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532.080 Persistent felony offender sentencing.
(1)
(2)
(3)
When a defendant is found to be a persistent felony offender, the jury, in lieu of
the sentence of imprisonment assessed under KRS 532.060 for the crime of
which such person presently stands convicted, shall fix a sentence of
imprisonment as authorized by subsection (5) or (6) of this section. When a
defendant is charged with being a persistent felony offender, the determination
of whether or not he is such an offender and the punishment to be imposed
pursuant to subsection (5) or (6) of this section shall be determined in a
separate proceeding from that proceeding which resulted in his last conviction.
Such proceeding shall be conducted before the court sitting with the jury that
found the defendant guilty of his most recent offense unless the court for good
cause discharges that jury and impanels a new jury for that purpose.
A persistent felony offender in the second degree is a person who is more than
twenty-one (21) years of age and who stands convicted of a felony after having
been convicted of one (1) previous felony. As used in this provision, a previous
felony conviction is a conviction of a felony in this state or conviction of a crime
in any other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one (1) year or more or a
sentence to death was imposed therefor; and
(b) That the offender was over the age of eighteen (18) years at the time the
offense was committed; and
(c) That the offender:
1.
Completed service of the sentence imposed on the previous felony
conviction within five (5) years prior to the date of commission of the
felony for which he now stands convicted; or
2.
Was on probation, parole, postincarceration supervision, conditional
discharge, conditional release, furlough, appeal bond, or any other
form of legal release from any of the previous felony convictions at
the time of commission of the felony for which he now stands
convicted; or
3.
Was discharged from probation, parole, postincarceration
supervision, conditional discharge, conditional release, or any other
form of legal release on any of the previous felony convictions within
five (5) years prior to the date of commission of the felony for which
he now stands convicted; or
4.
Was in custody from the previous felony conviction at the time of
commission of the felony for which he now stands convicted; or
5.
Had escaped from custody while serving any of the previous felony
convictions at the time of commission of the felony for which he now
stands convicted.
A persistent felony offender in the first degree is a person who is more than
twenty-one (21) years of age and who stands convicted of a felony after having
been convicted of two (2) or more felonies, or one (1) or more felony sex
crimes against a minor as defined in KRS 17.500, and now stands convicted of
any one (1) or more felonies. As used in this provision, a previous felony
conviction is a conviction of a felony in this state or conviction of a crime in any
(4)
(5)
(6)
other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one (1) year or more or a
sentence to death was imposed therefor; and
(b) That the offender was over the age of eighteen (18) years at the time the
offense was committed; and
(c) That the offender:
1.
Completed service of the sentence imposed on any of the previous
felony convictions within five (5) years prior to the date of the
commission of the felony for which he now stands convicted; or
2.
Was on probation, parole, postincarceration supervision, conditional
discharge, conditional release, furlough, appeal bond, or any other
form of legal release from any of the previous felony convictions at
the time of commission of the felony for which he now stands
convicted; or
3.
Was discharged from probation, parole, postincarceration
supervision, conditional discharge, conditional release, or any other
form of legal release on any of the previous felony convictions within
five (5) years prior to the date of commission of the felony for which
he now stands convicted; or
4.
Was in custody from the previous felony conviction at the time of
commission of the felony for which he now stands convicted; or
5.
Had escaped from custody while serving any of the previous felony
convictions at the time of commission of the felony for which he now
stands convicted.
For the purpose of determining whether a person has two (2) or more previous
felony convictions, two (2) or more convictions of crime for which that person
served concurrent or uninterrupted consecutive terms of imprisonment shall be
deemed to be only one (1) conviction, unless one (1) of the convictions was for
an offense committed while that person was imprisoned.
A person who is found to be a persistent felony offender in the second degree
shall be sentenced to an indeterminate term of imprisonment pursuant to the
sentencing provisions of KRS 532.060(2) for the next highest degree than the
offense for which convicted. A person who is found to be a persistent felony
offender in the second degree shall not be eligible for probation, shock
probation, or conditional discharge, unless all offenses for which the person
stands convicted are Class D felony offenses which do not involve a violent act
against a person, in which case probation, shock probation, or conditional
discharge may be granted. A violent offender who is found to be a persistent
felony offender in the second degree shall not be eligible for parole except as
provided in KRS 439.3401.
A person who is found to be a persistent felony offender in the first degree
shall be sentenced to imprisonment as follows:
(a) If the offense for which he presently stands convicted is a Class A or
Class B felony, or if the person was previously convicted of one (1) or
more sex crimes committed against a minor as defined in KRS 17.500
and presently stands convicted of a subsequent sex crime, a persistent
felony offender in the first degree shall be sentenced to an indeterminate
term of imprisonment, the maximum of which shall not be less than twenty
(20) years nor more than fifty (50) years, or life imprisonment, or life
imprisonment without parole for twenty-five (25) years for a sex crime
committed against a minor;
(b) If the offense for which he presently stands convicted is a Class C or
Class D felony, a persistent felony offender in the first degree shall be
sentenced to an indeterminate term of imprisonment, the maximum of
which shall not be less than ten (10) years nor more than twenty (20)
years.
(7) A person who is found to be a persistent felony offender in the first degree
shall not be eligible for probation, shock probation, or conditional discharge,
unless all offenses for which the person stands convicted are Class D felony
offenses which do not involve a violent act against a person or a sex crime as
that term is defined in KRS 17.500, in which case, probation, shock probation,
or conditional discharge may be granted. If the offense the person presently
stands convicted of is a Class A, B, or C felony, the person shall not be eligible
for parole until the person has served a minimum term of incarceration of not
less than ten (10) years, unless another sentencing scheme applies. A violent
offender who is found to be a persistent felony offender in the first degree shall
not be eligible for parole except as provided in KRS 439.3401.
(8) A conviction, plea of guilty, or Alford plea under KRS 218A.1415 shall not
trigger the application of this section, regardless of the number or type of prior
felony convictions that may have been entered against the defendant. A
conviction, plea of guilty, or Alford plea under KRS 218A.1415 may be used as
a prior felony offense allowing this section to be applied if he or she is
subsequently convicted of a different felony offense.
(9) The provisions of this section amended by 1994 Ky. Acts ch. 396, sec. 11,
shall be retroactive.
(10) (a) Except as provided in paragraph (b) of this subsection, this section shall
not apply to a person convicted of a criminal offense if the penalty for that
offense was increased from a misdemeanor to a felony, or from a lower
felony classification to a higher felony classification, because the
conviction constituted a second or subsequent violation of that offense.
(b) This subsection shall not prohibit the application of this section to a
person convicted of:
1.
A felony offense arising out of KRS 189A.010, 189A.090, 506.140,
508.032, 508.140, or 510.015; or
2.
Any other felony offense if the penalty was not enhanced to a higher
level because the Commonwealth elected to prosecute the person
as a first-time violator of that offense.
Effective:July 12, 2012
History: Amended 2012 Ky. Acts ch. 156, sec. 19, effective July 12, 2012. -Amended 2011 Ky. Acts ch. 2, sec. 26, effective June 8, 2011. -- Amended 2006
Ky. Acts ch. 182, sec. 45, effective July 12, 2006. -- Amended 1998 Ky. Acts
ch. 606, sec. 76, effective July 15, 1998. -- Amended 1996 Ky. Acts ch. 247,
sec. 1, effective April 4, 1996. -- Amended 1994 Ky. Acts ch. 396, sec. 11,
effective July 15, 1994. -- Amended 1982 Ky. Acts ch. 241, sec. 1, effective July
15, 1982. -- Amended 1978 Ky. Acts ch. 78, sec. 6, effective June 17, 1978. -Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 474, effective January 2,
1978. -- Amended 1976 Ky. Acts ch. 180, sec. 1, effective June 19, 1976. -Created 1974 Ky. Acts ch. 406, sec. 280, effective January 1, 1975.
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