Summary
In Delk v. Commonwealth, No. 2012-CA-001678-MR, 2014 WL 1778388, 1-2 (Ky. App. May 2, 2014) (unpublished), the Court held that language in an original judgment that made the defendant’s one year of probation "subject to the conditions below" which included the payment of restitution and made the completion of probation conditional on complying with the conditions of probation, did not indicate that the trial court made a factual finding that the defendant required a prolonged period of probation to complete paying restitution when he was originally probated.
Summary of this case from Commonwealth v. AdamsOpinion
NO. 2012-CA-001678-MR
05-02-2014
JOSHUA NOEL DELK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Margaret A. Ivie Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 07-CR-00673
OPINION
REVERSING AND REMANDING
BEFORE: LAMBERT, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Joshua Noel Delk appeals the denial of his CR 60.02 motion arguing the trial court lacked jurisdiction to revoke his probation after it was completed.
On April 4, 2008, Delk received a two and a half year sentence, probated for one year on four counts of criminal possession of a forged instrument, second degree. As a condition of his probation, Delk was required to pay $535 in restitution. Delk failed to pay restitution.
After Delk completed his probation on May 13, 2009, the Commonwealth filed a motion for issuance of a summons and sought revocation of probation on the justification that Delk's failure to pay restitution allowed continuing jurisdiction of the court pursuant to Jones v. Commonwealth, 2007-CA-000058-DG, 2008 WL 344182 (Ky.App. 2008) (unpublished). The Commonwealth agreed to forego revocation in exchange for Delk agreeing to a one year extension of probation and a new order of probation reflecting this extension was entered on July 30, 2009.
Less than a month before this new period of probation was due to expire on July 9, 2010, the Commonwealth obtained a bench warrant against Delk stating he violated his probation by failing to pay restitution. On September 2, 2010, the trial court revoked Delk's probation and imposed his original sentence.
Delk challenges this revocation under CR 60.02 arguing that because he completed probation in April 2008, the subsequent extension of his probationary period after it had expired was void and the trial court's subsequent revocation of the extended probation and imposition of his original sentence is void.
The Commonwealth argues Delk was not finally discharged because the original judgment imposed an indefinite term of probation so long as restitution remained unpaid, permitting an extension of the original term of his probation. The Commonwealth relies on the language in Delk's original judgment that made his one year of probation "subject to the conditions below," which included the payment of $535 in restitution and indicating completion of probation was conditional on Delk complying with the conditions of probation.
Under KRS 533.020(4), the trial court was authorized to impose up to a five-year period of probation for Delk's felonies which could be extended for "the time necessary to complete restitution[.]" It is well established that once a defendant's period of probation is finally discharged, the trial court no longer has jurisdiction to revoke probation or hold a revocation hearing. Commonwealth v. Wright, 415 S.W.3d 606, 612 (Ky. 2013); Conrad v. Evridge, 315 S.W.3d 313, 315-317 (Ky. 2010); Curtsinger v. Commonwealth, 549 S.W.2d 515, 516 (Ky. 1977).
Wright clarifies that although a trial court is authorized to extend the period of probation past the statutory maximums stated in KRS 533.020(4) for the time necessary to complete restitution, an extension is not automatic and must be authorized by a court order prior to the expiration of probation. Wright, 415 S.W.3d at 610-611. The statute provides "authorization for the trial court, through its fact-finding processes, to ascertain if payment of restitution will be completed within the fixed probationary period, and to extend the probationary period if an extension beyond that fixed period is 'necessary to complete restitution.'" Id. at 611.
If "the trial court can easily anticipate, even before fixing the period of probation, that restitution cannot be fully paid within the . . . period provided by the statute . . . KRS 533.020(4) authorizes the trial court to make such a finding and to fix in the original judgment a probationary period reflecting that reality[.]" Id. Wright discussed the unpublished opinion of Jones in which the initial judgment of conviction was fixed at "two years and/or until he made restitution" and indicated it seemed the trial court's extension of probation was built into the final judgment and thus authorized by the statute. Id. at 613.
There is no indication the trial court made a factual finding that Delk required a prolonged period of probation to complete paying restitution when it originally probated his sentence. Indeed, the judgment appears to indicate the opposite as Delk received a probationary sentence of one year, rather than the general maximum of five years. This interpretation is logical given the relatively small amount of restitution Delk owed.
The purpose of the probationary limit set out in KRS 533.020(4) "is to protect the convicted defendant from being subjected to a probationary status of indefinite duration" extended at the court's discretion. Commonwealth v. Griffin, 942 S.W.2d 289, 291 (Ky. 1997). To interpret the standard language of Delk's original judgment as requiring his probation to run for an indefinite period until he completed paying restitution would allow automatic extensions of the period of probation beyond the statutory limitation for any defendants who continue to owe restitution. This result is not authorized under KRS 533.020(4). Therefore, the original judgment should be interpreted as limiting Delk's period of probation to one year.
While Delk apparently negotiated for an extension of probation rather than revocation after the probationary period had expired, Delk could not waive the completion of his probation or imbue the trial court with the authority to extend it at that time. Compare with Griffin, 942 S.W.2d at 291 (determining the court had authority to extend the period of probation beyond the statutory cap pursuant to a knowing and voluntary waiver of the cap in exchange for avoiding revocation of probation when the trial court acted during the original period of probation). Consequently, the extension of probation was void.
Because the extension of probation was void, it is irrelevant whether its revocation was timely based on the issuance of the warrant before the extended probationary period expired. Therefore, the imposition of an incarcerative sentence upon revocation is also void.
Accordingly, we reverse and remand the McCracken Circuit Court's denial of Delk's motion for CR 60.02 relief.
STUMBO, JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Margaret A. Ivie
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky