Opinion
NO. 2013-CA-000528-MR
07-25-2014
DANNY R. SHARP APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Danny R. Sharp Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NO. 77-CR-01366
OPINION AND ORDER
DISMISSING APPEAL
BEFORE: JONES, MAZE, AND MOORE, JUDGES. MOORE, JUDGE: Danny R. Sharp appeals the Whitley Circuit Court's order denying his CR 60.02 motion for relief from the court's judgment convicting him of two counts of murder. After a careful review of the record, we dismiss this appeal because there is not a proper order before us to review.
Kentucky Rule of Civil Procedure.
Sharp was sixteen years old when a jury convicted him of two counts of murder. On April 15, 1977, judgment was entered against him, and he was sentenced to life imprisonment on each count of murder. Sharp appealed, and the Kentucky Supreme Court affirmed the circuit court's judgment. See Sharp v. Commonwealth, 559 S.W.2d 727 (Ky. 1977).
Ten years later, in 1987, Sharp filed his RCr 11.42 motion to vacate his sentence. His motion was denied by the circuit court that same year. He appealed, and this Court affirmed the circuit court's decision. The Kentucky Supreme Court subsequently denied Sharp's motion for discretionary review in 1988.
Sharp, acting pro se, filed a CR 60.02 motion twenty-two years later, in 2010. In August 2011, the Commonwealth filed its response to Sharp's CR 60.02 motion. Sharp filed his reply less than three weeks later.
In July 2012, Sharp moved to voluntarily dismiss without prejudice "any and all actions now pending [including the] herein CR 60.02" motion. The circuit court granted his motion and dismissed his CR 60.02 motion without prejudice on July 19, 2012.
It is not clear why, but approximately six months later, Sharp filed a response to the Commonwealth's "objection to [Sharp's] CR 60.02 [motion] to correct sentence," in which he asked the court "to dismiss [the Commonwealth's] Motions to Dismiss the now [p]ending CR 60.02 [motion] and further grant an evidentiary hearing." On February 19, 2013, the circuit court held that "the motion to dismiss with prejudice and CR 60.02 (e), (f) [motion] to correct sentence is overruled." Sharp subsequently moved for clarification of the court's order, contending that he had never filed a motion or a request for the court to dismiss his CR 60.02 motion with or without prejudice. He also appealed the court's decision denying his CR 60.02 motion, which is the subject of this appeal.
We note that although we are not making a factual finding on the matter, the signature on the motion to voluntarily dismiss the CR 60.02 motion certainly appears to be Sharp's.
It is well settled that "an order dismissing without prejudice 'fixed absolutely and finally the rights of the parties in this suit in relation to the subject matter of the litigation, and put an end to the suit. It was a final appealable order.'" See Commonwealth v. Sowell, 157 S.W.3d 616, 617 (Ky. 2005). Accordingly, the July 2012 order granting Sharp's motion to dismiss his CR 60.02 was a final order. Notwithstanding the finality of the circuit court's July 2012 order, Sharp did not move to vacate the order within ten days, nor did he appeal the order. See id. at 618 ("Where, as here, the criminal rules do not provide a time in which an action may be taken, the Rules of Civil Procedure apply. Under CR 59, a final judgment or order may be vacated only in accordance with the ten day provisions of the rule. Thereafter, the trial court loses jurisdiction to act. As such, a party has ten days after entry of a dismissal order, with or without prejudice, to move to set aside that order and continue prosecution under the original complaint, or timely appeal from the order of dismissal.") (Internal notes and citations omitted). Consequently, in the absence of a timely filed motion or notice of appeal, the circuit court lost jurisdiction to further act in this case ten days after entry of the July 2012 order. Thus, even if the circuit court construed Sharp's January 17, 2013 responsive filing wherein he asked the court "to dismiss [the Commonwealth's] Motions to Dismiss the now [p]ending CR 60.02 [motion] and further grant as evidentiary hearing" as a newly filed motion, the circuit court had lost jurisdiction over the case by that time. See id. Accordingly, the circuit court did not have subject matter jurisdiction over this matter when it entered its February 19, 2013 order from which Sharp has appealed.
We see the absurdity in stating that Sharp should have moved to vacate or filed a timely notice of appeal of an order granting the relief he requested. Nonetheless, that is the procedural posture of this case and what Sharp should have timely sought to avoid the inevitable conclusion of this matter.
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The issue of subject matter jurisdiction can be raised sua sponte at any time. See Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky. App. 2005). Because the matter was dismissed by the circuit court and Sharp did not move to vacate it within ten days of the date the order dismissing the action was entered or timely appeal it, the circuit court did not have jurisdiction to enter the February 19, 2013 order appealed from in this case. Thus, there is not a proper order from the circuit court for this Court to review, and we therefore do not have subject matter jurisdiction over this case.
For the reasons as stated, this appeal is hereby ordered to be DISMISSED.
ALL CONCUR. ENTERED: July 25, 2014 /s/ /Joy A. Moore
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Danny R. Sharp
Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky