ROLLINS (WILLIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000074-MR
WILLIE ROLLINS
v.
APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 99-CR-00032 & 99-CR-00043
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; HENRY, SENIOR JUDGE.
WINE, JUDGE: Appellant Willie Rollins (“Rollins”) directly appeals from two
final and appealable orders of the McCreary Circuit Court: (1) an Order Setting
Restitution; and (2) an Order Overruling Motion to Reconsider Order Setting
Restitution. Rollins contends that the trial court lacked jurisdiction to order him to
pay restitution in the amount of $183,317.50. We agree.
Factual History
On November 25, 2000, Rollins pled guilty to eight counts of thirddegree arson, one count of criminal facilitation to the crime of second-degree
arson, three counts of setting fire to lands owned by another, and one count of theft
by unlawful taking under $300.00. In a separate case, Rollins also pled guilty to
another count of setting fire to lands owned by another. He received sentences of
ten years and one year, respectively, which were to run concurrently for a total of
ten years. Final judgments were entered in both cases on November 30, 2000. The
final judgments provided that Rollins would pay restitution with “the amount of
full restitution to be determined.”
Although the judgments specified that the amount of restitution would
be determined at a later date, a hearing was not held thereafter. Rather, nearly
seven years later, once Rollins had “served out” his sentence, the Commonwealth
filed a motion to establish the amount of damages. Rollins argued at the “hearing”1
on November 19, 2007, that undue delay of nearly seven years precluded the court
from setting restitution. He cited Green v. Commonwealth, 400 S.W.2d 206 (Ky.
1966), for the proposition that waiting for a period of longer than five years to set
restitution was undue delay. He further cited to McMurray v. Commonwealth, 682
S.W.2d 794 (Ky. App. 1985), for the proposition that the trial court lacked
authority to enter an order setting restitution because the trial court lost jurisdiction
ten days after the entry of final judgment. The Commonwealth countered that the
1
We put the word “hearing” in quotes here as it appears that no witnesses testified at this
proceeding and no evidence was introduced.
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final judgment specifically left the amount of restitution “to be determined,” which
was sufficient to allow the court to set restitution at a later date. The
Commonwealth provided no authority for its position at the “hearing”. Although
no witnesses testified at the “hearing” on November 19, 2007, the trial court agreed
with the Commonwealth and set restitution at $183,317.50, payable at a rate of
$100.00 per month.
On November 27, 2007, Rollins filed a motion to reconsider and
requested a full hearing on the motion. The judge refused to grant a full hearing
but allowed both parties to briefly restate their positions. The Commonwealth
conceded at that time that representatives from the insurance company had been
present at the first hearing and that the amount of restitution sought was equal to
the amount paid by the insurance company.2 The judge denied Rollins’s motion to
reconsider. Rollins now appeals from these orders.
Analysis
2
Such a concession creates an additional issue which, while not directly raised on appeal or
during either hearing, supports the appellant’s position that the trial court should have conducted
a full hearing on the matter. Specifically, Kentucky Revised Statute (“KRS”) 532.032(1)
provides, “[r]estitution to a named victim, if there is a named victim, shall be ordered in a
manner consistent, insofar as possible, with the provisions of this section and KRS 439.563,
532.033, 533.020, and 533.030 in addition to any other part of the penalty for any offense under
this chapter.” (Emphasis added). In Clayborn v. Commonwealth, 701 S.W.2d 413 (Ky. App.
1985), this Court held that the trial court abused its discretion by ordering the defendant to pay
restitution for the victim’s medical expenses which exceeded the amount actually paid by the
victim. The Court recognized that the victim’s insurance company had paid for at least part of
the medical expenses and that any amount paid by the insurance company was not properly
included in the restitution amount as an insurance company is “not a reimbursable entity under
the statute.” Id. at 416. See also OAG 94-57 (Stating that an insurer is not a “victim” under
KRS 533.030 or a “person aggrieved” under KRS 431.200). Although we reverse on other
grounds, this would have provided an additional ground for reversal.
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Rollins argues on appeal that he was denied due process of law when
the trial court entered an order setting restitution in violation of the procedures set
forth in KRS 431.200. KRS 431.200 requires that a verified petition for restitution
be made within ninety days of sentencing. The Commonwealth claims that it was
proceeding under KRS 532.032 rather than KRS 431.200. The Commonwealth
further contends that the order imposing restitution was not a post-sentencing
order, but rather, an order simply specifying the amount of restitution to be paid,
such restitution having already been ordered. We disagree.
This Court has stated that, “KRS 532.032 . . . is now the generally
applicable criminal restitution statute.” Fields v. Commonwealth, 123 S.W.3d 914,
916 (Ky. App. 2003). However, in cases where KRS 431.200 is applicable, it
“continues to provide an alternative procedure for a post-sentencing restitution
order.” Id. Although KRS 532.032 and KRS 532.033 are the general sentencing
statutes, they do not encompass restitution orders which are sought postsentencing. Further, KRS 532.033(3) makes clear that an order of restitution must
“set the amount of restitution to be paid.” Here, the trial court failed to set the
amount of restitution or the amount and frequency of payments. Thus, the final
judgment did not succeed in creating a valid restitution order.
KRS 431.200 controls the imposition of restitution, post-sentencing.
It reads as follows:
Any person convicted of a misdemeanor or felony for
taking, injuring or destroying property shall restore the
property or make reparation in damages if not ordered as
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a condition of probation. The court in which the
conviction is had, if applied to by verified petition made
within ninety (90) days of the date the sentence was
pronounced, may order restitution or give judgment
against the defendant for reparation in damages, and
enforce collection by execution or other process. In a
petition for restitution or reparation, the court shall cause
the defendant, if in custody, to be brought into court, and
demand of him if he has any defense to make to the
petition. If he consents to the restitution or to reparation
in damages in an agreed sum, the court shall give
judgment accordingly. Otherwise a jury shall be
impaneled to try the facts and ascertain the amount and
the value of the property, or assess the damage, as the
case may be. A failure to pursue this remedy shall not
deprive the person aggrieved of his civil action for the
injury sustained.
The statute states plainly that a verified petition for restitution must be made within
ninety days of the date the sentence was pronounced. In this case, the
Commonwealth failed to file a verified petition within ninety days of Rollins’s
conviction and sentence. Moreover, Rollins was not “in custody” at the time the
motion was filed. Further, the Court did not impanel a jury when Rollins did not
consent to the amount of restitution.3
Although the plea agreement in this case included language that
Rollins would agree to pay restitution, this is not sufficient to constitute an order of
restitution. Rather, the mention of restitution in the plea agreement, at best,
indicated that a restitution claim would be forthcoming from the Commonwealth.
However, the Commonwealth failed to file a verified petition (or any motion to set
3
Contrary to the Commonwealth’s position, we are not persuaded that Rollins consented to the
amount of restitution. Rather, Rollins’ counsel requested documentation thereof and the
opportunity for a full hearing thereon.
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restitution) either before sentencing or within ninety days of sentencing. This
failure on the part of the Commonwealth could not be salvaged some seven years
later via a “motion to establish damages.”
At the time the Commonwealth filed its motion, the trial court no
longer had jurisdiction over Rollins. See, e.g., Silverburg v. Commonwealth, 587
S.W.2d 241, 244 (Ky. 1979) (Noting that a trial court loses jurisdiction over the
defendant’s case ten days after the entry of final judgment). A court loses
jurisdiction ten days after the entry of final judgment, and such jurisdiction can
only be renewed or extended by statute or rule. Indeed, a trial court’s authority to
order a defendant into court for the purpose of restitution is strictly statutory. KRS
431.200; KRS 532.032, et. seq. As there is no applicable statute which would have
extended jurisdiction to the court in this circumstance, it was acting without
jurisdiction. As KRS 431.200 is the only statute dealing with post-sentencing
orders of restitution, its mandates must be met in order for the trial court to have
jurisdiction. Here, a verified petition was not made, nor was the petition made
within ninety days after sentencing, nor was Rollins in custody at the time of the
order. As none of these requirements were met, the court had no authority to
impose restitution upon Rollins.4
4
We note that our result may have been different were we dealing with a case involving
probation or an alternative sentence instead of imprisonment, as KRS 533.020 provides that a
trial court can modify or enlarge the conditions of probation at any time prior to the expiration of
the alternative sentence. Here, there was no such statutory language extending jurisdiction, and
furthermore, Rollins had served out his sentence and was no longer in custody.
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Finally, we note that Kentucky Rule of Criminal Procedure (“RCr”)
10.10 is inapplicable to the present situation because the failure to properly order
restitution was a judicial error rather than a clerical one. RCr 10.10 states that:
Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or
omission may be corrected by the court at any time on its
own initiative or on the motion of any party. . . .
Thus, a court has jurisdiction to correct clerical mistakes in judgments or orders at
any time after such error is discovered. However, our Courts have clearly defined
the distinction between clerical and judicial errors. As stated in Cardwell v.
Commonwealth, 12 S.W.3d 672, 680 (Ky. 2000), “‘[c]lerical errors are universally
defined by both courts and textwriters as inadvertences or oversights by the maker
of the record (usually the clerks), and which are apparent on the face of the
document or record in which they appear.” Id. For example, errors involving
mistaken dates or mathematical errors are clerical. Id. at 679-680. On the other
hand, however, “mistakes involving matters of substance are considered judicial
errors.” Id. at 680. In this case, it is clear that the judge (and the Commonwealth)
mistakenly believed that the court could order restitution without specifying an
amount to be paid (and that such amount could be supplemented at any point in the
future). As such, the error is one of substance and is not correctable under RCr
10.10.
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Accordingly, we reverse the order of the McCreary Circuit Court
setting restitution. We note, as an aside, that KRS 431.200 makes clear that the
victims of Rollins’s crimes are not precluded civil recourse.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shelly R. Fears
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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