in the
declaration of rights action in accordance with KRS
26A.015(2)(a).
Next, he alleges that the court failed to comply
with KRS 454.405(3) by not directing the clerk to send the
copies of the order of dismissal to the prison officials and the
county attorney.
Concerning the issue of whether the trial judge should
have recused himself from hearing the Motion for Declaration of
Rights, we note that this issue was not raised in the CR 60.02
motion.
Therefore, it is not properly before this court on
appeal.
See Regional Jail Authority v. Tackett, Ky., 770 S.W.2d
225, 228 (1989).
2
Kentucky Revised Statutes.
-2-
Furthermore, this is an issue that would have been
available for our review on direct appeal from the dismissal
order.
However, because Jacta Est Alea did not file a direct
appeal from the dismissal order, relief pursuant to CR 60.02 is
not available.
See McQueen v. Commonwealth, Ky., 948 S.W.2d 415
(1997), wherein the Kentucky Supreme Court stated that “CR 60.02
is not a separate avenue of appeal to be pursued in addition to
other remedies, but is available only to raise issues which
cannot be raised in other proceedings.”
Id. at 416.
Concerning the issue of the court’s apparent failure
to direct the clerk to send a copy of the dismissal order to the
prison officials and the county attorney, we note that this is
also an issue that would have been available for our review on
direct appeal of the dismissal order.
Again, because Jacta Est
Alea did not file a direct appeal from the order, relief
pursuant to CR 60.02 is not available.
See McQueen, supra.
The order of the Lyon Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEES:
Jacta Est Alea, Pro Se
Eddyville, Kentucky
-3-
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