JAN DEVONT BLYTHE v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
FEBRUARY 10, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001087-MR
JAN DEVONT BLYTHE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 02-CR-00977
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND VANMETER, JUDGES.
JOHNSON, JUDGE:
Jan Devont Blythe, pro se, has appealed from an
order of the Fayette Circuit Court entered on May 4, 2004, which
dismissed his motion to vacate his sentence pursuant to RCr1
11.42.
Having concluded that Blythe did not substantially
comply with the requirements of RCr 11.42 in filing his motion,
we affirm.
1
Kentucky Rules of Criminal Procedure.
On September 16, 2002, Blythe was indicted by a
Fayette County grand jury on two counts of burglary in the first
degree,2 one count of burglary in the second degree,3 and being a
persistent felony offender in the first degree (PFO I).4
On
October 25, 2002, Blythe filed a waiver of further proceedings
with petition to enter a plea of guilty to all counts as charged
in the indictment.
On October 30, 2002, the trial court entered
a judgment accepting his guilty plea.
Blythe was sentenced on
November 22, 2002, to ten years on count one of burglary in the
first degree, ten years on count two of burglary in the first
degree to run concurrently with count one, and five years for
burglary in the second degree to run consecutively to the
sentences for burglary in the first degree.
His ten-year
sentence on count one was enhanced to 20 years by virtue of his
conviction for being a PFO I; thus, he received a total sentence
of 25 years.
He was further ordered to pay restitution in the
amount of $4,200.00.5
On December 5, 2002, Blythe filed a motion to
reconsider sentence requesting his November 22, 2002, sentences
be modified to run concurrently with each other and concurrently
2
Kentucky Revised Statutes (KRS) 511.020.
3
KRS 511.030.
4
KRS 532.080(3).
5
The trial court also ruled that Blythe would not be eligible for probation.
-2-
with other sentences he was serving.
The trial court denied the
motion on December 12, 2002.
On June 6, 2003, Blythe, through counsel, filed a
motion to vacate sentence pursuant to RCr 11.42.
The
Commonwealth responded on April 12, 2004,6 by filing a motion to
dismiss, stating that Blythe’s motion had not been signed and
verified by him.
The trial court agreed with the Commonwealth
and dismissed Blythe’s RCr 11.42 action on May 4, 2004.
This
appeal followed.
RCr 11.42(2) provides as follows:
The motion shall be signed and verified by
the movant and shall state specifically the
grounds on which the sentence is being
challenged and the facts on which the movant
relies in support of such grounds. Failure
to comply with this section shall warrant a
summary dismissal of the motion [emphasis
added].
Further, our Supreme Court has held that RCr 11.42 requires
substantial compliance in order to confer jurisdiction.7
In this case, Blythe’s RCr 11.42 motion was signed by
his attorney, but lacked his notarized signature verifying the
motion.
Therefore, we cannot reach the merits of Blythe’s
arguments because he has failed to substantially comply with the
6
There is no indication in the record as to why a ten-month delay occurred
between the filing of Blythe’s motion and the filing of the Commonwealth’s
motion to dismiss. However, it is noted that the motion was temporarily
misplaced when filed and not entered into the record until April 28, 2004.
7
Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky. 1978).
-3-
requirement that an RCr 11.42 motion be signed and verified by
the movant.
The trial court had no other alternative but to
dismiss the motion and did not err in doing so.
For the foregoing reasons, the order of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jan Devont Blythe, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
