GREEN (DANA ELAINE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 01-CR-00281
COMMONWEALTH OF KENTUCKY
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BEFORE: LAMBERT AND NICKELL, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Dana Green appeals the denial of her 60.02 motion to
amend the credit for time served on an order revoking her shock probation and
ordering her to serve her original five year sentence. After careful review, we
Senior Judge Michael L. Henry, sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110 (5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
Pursuant to a plea agreement with the Commonwealth in the instant
case, Dana pled guilty to trafficking in a controlled substance in the first degree,
endangering the welfare of a minor, and possession of marijuana. She was
sentenced to a total of five years’ imprisonment. On April 25, 2002, in Division I
of Daviess Circuit Court, Dana also pled guilty to criminal facilitation to commit
robbery and criminal facilitation to commit burglary. She was then sentenced to
another five year sentence, which the record indicates she understood was to be
served consecutively with her other sentence for a total sentence of ten years.
On July 8, 2002, Dana filed a motion for shock probation, which was
denied. On August 6, 2002, another motion for shock probation was filed and
denied. Finally, on September 12, 2002, Dana filed a third motion for shock
probation, which was granted. Dana was placed on probation for five years but
remained in custody pursuant to the five year sentence she had received in Division
I of Daviess Circuit Court. She was ultimately paroled and released from
incarceration on the Division I case fifteen months after being granted shock
probation in the instant case.
On October 25, 2006, Dana’s probation officer filed a supervision
report with the Daviess Circuit Court informing the court that Dana had been
arrested on both August 17, 2006, and September 6, 2006, for additional offenses.
The report also indicated that Dana had not yet obtained her GED, which was a
condition of her shock probation.
Based on this report, an arrest warrant was issued for Dana, and the
Commonwealth filed a motion to revoke probation. A hearing was conducted on
November 19, 2006. Dana did not contest the facts in the report regarding the new
offenses or her failure to acquire her GED. The parties then agreed that in lieu of
revocation, Dana would be found to be in contempt of court and would be
sentenced to ninety days for her probation violations. The Commonwealth
withdrew its motion for revocation, and the court entered an order sentencing Dana
to ninety days’ imprisonment.
On July 9, 2007, Dana’s probation officer filed another supervision
report with the Daviess Circuit Court, informing the court that Dana had again
been arrested on June 29, 2007, and July 2, 2007, for additional offenses. The
report also indicated that she had not attended GED classes during June 2007.
The Commonwealth filed a motion to revoke Dana’s probation, and
another arrest warrant was issued for Dana. A hearing was conducted on the
Commonwealth’s motion to revoke, and the motion was granted. Dana was resentenced to her original sentence of five years’ imprisonment. She was given
three days of jail time credit as reflected in her original judgment of conviction;
129 days of jail time credit for the time she was incarcerated until she was shock
probated; and 13 days of jail time credit for the time she served after being arrested
for the recent probation violation.
On September 10, 2007, Dana filed a CR 60.02 motion, asking the
court to reconsider its order revoking her shock probation. A hearing was held on
August 13, 2007, but Dana withdrew her motion to reconsider and altered her
motion to a request for additional credit for time served. She argued that when the
trial court granted her shock probation in the instant case, she remained
incarcerated on the five year sentence she had received on the separate charge from
the Division I case until she was paroled some fifteen months later. She
maintained that since she was never released from custody when she was granted
shock probation, she should receive credit on her sentence in the present case for
the fifteen months she remained incarcerated until she was paroled on the Division
I conviction. The trial court denied the request, and she now appeals.
We review a trial court's ruling denying a 60.02 motion for an abuse
of discretion. See Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998);
Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996); White v.
Commonwealth, 325 S.W.3d 83 (Ky.App. 2000). For a trial court to have abused
its discretion, its decision must have been arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Clark v. Commonwealth, 223 S.W.3d 90,
95 (Ky. 2007).
It is undisputed that Dana was sentenced to two separate five year
sentences to run consecutively with one another. She was probated on one, but not
the other. The disputed fifteen months served was time served on the Division I
case, not the instant case. If we were to find that this time counted as time served,
we would be in direct contravention of the trial court’s sentencing order that the
sentences were to run consecutively. We have to agree with the Commonwealth’s
argument that if Dana were to receive credit on her sentence in the instant case for
the fifteen months served on her Division I case’s sentence, she would in essence
be receiving double credit for her time. Therefore, we do not find the trial courts
denial either unfair or unsound.
As to the assertion that the ninety days Dana served as a result of her
first probation violations should count as time served, we find no merit in this
claim either. The court generously sentenced her to those ninety days for parole
violations instead of revoking her probation altogether. The ninety days was a
separate sentence from the original five year sentence, therefore to allow this time
to count as time served would again be giving Dana double credit on her time.
Accordingly, we do not find that the trial court abused its discretion,
and we affirm the denial of Dana’s 60.02 motion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Harned
Assistant Attorney General