CAROLYN HUFFINES v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 16, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001033-MR
CAROLYN HUFFINES
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 00-CR-000050
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
GUIDUGLI, HENRY, AND TACKETT,1 JUDGES.
GUIDUGLI, JUDGE:
Carolyn Huffines appeals from an order of the
Jefferson Circuit Court granting the Commonwealth’s motion to
revoke Huffines’s probation.
Huffines argues that the circuit
court improperly acted after it had lost jurisdiction on the
matter.
She also maintains that the filing of a motion to
revoke probation does not toll the running of the probationary
period.
For the reasons stated below, we reverse the order on
appeal.
1
Judge Julia K. Tackett concurred in this opinion prior to her retirement
effective June 1, 2006.
The facts are not in controversy.
On February 15,
2000, Huffines entered a plea of guilty in Jefferson Circuit
Court to one count of forgery of a prescription.
She received a
sentence of one year in prison, which was probated for five
years.
On December 6, 2004, the Commonwealth filed a motion
to revoke Huffines’s probation.
A hearing on the motion was
eventually conducted on May 9, 2005.
Huffines argued at the
hearing that the circuit court’s jurisdiction to rule on the
motion to revoke expired on February 15, 2005, the last day of
her probationary period.
The circuit court was not persuaded by
this argument, and found that Huffines had violated her
probation.
It reinstated Huffines’s one-year sentence on the
underlying guilty plea.
This appeal followed.
Huffines now argues that the circuit court committed
reversible error in failing to find that its jurisdiction over
the matter ended on February 15, 2005, the last day of
Huffines’s probationary period.
She cites to KRS 533.020(1),
which states in relevant part that “. . . if the defendant
commits an additional offense or violates a condition, [the
court may] revoke the sentence at any time prior to the
expiration or termination of the period of probation.”
Since
the termination of the probationary period was February 15,
2005, Huffines maintains that the circuit court acted outside
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its jurisdiction by purportedly revoking her probation months
later in May 2005.
She seeks a reversal of the order on appeal.
We find Huffines’s argument persuasive.
KRS
533.020(1) states in clear and unambiguous terms that the court
may revoke probation “at any time prior to the expiration or
termination of the period of probation.”
This language is
subject to but one interpretation, that being probation must be
revoked, if at all, before the probationary period expires.
The Commonwealth relies on Commonwealth v. Griffin2 for
the proposition that the circuit court acted properly in
revoking Huffines’s probation after her probationary period
ended.
Griffin, however, is distinguishable from the instant
facts.
In Griffin, the probationer and the trial court agreed
to extend the probationary period for an additional five years
beyond the statutorily authorized five-year period.
During the
second (and unauthorized) five-year period, the probationer
argued that probation could not be revoked because it was beyond
the statutorily authorized five-year period.
The Kentucky
Supreme Court opined that the statute’s five-year limitation on
a probation period can be waived by a probationer’s knowing and
voluntary request for extension of the probationary period in
exchange for avoiding imminent revocation of probation and
imprisonment.
2
942 S.W.2d 289 (Ky. 1997).
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In the matter at bar, Huffines neither sought nor
received an extension of her probation beyond the five-year
period authorized by statute.
It was only after the end of her
statutorily authorized five-year probationary period that she
invoked the limiting language of KRS 533.020(1).
Huffines’s
reliance on KRS 533.020(1) is wholly proper and dispositive of
her claim of error.
Again, the statute limits revocation to
occurring during the probationary period.
Griffin has no
bearing on the resolution of Huffines’s claim of error, because
Griffin addressed the waiver of statutory protection arising
from the probationer’s willingness to extend the probationary
period beyond the authorized five-year period.
Probation
revocation should have occurred in the matter at bar, if at all,
before Huffines’s probationary period ended, and the circuit
court erred in failing to so rule.
Huffines’s remaining argument on the tolling issue is
moot.
It is worth noting, however, that the primary case relied
on by the Commonwealth on this issue, namely Sutherland v.
Commonwealth,3 does not hold that probation is tolled by the
probationer’s actions.
Rather, Sutherland holds that the
Department of Corrections must comply with the statutory
requirement that revocation proceedings be initiated within 90
3
910 S.W.2d 235 (Ky.App. 1995).
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days of the Department becoming aware of the basis for
revocation.
For the foregoing reasons, we reverse the order of the
Jefferson Circuit Court.
TACKETT, JUDGE, CONCURS.
HENRY, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
HENRY, JUDGE, DISSENTING:
I dissent.
To arrive at
its holding the majority effectively overrules Curtsinger v.
Commonwealth, 549 S.W.2d 515, (Ky. 1977), and seems to ignore
the plain language of KRS 533.050(1)(a), where it states:
(1) At any time before the discharge of the
defendant or the termination of the sentence
of probation or conditional discharge:
(a) The court may summon the defendant to
appear before it or may issue a warrant for
his arrest upon a finding of probable cause
to believe that he has failed to comply with
a condition of the sentence (Emphasis
added).
The majority’s holding that revocation of probation
must be completed prior to the expiration of the period in
essence gives probationers an indefinite “free” period at the
end of the sentence of probation or conditional discharge during
which the conditions may be violated with impunity, because it
is impossible to schedule and conduct the hearing, and issue the
ruling, before the expiration of the period.
perfect example of such abuse.
This case is a
When the defendant repeatedly
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appeared without a lawyer even though she was represented by
counsel in other simultaneous revocation proceedings, the trial
court graciously permitted her to delay her hearing until she
could appear with counsel.
Now we say that by doing so, the
trial court unwittingly permitted her to “beat the system”.
All that is required by fairness and our statutes and
cases is that proceedings be commenced prior to the expiration
of the period.
In this case revocation proceedings were
commenced two months before the defendant’s probation expired.
I would affirm the ruling of the trial court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barry M. Trifiletti
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Kevin Ricky Branscum
Assistant Attorney General
Frankfort, Kentucky
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