Request By:
Morris Lowe, Esq.
Commonwealth's Attorney
Eighth Judicial District
1032 College Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that you have obtaind several convictions in drug cases (presumably under KRS Chapter 218A) where the defendants were fined as much as $5,000. You say that the judge has been probating the fines and your question is whether a judge may probate a felony fine.
Most of the material dealing with probation, formerly contained in KRS Chapter 439 has been repealed, and it is now found in KRS Chapter 533 (Probation and Conditional Discharge) . KRS 532.005 provides that KRS Chapters 532, 533 and 534 apply to all classes of crimes committed outside the provisions of the penal code. KRS 532.040 states in part that when a person is convicted of an offense, other than a capital offense, the court, where authorized by KRS Chapter 533, may sentence such person to a period of probation or to a period of conditional discharge as provided in that chapter. KRS 533.010 provides that any person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation or conditional discharge as provided in that chapter.
The word "probation" is not defined in the Kentucky Penal Code but in 24 C.J.S. Criminal Law § 1618 (3), p. 876, the following appears:
"'Probation' means enlarging a person subject to commitment by suspension of sentence, during the regularity of conduct, and imposing conditions, and on default thereof arresting and committing him until imprisonment is served or the judgment is satisfied. It is in no sense a reduction of sentence, but discipline under supervision without incarceration. . . ."
In
Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029, 1033 (1941), the Court utilized the following definition of "probation" :
"A system of dealing (chiefly) with young persons found guilty of crimes of lesser gravity, and especially the first offenders, wherein these, instead of being sent to prison or otherwise punished are released on suspended sentence during good behavior, and placed under the supervision of a probation officer, who acts as a friend and advisor, but who, in case of the failure of the probationer to fulfill the terms of his probation, can report him back to the court for the execution of the sentence originally imposed."
Furthermore, in connection with probation, the Court said in
Ridley v. Commonwealth, Ky., 287 S.W.2d 156, 158 (1956):
"Under our constitution the manner of probation must be by withholding entry of the judgment and suspending sentence.
Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029. In the first place, it is entirely within the discretion of the trial court whether a defendant shall be given his liberty conditionally. This is regarded as a privilege or a 'species of grace extended to a convicted criminal' for his welfare and the welfare of organized society. . . ."
In a case decided prior to the adoption of the present
Kentucky Penal Code, Commonwealth v. Ballinger, Ky., 412 S.W.2d 576 (1967), the Court dealt with various aspects of probation. Although different statutes were in effect then some of the principles enunciated in that case are, in our opinion, applicable to the statutes now in existence which deal with probation.
The Court, in Ballinger, supra, said that the statute provides that the defendant may be placed on probation but that there is no such thing as the probation of a fine. In addition, the Court said that the word "probation" is not defined in the statute and the probation statutes refer to "imposing of sentence. " A "sentence, " however, may be a fine or imprisonment or both and since the statutes do not limit probation to those cases where the punishment is imprisonment, the probation procedure may be invoked as to a defendant when the punishment is the imposition of a fine only.
In KRS 218A.990, which sets forth the penalties for violations of KRS Chapter 218A (The Kentucky Controlled Substances Act of 1972), a person convicted under the Act, in many instances, may be subjected to confinement in the penitentiary or the payment of a fine or both.
Thus, in our opinion, and in the absence of any reported Kentucky decision since the enactment of the new Kentucky Penal Code, the circuit court could place a defendant on probation even though his sentence would only be the imposition of a fine. However, in probating a defendant, the statutory provisions applicable to probation must be followed. Probation is applied as to a defendant (a person) and while it involves the release of the defendant on suspended sentence during good behavior, there is no such thing as probation of a fine.