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Carter v. Commonwealth

Court of Appeals of Kentucky
Dec 17, 1965
397 S.W.2d 165 (Ky. Ct. App. 1965)

Opinion

December 17, 1965.

Appeal from the Circuit Court, Fayette County, Joseph J. Bradley, J.

Frank Carter, in pro. per.

Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.


The trial court overruled, without a hearing, the motion of Frank Carter under RCr 11.42 to vacate the judgment of conviction under which he is serving a 21-year sentence for armed assault with intent to rob. Carter has appealed.

The motion asserted that Carter was charged with armed robbery, for which the only permissible penalties are life imprisonment or death, and that the 21-year sentence therefore is void. However, the record of the trial completely refutes this — it shows that the indictment was for assault with a deadly weapon with intent to rob. That the indictment may have been defective in form would not be a ground for relief under RCr 11.42. King v. Commonwealth, Ky., 387 S.W.2d 582.

The trial court properly overruled the motion.

Carter had made a previous motion to set aside the judgment, which had been overruled. He seems to be under the impression that the present appeal embraces that ruling. It does not. However, we have examined the previous motion and we find nothing in it that would have entitled Carter to a hearing.

The judgment is affirmed.


Summaries of

Carter v. Commonwealth

Court of Appeals of Kentucky
Dec 17, 1965
397 S.W.2d 165 (Ky. Ct. App. 1965)
Case details for

Carter v. Commonwealth

Case Details

Full title:Frank CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee

Court:Court of Appeals of Kentucky

Date published: Dec 17, 1965

Citations

397 S.W.2d 165 (Ky. Ct. App. 1965)

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