Opinion
NO. 2012-CA-000961-MR
01-03-2014
WILLIAM DISNEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: William Disney, Pro Se Pineville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
INDICTMENT NO. 10-CR-00059
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. CAPERTON, JUDGE: William Disney appeals from the May 8, 2011, order of the Oldham Circuit Court, which denied him shock probation. Disney has failed to show that the trial court acted outside its jurisdiction, thus, we affirm.
In 2010, Disney entered a guilty plea to one charge of burglary in the first degree and one charge of being a persistent felony offender in the second degree. He was sentenced to ten years' imprisonment. On February 24, 2011, through counsel, Disney filed a motion for shock probation. The motion was granted in an order entered on March 8, 2011. However, on March 11, 2011, a new order was entered in which the trial court acknowledged that the March 8, 2011, order had been entered in error. Accordingly, the March 8, 2011, order was set aside and the court directed the parties brief the issue of shock probation.
On October 10, 2011, Disney filed, pro se, a motion for reconsideration which was denied. Thereafter, Disney filed a motion for appointment of a conflict attorney and for the trial court to reinstate the March 8, 2011, order for shock probation. The trial court denied Disney's motion in an order entered on May 8, 2012, finding that Disney was not entitled to shock probation as a matter of law. This appeal followed.
On appeal, Disney does not challenge the trial court's May 8, 2012, determination that he is not entitled to shock probation. Instead, he argues that the trial court's March 11, 2011, order was an improper amendment to its March 8, 2011, order which initially granted him shock probation. We first note that Disney's appeal was filed more than thirty days after entry of the March 11, 2011, order and therefore appears untimely with respect to that order. Kentucky Rules of Civil Procedure (CR) 73.02(1)(a). "Compliance with the time requirements of CR 73.02 is mandatory." Stinson v. Stinson, 381 S.W.3d 333, 336 (Ky. App. 2012)(citation omitted).
Assuming, arguendo, that the March 11, 2011, order was interlocutory, Disney's argument is still without merit. Trial court orders "granting or denying a motion to suspend further execution of sentence [are] not reviewable." Kentucky Revised Statutes (KRS) 439.265(2). This Court has previously clarified that KRS 439.265(2) prohibits review on the merits of such an order but does not "deprive this court of its power to determine whether an order was within the jurisdiction of the circuit court as being within the authority granted by the statute." Commonwealth ex rel. Hancock v. Melton, 510 S.W.2d 250, 252 (Ky. 1974); Terhune v. Commonwealth, 907 S.W.2d 779 (Ky. App. 1995).
A court may, on its own initiative, amend its judgment no later than ten days after the entry of that judgment. CR 52.02. The trial court's March 8, 2011, order was amended three days after entry, well within the ten-day amendment period. Therefore, Disney has failed to show that the trial court acted outside its jurisdiction when it amended its March 8, 2011, order.
For the foregoing reasons, the May 8, 2011, order of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: William Disney, Pro Se
Pineville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky