Request By:
Hon. James Terry Hodges
Hutchison & Hodges
Attorneys at Law
108 North Reed Street
Columbia, Kentucky 42728
Opinion
Opinion By: Steven L. Beshear, Attorney General; William L. Davis, Assistant Attorney General
In your letter to this office dated November 19, 1982, you stated the following:
KRS 439.265 provides that ". . . any circuit court may, upon motion of the defendant made not earlier than thirty (30) days nor later than ninety (90) days after the defendant has been delivered to the keeper of the institution to which he has been sentenced, suspend the further execution of the sentence and place the defendant on probation upon such terms as the court determines."
Following the November term of the Adair Circuit Court, prisoners have been lodged in the Adair County Jail awaiting transfer to the State Reformatory at Lagrange, Kentucky. The Adair County Jailer has been notified that it may take from sixteen (16) to eighteen (18) weeks before the reformatory will be ready to receive the prisoners.
The question has arisen as to when the 30 to 90 days referred to in the statute herein cited begings to run. The statute does state that it is after the defendant has been delivered to the keeper of the institution to which he has been sentenced; would delivery to the jailer for awaiting transfer meet the language of the statute, or must the prisoners be further penalized because of the institution's crowded conditions and delayed transfer instructions?
Your interpretation of the statute as it pertains to this circumstance would be greatly appreciated.
It will be necessary to note from the outset three basic principles of statutory construction before responding to your inquiries. First, the cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect. Fiscal Court Commissioners of Jefferson County v. Jefferson County Judge/Executive, Ky.App., 614 S.W.2d 954, 957 (1981). Second, the primary rule in determining the intent of the legislature is to ascertain the intention from the words employed in enacting the statute. Kentucky Association of Chiropractors, Inc. v. Jefferson County Medical Society, Ky., 549 S.W.2d 817, 821 (1977). Third, a statute must not be interpreted so as to bring about an unreasonable result. George v. Alcoholic Beverage Control Board, Ky., 421 S.W.2d 569, 571 (1967); Pewee Valley Fire Protection Dist. v. South Oldham Fire Protection District, Ky.App., 570 S.W.2d 290, 292 (1978).
Further, it will be necessary to note the language of KRS 431.060 and KRS 431.130. KRS 431.060 states that:
Offenses are either felonies or misdemeanors. Offenses punishable with death or confinement in the penitentiary are felonies. All other offenses, whether at common law or made so by statute, are misdemeanors. [Emphasis added].
And, KRS 431.130 states that:
Prisoners sentenced to punishment by confinement in the penitentiary shall be kept at hard labor. If the punishment is imprisonment in the jail of the county, the imprisonment shall be close confinement in the jail of the county where the trial was held, unless otherwise provided. . . . [Emphasis added].
Turning our attention to the matter you submitted, we must read KRS 439.265 in conjunction with KRS 439.267. A close examination of these two statutes reveals that the General Assembly intended for KRS 439.265 only to apply to felony convictions and for KRS 439.267 only to apply to misdemeanor convictions. Also, compare Commonwealth v. Cornelius, Ky.App., 606 S.W.2d 172 (1980).
Although the Kentucky appellate courts have not directly addressed the matter you submitted, they have indirectly addressed said matter. Commonwealth Ex Rel. Hancock v. Melton, Ky., 510 S.W.2d 250 (1974); Commonwealth Ex Rel. Molloy v. Meade, Ky.App., 554 S.W.2d 399 (1977). In Melton, supra at 252, the Court stated:
On the question of jurisdiction we think it is clear that the order was not within the authority granted by the statute. Under the plain words of the statute a motion by the defendant must be filed within the thirty-day period that commences thirty days after delivery of the defendant to the penitentiary, and the court must enter its ruling not later than seventy days after the motion is filed. . . [Emphasis added].
Also, the Court in Meade, supra at 401, stated:
It is the opinion of this Court that the case of Commonwealth of Kentucky ex rel. Hancock v. Melton, Ky., 510 S.W.2d 250 is dispositive of the issue here. The head-notes in that case recite:
Probation order under statute authorizing probation on court's own motion must be entered within the 30-day period commencing 30 days after delivery of defendant to penitentiary.
This opinion is not intended in any way to infringe upon the powers of the court to retain control of their judgments for the period provided by the Rules of Civil Procedure. Had the respondent placed the defendants herein in the Fayette County Jail for a period not to exceed ten days, it would clearly be within his power to subsequently probate said defendants. However, once the defendants are committed to the penal institution, it is our opinion that Ky.Rev.Stat. 439.265 is controlling and must be complied with. [Emphasis added].
Based upon the foregoing authorities, it is our opinion that the General Assembly in KRS 439.265 intended for shock probation to be available only to those convicted felons who have served at least thirty (30) days in a state prison and not a county jail. This becomes even more so when you consider the theory behind KRS 439.265. Of course, the theory is that some convicts who have committed serious crimes (usually young first offenders), after confinement in a state prison for thirty (30) days, will be so shocked by the confinement in the prison at hard labor that they won't get into trouble again.
However, it is also our opinion that if a circuit court placed a convicted felon in the county jail, it would clearly be within the circuit court's power to subsequently probate that convicted felon within ten (10) days.
Please feel free to contact us if we may be of further assistance.