CAISE (VINCENT) VS. REES (JOHN)
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RENDERED: AUGUST 21, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001949-MR
VINCENT CAISE
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 07-CI-01946
JOHN REES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Vincent Caise appeals from an order dismissing his
petition for declaratory judgment. Caise argues that his term of imprisonment has
been improperly calculated. We affirm.
1
Senior Judge William R. Harris 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.
Caise was convicted of various felony offenses in Fayette Circuit
Court on February 1, 1980, and was sentenced to twenty-five years of
imprisonment. On October 29, 1985, Caise was released on parole. During his
parole, Caise was charged and convicted of burglary, robbery, rape, sodomy, and
being a persistent felony offender. In its judgment entered on October 7, 1987, the
Fayette Circuit Court ordered that “the sentences imposed shall run concurrently
with each other and the total sentence of forty (40) years shall run consecutively
with any other previous felony sentence the defendant must serve.” The
Department of Corrections determined that the total length of Caise’s sentence was
sixty-five years.
Caise disagreed with the sentence calculation and after exhausting
administrative remedies, he filed a petition for declaratory judgment in Franklin
Circuit Court. The court dismissed the petition. This appeal followed.
Although Caise purports to characterize his argument in terms of
sentence calculation rather than concurrent or consecutive sentencing, the essence
of his argument is that the sentences imposed in 1980 and 1987 should run
concurrently under KRS 532.110(3) as it existed at the time of his 1987 sentencing.
At that time, KRS 532.110(3) provided:
When a defendant is sentenced to imprisonment for a
crime committed while on parole in this state such term
of imprisonment and any period of reimprisonment that
the board of parole may require the defendant to serve
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upon the revocation of his parole shall run concurrently,
unless the court orders them to run consecutively.
The Fayette Circuit Court specifically ordered Caise’s forty-year sentence to run
consecutively with any previous felony sentences. Moreover, KRS 533.060(2)
specifically addresses felonies committed while on parole and states:
When a person has been convicted of a felony and is
committed to a correctional detention facility and
released on parole . . . and is convicted or enters a plea of
guilty to a felony committed while on parole . . . the
period of confinement for that felony shall not run
concurrently with any other sentence.
Even if the Fayette Circuit Court had not ordered the sentences to run
consecutively, the language in KRS 533.060(2) is mandatory and controls over
KRS 532.110(2). Riley v. Parke, 740 S.W.2d 934, 935 (Ky. 1987). The reasoning
of Riley is equally applicable to KRS 532.110(3) as it existed at the time of Caise’s
sentence. The trial court did not err by dismissing the petition for declaratory
judgment.
For the foregoing reasons, the order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Vincent Caise, pro se
Burgin, Kentucky
Angela E. Cordery
Frankfort, Kentucky
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