Cassetty v. Kentucky
Annotate this CaseIn 2011, Appellant Tracey Cassetty was charged with felony theft by unlawful taking. He entered into a diversion agreement with several conditions, including his entering a guilty plea with a recommended sentence of five years, paying restitution that day, and remaining drug free and subject to random testing. The court also entered an order of referral to drug court. Although the court's orders did not state that completion of drug court was a condition of his diversion, the judge's statements during the entry of the plea made this condition clear. Cassetty's drug-court program was presided over by Judge Tyler Gill. As part of that program, Cassetty entered a rehabilitation facility. Unfortunately, he had difficulty with the facility and was released from it. He also failed at least one drug screen. As a result, he was discharged from drug court, setting in motion the process to revoke his diversion. Cassetty moved to recuse Judge Gill from the revocation proceeding, citing his presiding over the drug-court proceedings. Although the judge's previous practice had been to recuse in such cases, he denied the motion. He noted that the Judicial Ethics Committee had issued an opinion, JE-122, stating that it was not a breach of the judicial canons for a judge to preside over a defendant's drug-court program and a revocation hearing based on a violation of the terms of that program, unless the judge learned information outside the court process. In light of this opinion, the judge concluded that recusal would violate Canon 3B(1) (a "judge shall hear and decide matters assigned to the judge except those in which disqualification is required"). The issue this case presented for the Supreme Court's review centered on whether the notice of appeal, naming only an order denying a recusal motion and not the final judgment, substantially complied with the requirements of the Civil Rules so as to invoke the Court of Appeals' jurisdiction and avoid dismissal of the appeal. The Supreme Court concluded that it did not. "Simply put, a notice of appeal naming only an order denying a motion to recuse, and not a final judgment, is fatally defective. Neither the rule of substantial compliance nor its subsidiary rule of relation forward can salvage such a notice of appeal. As such, such a notice of appeal fails to invoke the jurisdiction of the appellate court, and the attempted appeal should be dismissed." Therefore, the order of the Court of Appeals dismissing Cassetty's appeal was affirmed.
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