Request By:
Thomas L. Waller, Esquire
Commonwealth's Attorney
202 Doctors Alley
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
This is in reply to your request for an Opinion relating to the following fact situation:
When a defendant is brought before a Magistrate on a felony charge and the Magistrate amends the charge to a misdemeanor over which he would have jurisdiction and proceeds to try the defendant on the misdemeanor charge, would this action prevent a later indictment of the defendant on the felony charge and constitute double jeopardy?
RCr 3.04 dictates that a magistrate must have jurisdiction of the offense charged before he may proceed with trial - otherwise he may only hold a preliminary hearing to determine if there is probable cause to believe that an offense has been committed by the defendant. OAG 72-823 and 73-18, copies enclosed, respectively concluded that neither a justice of the peace nor a county judge could try a felony case or attempt to change a felony offense to a misdemeanor and thereby assume jurisdiction of the case. In such situations magistrates only have examining jurisdiction as described in RCr 3.04.
However, if a magistrate were erroneously to change a felony charge to a misdemeanor or amend a felony to a lesser included offense of misdemeanor status, and proceed to convict or acquit on that amended charge, we conclude that such proceedings would be null and void.
Annot., 4 A.L.R. 3d 874 (1965), discusses those court decisions considering the problem of whether a conviction or acquittal on a minor charge in an inferior court having no jurisdiction over a greater charge bars a subsequent prosecution in a superior court on the greater charge, both offenses arising out of the same set of facts. There is indeed case conflict, but it appears that the majority viewpoint is that the prior acquittal or conviction of the defendant, in an inferior court having no jurisdiction of the greater offense with which he is later charged, on a lesser included or minor offense, shall serve as no bar to prevent the subsequent prosecution of the defendant in a superior court having jurisdiction of at least the greater offense, even where both offenses have arisen from the same factual situation or transaction. We adopt this view as dispositive of your first inquiry, because the magistrate did not have jurisdiction to try the charge which he has incorrectly manipulated, and therefore the accused was not placed in double jeopardy. (Although we find no Kentucky cases directly on point, see the cases so holding cited in the Supplement in the above referenced Annotation.)
In Waller v. Florida, 397 U.S. 387 (1970), which is discussed in the accompanying Annot., 25 L.Ed 2d 968 (1970), it was held that a state trial based upon the same acts as an earlier municipal court conviction for lesser included offenses constituted double jeopardy. There Mr. Waller was convicted in municipal court for violating two ordinances prohibiting destruction of city property and disorderly breach of peace, and on the basis of these same facts, was then convicted of grand larceny in a higher court, the second conviction being for a felony. It is to be carefully noted that the lower court had competent jurisdiction to try and convict for violation of ordinances and therefore we do not feel as if Waller, supra is controlling in your factual situation.
Your second question is phrased as follows:
If the County Attorney, with the agreement of the Magistrate, were to amend a felony charge as instituted by a peace officer, would the Court have jurisdiction to try the defendant for a misdemeanor and would the conviction be a bar to a subsequent prosecution for a felony based on the same set of of facts?
We conclude that the county attorney, even with the agreement and advice of the magistrate, has no authority to amend a felony charge. Consent of the parties will not confer jurisdiction in such a case. 22 C.J.S., Criminal Law, § 147, p.393. The proceedings would therefore be void, and our initial Opinion, supra, is therefore apropos.