Opinion
NO. 2014-CA-001444-DG
02-19-2016
DAVID J. MOORE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John Gerhart Landon Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Nicholas Marsh Carrollton, Kentucky
NOT TO BE PUBLISHED ON DISCRETIONARY REVIEW FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 14-XX-00004 OPINION
VACATING & REMANDING BEFORE: COMBS, KRAMER, AND STUMBO, JUDGES. COMBS, JUDGE: David Moore appeals the order of the Carroll Circuit Court which upheld imposition of fines by the Carroll District Court. After our review, we vacate and remand.
Moore was arrested for criminal mischief in the third degree and driving under the influence, first offense, on April 11, 2013. The court appointed counsel for Moore, but he asked to exercise his right to represent himself. Moore and the court agreed on hybrid representation. Appointed counsel conducted all pretrial procedures but remained on standby for the trial. Moore, however, represented himself at the jury trial on May 16, 2014.
The jury acquitted Moore of the criminal mischief charge but found him guilty of the DUI. He was not sentenced to any period of incarceration. However, the court ordered him to pay $575.00 in fines. Moore appealed the imposition of fines to the Carroll Circuit Court, which affirmed. Moore then appealed to this Court, and we granted discretionary review.
DUI, first offense is a misdemeanor. KRS 189A.010(5)(a). KRS 534.040 governs impositions of fines for misdemeanors. It includes the mandatory provision that the fines " shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31." KRS 534.040(4). (Emphasis added).
Kentucky Revised Statutes. --------
KRS 31.100(5) equates needy with indigent. KRS 31.110(1) provides that a needy (indigent) person is entitled to a public defender. A person who is represented by appointed counsel at sentencing is statutorily presumed to be a needy (i.e., indigent) person. KRS 31.120(1)(c).
In this case, the facts demonstrate that Moore falls within the exception to the imposition of fines. At his arraignment, the court determined that he qualified for appointed counsel. Although Moore chose to represent himself at trial, he never wholly relinquished appointed representation. At the time of sentencing, he was still represented by the public defender who assisted with his trial. Therefore, in the words of our Supreme Court, "we may assume that the trial judge had already determined that the appellant was indigent. For this reason, imposition of any fine was inappropriate . . . ." Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky. 1994).
Under these circumstances, we are compelled to vacate the order of the Carroll Circuit Court and remand this case to the district court for a new order consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: John Gerhart Landon
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General Nicholas Marsh
Carrollton, Kentucky