Request By:
Hon. Sam W. Arnold, III
Harrison County Attorney
16 East Pike Street
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; Barbara B. Edelman, Assistant Attorney General
As County Attorney for Harrison County, you have asked the Office of the Attorney General to advise you concerning the following question:
WHETHER THE COMMONWEALTH IN A CRIMINAL PROSECUTION CAN APPEAL FROM DISTRICT COURT TO CIRCUIT COURT FOR THE PURPOSE OF CERTIFICATION OF LAW, AND IF SO, WHAT IS THE CORRECT PROCEDURE THE COUNTY ATTORNEY MUST FOLLOW.
Section 115 of the Kentucky Constitution reads as follows:
In all cases, civil and criminal, there shall be allowed as a matter of right, at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the general assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expenditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo. [Emphasis added].
This section clearly authorizes the Commonwealth to appeal from District Court to Circuit Court for the purpose of certification of law. Absent the authority to certify a question of law, the Commonwealth would be unable to challenge adverse rulings of the District Court. Apparently Section 115 of the Constitution, which became effective January 1, 1976, intended to provide at least one challenge in all cases.
It is interesting to note that historically this subject has not always been as clear. KRS 23.032(2), which became effective June 18, 1964, denied the Commonwealth a right of appeal to the circuit court from judgments of courts of inferior jurisdiction. This section was later repealed. Effective January 1, 1975, the legislature enacted KRS 21.140(5) which allowed the prosecution to take an appeal to the circuit court from an adverse decision or ruling of a judge of the police, magistrate's or county court on any question of law; however, this provision was also later repealed. With the enactment of Section 115 of the Kentucky Constitution, it is now apparent an appeal for the purpose of certifying the law is allowed as a matter of right.
The second part of your question is what the proper procedure would be for an appeal to circuit court. RCr 12.02 states that Civil Rule 72 shall also apply in criminal cases. CR 72 specifically deals with appeals from district court to circuit court. Therefore, the procedure to be followed would be by the methods provided in the Civil and Criminal Rules. In other words, the appeal would be subject to the same guidelines and time limitations any appeal from district court to circuit court would have.