Opinion
NO. 2016-CA-000480-MR
10-20-2017
DANNY R. SHARP APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Danny R. Sharp, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear 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NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT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
REVERSING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES. THOMPSON, JUDGE: Danny R. Sharp appeals the order of the Whitley Circuit Court dismissing his Kentucky Rules of Civil Procedure (CR) 60.02 motion for relief from the court's judgment convicting him of two counts of murder. The circuit court dismissed the motion for lack of jurisdiction. We reverse and remand for the circuit court to consider Sharp's motion.
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 given two life sentences. The Supreme Court of Kentucky later affirmed Sharp's convictions and sentences. 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 and this Court affirmed the denial. Sharp v. Commonwealth, No. 87-CA-002429 (Ky.App. 1987) (unreported and unpublished). The Kentucky Supreme Court subsequently denied discretionary review.
Sharp, acting pro se, sought relief pursuant to CR 60.02 twenty-two years later, in 2010. In August 2011, the Commonwealth filed its response to Sharp's motion, and Sharp filed his reply less than three weeks later.
In July 2012, Sharp moved to voluntarily dismiss "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.
Approximately six months later, on January 17, 2013, Sharp filed a response to the Commonwealth's motion to dismiss his CR 60.02 motion with prejudice and asked the circuit court to proceed on his pending CR 60.02 motion and grant an evidentiary hearing. On February 19, 2013, the circuit court denied the Commonwealth's motion to dismiss with prejudice and denied Sharp's CR 60.02 motion.
Sharp appealed the circuit court's order, and this Court dismissed the appeal for lack of subject matter jurisdiction. This Court held that the July 2012 order dismissing Sharp's CR 60.02 motion was final and, therefore, the later February 2013 order had no effect. Sharp v. Commonwealth, No. 2013-CA-000528-MR, 2014 WL 3721302, 1 (Ky.App. 2014) (unpublished).
Sharp filed his current CR 60.02 motion on February 8, 2016. In his motion, he asserted the Commonwealth failed to prove at trial every element of murder—one of the claims he raised in his original CR 60.02 motion. The circuit court dismissed Sharp's motion with prejudice, concluding it no longer had jurisdiction over the case. This appeal followed.
Sharp's sole argument on appeal is that the circuit court erred when it concluded that it did not have jurisdiction to rule on his CR 60.02 motion. Jurisdictional issues are a matter of law, which we review de novo. Commonwealth v. Handi-Van, Inc., 358 S.W.3d 504, 505 (Ky. 2012).
We agree the circuit court had jurisdiction to rule on Sharp's CR 60.02 motion. CR 60.02 states:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.
Generally, a circuit court has jurisdiction to rule on a properly filed CR 60.02 motion. A properly filed motion is one which is filed in a court having subject matter jurisdiction and exercising personal jurisdiction over the parties to the action. Toyota Motor Mfg., Kentucky, Inc. v. Johnson, 323 S.W.3d 646, 650 (Ky. 2010). The Kentucky Supreme Court has recognized only two circumstances in which a circuit court does not have jurisdiction to rule on such motions:
First, as to subsections (a) through (c) of CR 60.02, some authority would suggest that a trial court lacks jurisdiction to reopen a judgment under these subsections if a year or more has passed since entry of judgment. Second, our opinion in Asset Acceptance[, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007),] suggests that the trial court would lack jurisdiction to reopen a judgment essentially on CR 60.02(a)-(c) grounds if the CR 60.02 motion was not filed within one year of the judgment even if the CR 60.02 motion were filed under the guise of CR 60.02(f).Id. (footnotes omitted).
Sharp filed his CR 60.02 motion in the court with subject matter jurisdiction over his case and which was capable of exercising personal jurisdiction. Moreover, his motion was filed pursuant to CR 60.02(f), and the grounds on which he wishes to reopen his case do not appear to be premised on any grounds covered by subsections (a), (b), or (c) of CR 60.02, such as perjury, fraud, newly discovered evidence, excusable neglect, or mistake. Therefore, the circuit court had jurisdiction to rule on Sharp's CR 60.02 motion.
The circuit court believed it lacked jurisdiction over Sharp's CR 60.02 motion because it dismissed Sharp's previous CR 60.02 motion without prejudice and Sharp failed to appeal from that dismissal. Therefore, the order of dismissal became final. Respectfully, the circuit court was mistaken. A dismissal without prejudice is a final and appealable order and Sharp's failure to move the court to vacate or to file a notice of appeal meant that the court lost jurisdiction over that proceeding after ten days. Commonwealth v. Sowell, 157 S.W.3d 616, 617-18 (Ky. 2005); CR 59.05. However, the circuit court only lost jurisdiction over that particular proceeding. Sharp's subsequent CR 60.02 motion was a new proceeding, which fell within the circuit court's power to rule.
We dismissed for lack of jurisdiction Sharp's earlier attempt to raise his issues because he was attempting to revive his previous motion. However, after a motion has been dismissed, a party has ten days to move the circuit court to set aside the order. Sowell, 157 S.W.3d at 618. After that, the circuit court loses jurisdiction over the case. Id. Sharp did not move to vacate or appeal the dismissal; therefore, the order became final. Consequently, we dismissed Sharp's appeal because we held that the circuit court did not have jurisdiction over the previous motion more than six months after it became final.
In contrast, the motion on which the present appeal is taken was not an attempted continuation of Sharp's previous motion under CR 60.02, but a new motion. The circuit court dismissed Sharp's prior CR 60.02 motion without prejudice. A dismissal without prejudice is not an adjudication on the merits. It means "[r]emoved from the court's docket in such a way that the plaintiff may refile the same suit on the same claim." Sowell, 157 S.W.3d at 617 (quoting Black's Law Dictionary (8th ed. 2004)). While the order dismissing Sharp's previous CR 60.02 motion was final and any action under that motion was beyond the court's jurisdiction, Sharp was not precluded from raising his issues in a new process, i.e., a new motion made pursuant to CR 60.02. In Sowell, 157 S.W.3d at 618, the Court explained that a dismissal without prejudice is a final order, which did not preclude the Commonwealth from timely bringing a new charge and issuing new process. Therefore, the circuit court had jurisdiction to rule on Sharp's new, properly filed, motion.
The Commonwealth argues that the circuit court reached the correct decision because Sharp's motion was untimely. It may be true the motion was untimely. However, whether a CR 60.02(f) motion was filed within a reasonable time is committed to the sound discretion of the circuit court. Therefore, a delay in filing a motion pursuant to CR 60.02(f) does not deprive the circuit court of jurisdiction to rule on the merits of the case, or to rule that the claim is barred by laches.
The Commonwealth also argues that Sharp could have raised his concerns in his direct appeal or in his RCr 11.42 motion. It contends we should uphold the circuit court's decision because it reached the right result, albeit for the wrong reason. The Commonwealth is correct in its assertion that we are obligated to uphold a lower court decision even if the lower court achieved the right result for the wrong reason. Jarvis v. Commonwealth, 960 S.W.2d 466, 469 (Ky. 1998). However, the circuit court determined it did not have jurisdiction to rule on Sharp's 60.02 motion, so we have no decision to uphold.
For the foregoing reasons, we reverse and remand the Whitley Circuit Court's order dismissing Sharp's CR 60.02 motion.
CLAYTON, JUDGE, CONCURS.
KRAMER, CHIEF JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Danny R. Sharp, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky